UNITED STATES of America, Plaintiff-Appellee, v. Frank SNOWDEN, Defendant-Appellant.
No. 14-5607.
United States Court of Appeals, Sixth Circuit.
March 11, 2015.
With regard to the substantive component, we find that though Ziska‘s offense did not involve his use of photographic equipment, his collection of thousands of images of children makes the restriction on his ownership of photography equipment reasonably related to his rehabilitation and the protection of the public. We have voiced our skepticism about the appropriateness of conditions on supervised release that amount to categorical bans on a defendant‘s access to photo and video equipment, a defendant‘s ability to rent a post office box or a storage unit, and the defendant‘s consumption of alcohol (where nothing in the record indicated that the defendant had a history of substance abuse). Inman, 666 F.3d at 1005. As we noted in Inman, a ban on photo and video equipment is concerning in a world where virtually every mobile phone contains a camera, and there is a possibility that the defendant would want to use a camera in connection with legitimate family or employment activities. See id. Here, our concern is diminished to some extent because rather than imposing a blanket restriction on Ziska‘s use of photography equipment, the district court imposed the less onerous requirement that he obtain the permission of his probation officer before owning or possessing it. It was not an abuse of discretion to determine that case-by-case probation officer approval advances the goals of deterrence, public protection, and rehabilitation without unduly burdening Ziska‘s liberty.
The restriction on photography equipment satisfied the substantive requirements for a supervised release condition. The district court did not state its reasons for this condition and the record evidence addressing the procedural prong is admittedly thin, but our review is only for plain error. We are not convinced that the court‘s procedural shortcomings amount to an “obvious error ... that affected the fairness, integrity, or public reputation” of the judicial proceedings, as would be required for a finding of plain error. Accordingly, we affirm the district court‘s imposition of the post-release condition on Ziska.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court‘s sentencing of Ziska in all respects.
Before: KEITH, MERRITT, and BOGGS, Circuit Judges.
Following a domestic dispute, Defendant Frank Snowden shot at his girlfriend through a wall. He later pointed his gun at police when they arrived on the scene. He pled guilty to one count of being a felon in possession of a firearm in violation of
I. Factual and Procedural Background
In the early morning hours of January 1, 2013, police responded to a domestic disturbance call where several shots had reportedly been fired. Angela Gilley, Snowden‘s live-in girlfriend, had advised dispatch that she had fled from the house and was hiding in a neighbor‘s garage.
Snowden was in the yard when the police arrived. He pointed his gun directly at several of the responding officers, who retreated and set up a perimeter. After a few minutes, Snowden reentered the house before returning to the yard while taping the gun to his hand.1 He proceeded to alternate between pointing the gun at the
In a statement to police, Gilley reported that the incident began after she accused Snowden of stealing three hydrocodone pills and drinking seven beers. A heated argument ensued, during which Snowden screamed at Gilley, knocked over a lamp, and punched their bedroom door. Snowden then used the bedroom phone to call his mother to come get him and his 15-year-old son, who was sleeping upstairs. Meanwhile, Gilley had retreated into an adjacent bathroom. While still inside, she heard five gunshots. Although no bullets passed into the bathroom, police later discovered a tight pattern of five bullet holes in the wall separating the two rooms. They also found shell casings “within inches” of the wall.
Following the incident, police interviewed Gilley‘s son, who had been sleeping in an upstairs bedroom. After being awakened by the commotion below, he heard Gilley crying and Snowden shout, “Where is the bitch at? I am going to kill her.”2 A few seconds later, he heard gunshots and believed that Snowden had killed his mother. At some point, he also heard Snowden say, “There are fixing to be some dead cops in my yard.”
The next day, Snowden made a statement to police. He largely confirmed Gilley‘s version of events, but claimed he never intended any harm by his actions. He stated that he only grabbed the gun from the bedroom because he “might have intended to kill himself.” In an effort to explain firing the weapon, Snowden claimed he had been waving the gun around the bedroom when it accidentally discharged and then continued to fire due to the recoil mechanism. Regarding the events in the yard, Snowden claimed that he went outside to kill himself and only pointed the gun at the responding officers in an effort to make them back away from him.
Snowden pled guilty to one count of being a felon-in-possession of a firearm in violation of
II. Analysis
A. Attempted Second-Degree Murder Cross-Reference—U.S.S.G. § 2A2.1
Snowden argues that the district court should not have applied a cross-reference for attempted murder—raising his Base Offense Level from 14 to 27—because there was insufficient evidence to find that he intended to kill Gilley. Because a determination of criminal responsibility is a mixed question of fact and law, we review it de novo. See United States v. Whited, 473 F.3d 296, 297 (6th Cir. 2007). We review the facts employed by the district court to decide criminal responsibility for clear error. See United States v. Katzopoulos, 437 F.3d 569, 574 (6th Cir. 2006).
To establish attempted second-degree murder, the Government was required to demonstrate by a preponderance of the evidence that Snowden acted with “malice
In this case, the Government showed by a preponderance of the evidence that Snowden intended to kill Gilley. After arguing with her, Snowden screamed, knocked things over, and punched a door. When Gilley retreated to the bathroom, Snowden retrieved a handgun in the adjacent bedroom. He fired five shots into the wall separating the two rooms, and around that same time yelled out, “Where‘s the bitch at? I‘m going to kill her.” Although testimony was inconsistent regarding whether Snowden made this statement before or after firing the gun, it is irrelevant when he made this threat—simply that he made the statement evidences his intent to inflict bodily harm. Additionally, the evidence demonstrated that Snowden must have fired the gun at close range: responding officers noted that the bullet holes were in a tight pattern and found shell casings inches from the wall. Finally, additional proof at sentencing established that the gunshot pattern was such that the gun could not have been discharged accidentally due to the recoil mechanism, as Snowden claims. This evidence discredits Snowden‘s version of events.
B. Assault on Official Victim Enhancement—U.S.S.G. § 3A1.2(c)(1)
Snowden further contends that the district court erred in assessing a six-level enhancement under
Snowden mistakenly argues that he could not have committed aggravated assault upon the officers because he lacked the specific intent to cause bodily injury. Neither the text nor the commentary to
III. Conclusion
For the foregoing reasons, we AFFIRM Snowden‘s sentence.