Andre Tony Walls appeals his convictions and sentences for one count of receiving and possessing a stolen vehicle which traveled in interstate commerce, 18 U.S.C. § 2313, and two counts of possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g) and *240 924(a)(2). 1 Walls argues that the distriсt court erred in joining for trial the two firearm charges. Walls also seeks a remand for resentencing and for an evidentiary hearing on his claim of ineffective assistance of counsel. We affirm.
BACKGROUND
Although Walls was convicted of the run of the mill offenses of possessing a stolen vehicle and being a felon in possession of a weapon, the district court sentenced him as a murdering drug dealer. Not surprisingly, Walls would rather have been sentenced as a gun toting ear thief. The difference is significant: a range of 57 to 71 months versus his actual sentence оf 122 months.
Prior to sentencing, the government announced its intention to seek an upward departure based on Walls’ conduct during his 1989 possession of a weapon and various uncharged drug transactions. At sentencing, the government introduced evidence illustrating Walls’ criminal history. This included various drug dealing transactions for which Walls had not been charged. Based on Walls’ drug dealing, the district court, pursuant to U.S.S.G. § 4A1.3, concluded that five criminal history points should be added to Walls’ criminal history because his criminal record did not reflect the seriousness of his previous criminal conduct. As a result, Walls had a criminal history in category IV instead of category II. Walls does not challenge this upward departure.
The central focus at sentencing was on the facts surrounding Walls’ illegal possession of a firearm in 1989. In particular, the issue was whether Walls’ сonduct “resulted” in the death of an innocent bystander — Euclid Lewis. If so, the Sentencing Guidelines required Walls to be sentenced under the Homicide Guidelines. U.S.S.G. §§ 2K2.1(c), 2A1.1-4. This would result in a substantial upward departure.
As it turns out, Walls did not merely possess a weapon. This is what the record shows: In 1988, Walls was shot by Aaron
Allen. Walls reported this shooting to the police, but, despite knowing that Alien was the shooter, neglected to identify Allen. He also left out the fact that Allen had robbed him of some drugs. Now fast forward to 1989. Allen confronted Walls while he was playing basketball. Walls decided that hе needed to straighten things out with Allen and let Allen know that he did not want to fight anymore. However, this would be no mere téte-a-téte. Walls gathered a group of armed men and proceeded to Allen’s house. At this point, the facts become somewhat confused, but this much is clear: As the group approached Allen’s house, a gunfight ensued. Walls says (he gave a statement to the Milwaukee police in 1989) that he fired his .25 caliber handgun blindly toward the house. Tragically, a 53 year old neighbor, Euclid Lewis, was shot and killed as he tried to usher people into his house. Walls mаintains that his bullets did not kill Lewis. Instead, he contends that one of his confederates, Millard Bandy, fired the fatal shots from his 9 millimeter handgun. The State of Wisconsin prosecuted Walls for murder, but the trial court dismissed the charges when the police refused to identify an informant.
At sentencing in the district court, the government submitted a summary of the Lewis homicide file in an effort to prove that Walls’ actions had “resulted” in Lewis’ death. The government also introduced Walls’ statement given to the Milwaukee Police in 1989. Walls’ wife testified that Walls did not intend to harm Allen when he went to his house in 1989. In additiоn, Walls’ attorney from his state court murder prosecution testified that he would have produced expert testimony that Millard Bandy fired the fatal shots.
The district court found that Walls’ actions resulted in Lewis’ death and departed accordingly. In particular, the district court found that, rеgardless of whether Walls fired the fatal shot, he “put in motion this series of events that resulted in the taking of a human life.... I believe there is a very, very direct nexus between the possession of a firearm charge ... and Euclid Lewis’ death.” The *241 district court cross-referenced the Homicide Guidelines and decided that Walls’ actions fell somewhere between voluntary manslaughter and second degree murder. U.S.S.G. §§ 2A1.2, 2A1.3. It then split the difference between the relevant offense levels and found that the appropriate offense level was 29. After applying а two level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a), the district court sentenced Walls to 122 months imprisonment and three years of supervised release. The district court also sentenced Walls to 12 months on the stolen vehicle conviction, to be served concurrently with the 122 month sentence. Walls does not challenge this sentence.
ANALYSIS
We apply a three-step approach in reviewing an upward departure: (1) we review
de novo
the district court’s reason for departing upward; (2) we review for clear еrror whether the facts that support the grounds for departure actually exist; and (3) we examine the extent of the departure deferentially.
United States v. Ewers,
A. Cross-Referencing the Homicide Guidelines
The central issue here is Walls’ culpability for Lewis’ death. The Guidelines provide the instructions for answering this question. Sort of. U.S.S.G. § 2K2.1(c) instructs the sentencing court that if “death results” from the possession of a weapon during the commission of another оffense, the court should cross-reference the “most analogous offense guideline from Chapter Two, Part A, Subpart 1” — the Homicide Guidelines.
United States v. Smith,
We have not yet had occasion to define “resulting in death” for purposes of U.S.S.G. § 2K2.1(c). However, we have discussed the concept in reference tо U.S.S.G. § 5K2.1, the general “death results” Guideline. In
United States v. White,
Therefore, the question is whether Walls’ conduct was intentional or reckless and whether Lewis’ death was a foreseeable risk of Walls’ conduct. It was. Even under Walls’ version of the events, Walls armed himself to go “talk” with a man who had, within the previous year, shot Walls and stolen his drugs. Walls was accompanied by a number of men who also were armed. Clearly they realized that gunfire was possi *242 ble, if not probable. Once the gunfight began, Walls shot blindly towards Allen’s house. We agree with the district court’s finding that Walls, like thе defendant in White, put into motion a chain of events that ended in a tragedy. Regardless of whether Walls fired the fatal shot, for purposes of § 2K2.1, Walls’ conduct resulted in Lewis’ death.
The next step in the analysis is not simple. The district court had four choices for most analogous homiсide: first degree murder, second degree murder, voluntary manslaughter, or involuntary manslaughter. U.S.S.G. §§ 2A1.1-4. The district court did not have much guidance in choosing the appropriate analogy. Although there is a wealth of state statutory and common law elaborating on the gradations of homicide, there is a relative paucity of federal authority. In addition, the Guidelines’ instruction to choose the most “analogous” level of homicide means that the district court has some discretion about which kind of homicide is most appropriate.
No one аrgued seriously in the district court that Walls’ conduct was analogous to first degree murder. The court found no evidence of “malice aforethought,” 2 and Walls’ conduct did not fit any of the situations described in 18 U.S.C. § 1111(a). The government presented a number of theories, including transferred intent аnd joint venture, to support its argument that Walls had committed second degree murder. However, we agree with the district court that second degree murder was inappropriate as it also requires malice aforethought. 18 U.S.C. § 1111(a). Voluntary manslaughter also was not quite right beсause it is defined as “the unlawful killing without malice upon a sudden quarrel or heat of passion.” 18 U.S.C. § 1112. Furthermore, involuntary manslaughter was not a perfect fit because it is defined as “unlawful killing without malice ... [i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.” 18 U.S.C. § 1112. Again, this did not apply because Lewis’ death resulted during the commission of a felony.
Given the above, what was the district court to do? The district court decided that Walls’ conduсt fell halfway between second degree murder and voluntary manslaughter. This may seem odd, but under the Guidelines’ instruction to find the “analogous” homicide, it is reasonable. We previously approved a district court’s use of this “split the difference” (or as Judge Skinner called it at oral argument “glissando”) methodology in
White,
B. Joinder
Walls’ claim that the district court erred in joining the two felon-in-possession charges at trial is wholly without merit. Rule 8(a) of the Federal Rules of Criminal Procedure provides:
Two or more offenses may be сharged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or *243 transactions connected together or constituting parts of a common scheme or plan.
Walls pins his misjoinder argument on the facts that the two charges concerned incidents four years apart and involving two different types of handguns. This argument falls in the face of
United States v. Coleman,
C. Ineffective Assistance of Counsel
Walls also argues that his attorney was ineffective.
3
We have cautioned repeatedly that appellants should not bring ineffective assistance claims on direct appeal.
See, e.g., United States v. Davenport,
“[OJrdinarily, the appropriate route to raise an ineffective assistance claim is not viа a screening in the court of appeals but by motion to the district court under 28 U.S.C. § 2255.”
United States v. Fischer,
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
Affirmed.
Notes
. The three counts were joined for sentencing purposes. However, Walls raises no challenge to his conviction under 18 U.S.C. § 2313.
. We previously havе defined "malice aforethought” to include "a predetermination to commit an act without legal justification or excuse. ... A malicious design to injure.... The intentional doing of an unlawful act which was determined upon before it was executed....” United States v. Prevatte, 16 F.3d 767, 780 (7th Cir.1994) (citations omitted).
. A detailed discussion of the facts underlying Walls' ineffective counsel claim is unnecessary given our disposition of this issue.