United States v. Timothy Horton, 2012 U.S. App. LEXIS 18423

Background

Horton, a felon, was convicted for possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924 and sentenced to life.
The August 10, 2007 incident at Horton's girlfriend Timeca Bryant’s home involved gunfire and theft of a gun later linked to a 2006 Exxon burglary.
A separate August 17, 2007 robbery/home invasion and murder of Charmeka Harris occurred; Horton was found by the district court to be involved in the robbery and murder.
The Probation Office and district court treated the Harris murder as relevant conduct to enhance Horton’s offense level under USSG § 2K2.1, using the murder guideline 2A1.1 for a cross-reference.
Horton appealed challenges to substitution of counsel and to denial of a new trial on Brady grounds; the Fourth Circuit rejected those challenges as harmless or unfounded.
The pivotal sentencing issue was whether the district court properly applied the murder cross-reference, which the panel vacated and remanded for resentencing without applying the cross-reference.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the substitute-counsel denial an abuse of discretion?	Horton argued the court abused its discretion in denying substitute counsel.	The government contends no reversible error occurred.	Harmless error; conviction affirmed.
Was Horton entitled to a new trial based on Brady evidence?	Brady material (the Miller Report) should have been disclosed and could impeach officers.	Disclosure was not legally required or not material to outcome; no Brady violation.	No Brady violation; no new trial.
Did the district court properly apply the murder cross-reference under USSG § 2K2.1(c)(l) and Relevant Conduct Guidelines?	Cross-reference applies when both offenses are groupable under the Relevant Conduct Guideline.	Cross-reference should apply because the murder was part of a broader course of conduct tied to the felon-in-possession offense.	Cross-reference misapplied; vacate sentence and remand for resentencing.
Was Horton’s August 17 murder properly treated as relevant conduct under the Grouping Guideline (3D1.2) and USSG § 1B1.3?	The murder was groupable with the felon-in-possession offense, making cross-reference appropriate.	Murder offenses are excluded from grouping; cross-reference cannot rely on a non-groupable offense.	Grouping inapplicable; cross-reference cannot be used to enhance the sentence.
If cross-reference was improper, should the sentence be vacated or remanded for resentencing with guidance on § 3553(a)?	Remand should address whether Harris murder could support a variance; the base issue is the cross-reference error.	Resentencing should occur with appropriate guidance on 3553(a) factors.	Remand for resentencing; do not apply the murder cross-reference on remand.

Key Cases Cited

United States v. Williams, 431 F.3d 767 (11th Cir. 2005) (grouping issues with murder cross-reference; approach to groupable offenses)
United States v. Pauley, 289 F.3d 254 (4th Cir. 2002) (discussion of relevance of cross-references and grouping; reliance on § 1B1.3(a)(2))
United States v. Jones, 313 F.3d 1019 (7th Cir. 2002) (cross-reference and grouping considerations; homicide exclusion from grouping)
United States v. Kulick, 629 F.3d 165 (3d Cir. 2010) (touches on cross-reference application and grouping limitations)
United States v. Wright, 594 F.3d 259 (4th Cir. 2010) (relevant conduct framework and appellate review standards)
United States v. Levario-Quiroz, 161 F.3d 903 (5th Cir. 1998) (relevant conduct scope and grouping considerations)
United States v. Settle, 414 F.3d 629 (6th Cir. 2005) (grouping and cross-reference discussion in cross-reference context)
United States v. Williams, 431 F.3d 772 (11th Cir. 2005) (any firearm interpretation in cross-reference context)
United States v. Susi, 674 F.3d 278 (4th Cir. 2012) (remand and sentencing considerations; harmless-error discussions)
Bell v. United States, 5 F.3d 64 (4th Cir. 1993) (district court authority on remand and resentence)