United States v. Calvin Morgan
2012 U.S. App. LEXIS 16348
| 6th Cir. | 2012Background
- Morgan pleaded guilty to four counts arising from marijuana possession and discharging a firearm during a warrant execution; total sentence 201 months
- District court applied cross-reference to attempted murder under § 2K2.1(c)(1)(A) for the prohibited-possession conviction and imposed an upward § 924(c) departure after considering the cross-reference
- Plea preserved Morgan’s challenge to cross-reference; district court credited separate § 924(c) considerations
- Finding of intent to kill was not actually made, but court concluded attempted murder cross-reference applied due to knowledge of officers’ presence
- District court relied on direction that gun was pointed at officers’ heads to justify § 924(c) upward departure; sentence consisted of concurrent 57-months on two counts and 144-months on § 924(c)
- This court vacates and remands for resentencing consistent with its opinion
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double counting of gun conduct in sentence | Morgan | Morgan claims counting the gun twice violated rules | Remand due to potential impermissible double counting |
| Cross-reference to attempted murder proper given lack of actual intent | Morgan | Morgan lacked specific intent to kill | Remand; requirement of actual intent to kill not shown |
| Cross-reference permissible when gun conduct already punished by § 924(c) | Morgan | Cross-reference could be separate from § 924(c) punishment | Remand; possible improper cross-reference; issues preserved for reconsideration |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (procedural and substantive reasonableness framework for sentencing)
- United States v. Lanning, 633 F.3d 469 (6th Cir. 2011) (standard for reviewing procedural reasonableness of sentences)
- Simmons v. United States, 587 F.3d 348 (6th Cir. 2009) (preservation of sentencing objections under Bostic rule)
- Hazelwood v. United States, 398 F.3d 792 (6th Cir. 2005) (avoid double counting firearm enhancements with § 924(c))
- Battaglia v. United States, 624 F.3d 348 (6th Cir. 2010) (permissible double counting limits; separation of conduct)
- United States v. Turner, 436 F. App’x 631 (6th Cir. 2011) (need for actual intent to kill for attempted-murder cross-reference)
- Braxton v. United States, 500 U.S. 344 (U.S. 1991) (necessity of specific intent for attempted murder)
- Duckro v. United States, 466 F.3d 438 (6th Cir. 2006) (focus on time/separation of conduct for double counting)
- Farrow v. United States, 198 F.3d 179 (6th Cir. 2000) (double-counting framework in sentencing)
- Simmons v. United States (duplicate), 587 F.3d 348 (6th Cir. 2009) (see above)
- United States v. Stewart, 628 F.3d 246 (6th Cir. 2010) (firearm-related enhancements and § 924(c) interplay)