United States v. Tory John Starr
717 F. App’x 918
| 11th Cir. | 2017Background
- Starr pled guilty to possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and stipulated to being arrested with ammunition in his car after an incident at a convenience store.
- The PSR alleged Starr entered the store, produced a handgun, fired at Officer Blanco, fled, and later told police he was trying to kill the officer; PSR recommended cross‑referencing to attempted first‑degree murder.
- The PSR applied U.S.S.G. § 2K2.1(c)(1) (cross‑reference) to use § 2A2.1 (attempted first‑degree murder), producing an offense level that exceeded the statutory maximum; the PSR therefore capped the guideline sentence at the statutory maximum of 120 months.
- Starr objected at sentencing, disputing the nexus between the ammunition found and the store incident, and requested an evidentiary hearing; the district court held a hearing and heard Officer Blanco’s testimony and surveillance video.
- The district court made limited factual findings (e.g., Starr entered the store, pointed a gun, shots were fired, Starr fled) and sentenced Starr to 120 months, but did not expressly find by a preponderance that the ammunition cited in the conviction was used in connection with attempted first‑degree murder or that Starr had the specific intent and took a substantial step for attempted first‑degree murder.
- The Eleventh Circuit vacated and remanded for resentencing, concluding the district court failed to make the explicit factual findings required to apply the § 2K2.1(c)(1) cross‑reference and § 2A2.1, and directed correction of a clerical error in the judgment (conviction description).
Issues
| Issue | Plaintiff's Argument (Starr) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether § 2K2.1(c)(1) cross‑reference applies (ammunition "in connection with" another offense) | Ammunition in car was not proven to be used in or facilitate the store incident; no nexus shown | Starr failed to properly preserve objections to PSR; evidence (testimony, video, statements) supported cross‑reference | Vacated and remanded — court did not make required preponderance findings that the ammunition cited in conviction was used in connection with the attempted offense; remand for explicit findings if cross‑reference applied |
| Whether § 2A2.1 (attempted first‑degree murder) applies via cross‑reference (specific intent and substantial step) | Government did not prove specific intent to kill or substantial step by preponderance; district court made no explicit findings | PSR and hearing evidence supported application; courts ordinarily should make findings and can rely on PSR or hearing | Vacated and remanded — district court failed to make explicit findings of intent and substantial step; remand to reexamine applicability and make findings |
| Whether judgment contains clerical error (conviction description) | N/A (defendant noted discrepancy) | Government does not contest correction | Vacated and remanded for correction — judgment incorrectly states possession of a firearm and ammunition instead of possession of ammunition only |
Key Cases Cited
- United States v. Smith, 480 F.3d 1277 (11th Cir. 2007) (expansive interpretation of "in connection with" in firearms context)
- United States v. Lawrence, 47 F.3d 1559 (11th Cir. 1995) (government bears preponderance burden to prove disputed PSR facts)
- United States v. Mock, 523 F.3d 1299 (11th Cir. 2008) (vacatur and remand where district court failed to make explicit findings applying § 2A2.1)
- Braxton v. United States, 500 U.S. 344 (1991) (requirement that intent to kill be established to apply attempted murder guideline)
- United States v. Daniels, 685 F.3d 1237 (11th Cir. 2012) (record must support sentencing court's determinations; lack of individualized findings can frustrate review)
- United States v. Massey, 443 F.3d 814 (11th Cir. 2006) (court may correct clerical errors in judgments; fundamental error to enter judgment for uncharged offense)