*1 Protection Equal Due Process and Clauses
of the United States Constitution. We the record does not
also conclude court’s determination
support district does not from a “suffer[] Wooden illness, abnormality, or
serious mental dis- longer he no from
order” because suffers 4247(a)(6), 18 U.S.C.A. nor
pedophilia, support
does the record the district court’s
determination that Wooden would not have difficulty refraining sexually
“serious child
violent conduct or molestation if re-
leased,” id., hereby and we reverse those findings clearly
factual erroneous.
Accordingly, we reverse the district judgment dismissing govern-
court’s Wooden, petition seeking to commit
ment’s remand the matter to the district remand, for reconsideration. On reconsider, court shall on the basis existing light record and
questions original about the district court’s
analysis and the concerns about the exist- opinion, evidence raised this wheth- sexually dangerous person er Wooden is See also WL 666250. meaning of the Act. within AND REMANDED REVERSED America,
UNITED STATES
Plaintiff-Appellee,
Timothy Tyrone HORTON,
Defendant-Appellant.
No. 11-4052. Appeals,
United Court of States
Fourth Circuit.
Argued: May 2012. Aug.
Decided: *2 provision United States
cross-reference (“USSG” Sentencing Guidelines Manual “Guidelines”) 2K2.1(c)(l) and in treat- ing as relevant conduct murder *3 during occurred the course anof unrelated offense, uncharged and which error sub- stantially advisory increased Horton’s range. Guidelines Accordingly, we vacate Horton’s sentence and remand for resen- tencing. I. Background and Proceedings Below Forehand,
ARGUED: Samuel A. Law The offense for which Horton was Forehand, PA, Office of Samuel A. Ra- charged, ultimately and convicted a Carolina, leigh, Appellant. North for jury, on August occurred 2007.1 On Fritz, L. of Kristine Office the United date, Horton was at the Carolina, home his Attorney, Raleigh, States North girlfriend, Bryant. Timeca couple ar- Appellee. BRIEF: ON Thomas G. gued Walker, Bryant after Ms. Attorney, United States learned Horton Jennifer had gun, a which he May-Parker, P. Assistant United told her he was holding States a Attorney, and, Office of the United At- friend. Horton States left the home while Carolina, torney, Raleigh, outside, North for Ap- shots, fired three one of which hit pellee. Bryant’s Ms. unoccupied vehicle. He fired the other two into the air. Bryant Ms. AGEE, DAVIS, THACKER, Before and came out and gun. obtained Horton’s She Judges. Circuit home, then returned to her taking gun her, with and locked herself inside. Once in part, part, Affirmed vacated in and inside, she police, called the and Horton part by published opinion. remanded in left premises. arrived, police When Judge opinion, AGEE wrote the in which officers found spent casings, three .22 a Judge joined. Judge THACKER DAVIS car, bullet Bryant’s hole Ms. and re- a separate opinion concurring wrote Bryant gun trieved from Ms. .22 part concurring and the judgment. —a rifle with a sawed-off stock and sawed-off OPINION Investigation barrel. revealed that gun had been stolen during breaking a and AGEE, Judge: Circuit entering of an Exxon in July store Timothy Tyrone Horton appeals his con- February Horton contacted the possessing viction for a firearm while a police and speak said he wanted to with felon, convicted in violation of 18 U.S.C. incident, them about this point which he §§ 922(g)(1) and and appeals also to possession gun confessed on Au- imposition district court’s of a sentence of gust 2007. He was arrested and imprisonment. life For the reasons set herein, charged in violating forth we affirm this case with Horton’s convic- conclude, however, §§ 922(g)(1) tion. We U.S.C. being the dis- a felon applying trict court erred in the murder a possession firearm. provide aspects
1. We a broad overview of the facts factual of the case in context. procedural here and discuss additional that, although “he has Constitu- to Horton proceeded guilty and pled not Horton if counsel court-appointed right first trial tional jury his by jury. The a trial attorney, to afford an he is not he is unable a verdict and reach unable to attorney appointment entitled After second a mistrial. court declared (JA (citations omitted).) and he his choice.” trial, guilty jury found that he further informed Horton The order court to life by the district was sentenced court-appointed with his “go could forward timely mo- Horton filed imprisonment. counsel, “repre- or he could trial, Speaks,” Mr. the district court tion for new himself, acting Speaks with Mr. both the sent timely appealed from He denied. him legal to assist sentence, back-up counsel and from the de- conviction *4 89.) (Id. at In may that arise.” questions trial. for new nial of his motion order, court also noted that its jurisdiction pursuant has This Court required prior to his Horton would be and 18 U.S.C. 1291 28 U.S.C. 8, 2008, on December to ad- arraignment he court under oath whether vise the Challenges to the Conviction II. Speaks’ represen- to continue with wanted con- challenges two to his Horton raises represent Speaks tation or to himself with First, contends that the dis- he viction. inquiry never back-up counsel. This denying its discretion trict court abused although gen- the cоurt did ask place, took counsel. for substitution of his motion satisfac- questions regarding eral Horton’s Second, that the district court argues he did not attorney, this and Horton tion with denying his motion its discretion abused Hor- express any dissatisfaction. Neither Horton predicated trial on what for new ever raised the issue with Speaks ton nor failure to as the Government’s describes again Speaks represented and the court evidence impeachment material disclose at trials. Horton both 83, Maryland, 83 Brady under v. 373 U.S. 17, 2010, February approximately (1963). On 1194, 10 215 For the L.Ed.2d S.Ct. jury verdict con- three months after the below, reject both of reasons discussed Horton, Speaks moved to withdraw victing challenges. these His motion included representation. A. Motion to Substitute Counsel Horton, that “[d]ur- the statement he and Attorney-Client Re- ing the course claim that the first address Horton’s We impasse ... have reached an lationship in denying court erred his motion irreconcilable differences” resulting from Speaks counsel. Clarke was for substitute impasse “preventing] was and this as Horton’s counsel on March appointed necessary prepare the communication 2008, 25, 1, two months 2008. On October (JA adequate an implement defense.” arraignment, his before scheduled 587.) granted The court the motion with- counsel, pro filed a se motion for substitute the Federal hearing, out a and directed motion, In the Hor- his first such motion. coun- assign Public Defender to substitute “not satisfied ton asserted that he was sel, which was done. Speaks representation Mr. [sic] Clark in [his] [in- it be best believe[d] [to] the denial of Horton’s We review (JA change terest for a of counsel....” motion for substitute counsel for abuse 87.) He offered no additional details Smith, v. discretion. See United States support of his motion. (4th Cir.2011). F.3d 587-91 & n. 6 640 court has denied the motion In cases where a district The district court denied request by replace a defendant to one in an order filed October hearing without order, lawyer with another court- court-appointed court 2008. In that “advised” Court lawyer, garded.”); Young, this considers United States v. appointed 1,13 10, 105 U.S. factors determine whether n. S.Ct. three L.Ed.2d (1985) (in addressing prosecuto “ceased to claim appointment initial constitute misstatements, rial “a reviewing Amendment assistance of counsel”: Sixth (2) “(1) motion; could an proper the timeliness of the reverse otherwise convic inqui- subsequent concluding of the court’s tion after adequacy error (3) harmless.”); ry; attorney/client was not ‘whether United States v. Wilks, (7th Cir.1995) great conflict was so had resulted (“Even preventing lack of an if ... total communication district court abused its adequate (quoting defense.’” Id. discretion when it denied [the defendant’s] counsel, Gallop, request for new an United States such error (4th Cir.1988)). harmless” because defendant [was] failed to show that counsel rendered constitution here, it is clear Applying these factors ally ineffeсtive assistance and thus there made, timely that the motion and the violation). was no Sixth Amendment not otherwise. Government does contend case, Similarly, eon- the Government does not this there is clear evidence that *5 Speaks it-that court provided adequate tend-nor could district an defense at any inquiry example, into reasons Hor- For pre-trial made for both trials. he filed limine, dissatisfaction with his counsel. This motions in he cross-examined gov- ton’s Smith, witnesses, distinguishes strongly fact this case ernment and he advo- there into for his inquiry throughout which was least some cated client both trial Indeed, proceedings. the reasons for dissatisfaction and we the first trial result- in hung jury, held there was no abuse of discretion. ed which is attributable in Here, part Speaks’ performance court’s com- to because district some as an any plete inquiry, adequate failure to conduct this advocate for Horton. essentially incomplete left an Court with Notably, identify Horton does not —let upon to third record determine the any specific way alone in which his show— factor: extent breakdown hampered by any defense was lack of com- and it so communication whether was fact, munication with his counsel. In on an great prevented adequate that de- two different occasions after Horton’s mo- assume, Accordingly, with- fense. we will denied, tion to appeared substitute was he deciding, out that district court abused district placed before the court and was motion denying its discretion Horton’s By under oath. his failure to other- assert conducting any inquiry into the without in response questions wise to posed reasons his dissatisfaction with counsel court, “ample Horton indicated that he had any inquiry any or as to the extent of to with opportunity discuss his case his breakdown in communication. attorney,” that he his had “discussed case attorney,” with his and that he was “com- We nonetheless conclude that Hor fully pletely and satisfied with his attor- not ton is entitled to a reversal his (JA 120.) ney’s Thus, services.” JA was conviction because the error harmless representations Horton’s any not him. own to prejudice and did result to 52(a) See, error, significant refute that there e.g., (“Any Fed.R.Crim.P. were commu- defect, problems prior during or nication to irregularity, variance that does disre- rights not affect substantial must be trials.2 representations right these to the court fur- and that Horton's Sixth Amendment to While violated, support and ther our conclusion that Horton counsel was not we do not treat his counsel were still able to communicate point Fanelly Raleigh Department and Police indicates that at some record prior Fanelly conducting Nickel.3 was convicted Officer
after with- merely pres- asked to sentencing, when counsel interview and Nickel was in fact communica- replaced, trial, Fanelly and was draw At testi- ent. Horton’s first be- to some extent tion had broken down that he did not record the interview fied But on Speaks Horton. based tween agents ATF never record inter- because us, we complete record before conclude views, he did not if the interview know appoint substi- any failing error devices, equipped recording room was requested at the time Horton tute counsel not to use such and he did know how Accordingly, harmless. Horton is it was testify at the devices. Nickel did not first not entitled to have his conviction vacated trial. ground. on this trial, officers At the second both testi- they that the did not fied reason record B. Motion for New Trial interrogation their of Horton was that it to his convic- challenge Horton’s second investigation, did not relate a homicide on the court’s denial tion is based only required recording and the law such motion for a new trial. of his part investigations.4 of homicide Fanel- motion, alleged he the Government that, ly also testified at the start of the impeachment ev- failed to disclose material interview, [they he “told what [Horton] argues until after his trials. He idence about, there to talk were] [Horton] deny- that the district court’s order appeal said he wanted talk about the—his ar- motion an abuse of ing his constituted having gun rest at —recovered at *6 that a discretion and he is entitled to new 446.) (JA girlfriend’s his house.” trial. appeal, signif- much On Horton attaches argument alleged Horton’s to the as juries icance to the fact that both asked testimony Brady the evidence focuses on questions regarding confession. his the police his confes- regarding of two officers trial, the whether jury inquired first Hor- offense, charged the was sion to which not police ton’s statement to the was docu- the the videotaped, and reasons for failure second, jury In the mented. the asked to Specifically, to do so. at both trials the transcript “see the interview ... if [a] juries concerning heard evidence Horton’s (JA 521.) posits is one[.]” there Horton possessing unrecorded confession the the explanation by that additional offered firearm, during which he a custodial made trial, the officers his second he February interview on 2008. There false, contends was the scales in present tipped two officers at the time of were confession, Special Agent Horton’s ATF favor of conviction. by spellings adopted parties these communications as a waiver Horton the the before this issue, argues as Government Court. court, appeared should. When he Horton’s already for had motion substitute counsel requiring 4. The North law Carolina re- and he been denied had been informed that cording of a related to homicide interviews proceed pro his choices were to either se 1, 2008, did not take effect until March after Speaks repre- back-up as counsel or be conducted, interview at a issue was faсt by Speaks. sented Under these circum- Thus, acknowledges that in his brief. Horton stances, preserved we conclude that Horton that, allegation no even if he there is were a Sixth Amendment that claim based on denial. suspect homicide and this was homicide interview, by required the interview was state spelled in
3. The two officers' names are dif- law to be recorded at that time. ways throughout ferent record. We use trial, trial, new Horton In his motion for well before the first that the defen- investigative police report that an subject claimed dant was an ongoing [the] homi- by Raleigh R. Miller of the Po- prepared investigation cide at the time he was inter- (“the Report”) (See Miller Department lice February viewed on J.A. 82-83.)” (Gov’t Brady 60, 67-69, 72, 42.) was evidence should have Br. at trial, prior been disclosed but which notes, As the Government at the hearing Horton, According report was not. suppress, on Horton’s motion to Fanelly that, 9, 2007, shows at least October testified that he had informed Horton he was, “Raleigh Department Police being investigated for number of fact, conducting investigation a homicide crimes, including drug-related “a homi- was, fact, “Fanelly of Horton” and that (JA 67), cide” but that Horton “said he (JA investigation.” involved in [that] didn’t want to talk about the homicide or Trial.) argued Mot. for New carjacking, just that he wanted to talk he was entitled to a new trial because the gun about the recovery August 10th.” report Government never disclosed thаt (JA 69.) Fanelly farther testified at the him,5 and he “should [have been] able suppression hearing that he made it “per- Report] to use Miller to rebut Nick- [the fectly clear” to Horton that (Fanelly) he Family's they el’s and testimonies that homicide, wanted to talk about the but February to record their 4 declined it, when Horton refused to Fanelly discuss ground of Horton on the interview let him talk about said interview was not related to a homi- (JA 72.) So, incident. the fact that Hor- investigation, cide as well as to impeach suspect ton was a homicide at the time of Fanelly’s credibility Nickel’s testi- February 2008 interview was well (JA 822.) fying to same.” known to Horton and his counsel at least early suppression as the hearing, and that, denying
Horton contends
his
certainly before trial.
trial,
motion
new
the district court
applied
wrong legal standard and thus
points
Government further
to the
argues
abused its discretion.6 He also
important fact that Horton’s “trial counsel
that, applying
proper
standard for
*7
successfully moved in limine before both
violations,
Brady
he is entitled to a new trials to exclude from
‘any
evidence
refer-
trial.
ence to the existence
pending
[of other
that,
charges],
response,
posits
any
In
the Government
as well as
detail or circum-
”
although
report
might
surrounding
itself
stances
such
charges.’
not have
(Gov’t
(alteration
trial,
prior
been disclosed
both “the
Br. at 44
in original).)
aware,
defendant and trial counsel were
Accordingly, tо introduce evidence of the
Instead,
analyzed
5. The motion included an affidavit from trial
it
Horton's motion under
counsel, Speaks, which he
averred that the
the standards in our decisions in United States
Bales,
1289,
(4th
provided
report
1987),
Government had never
v.
813 F.2d
1295
Cir.
him,
Custis,
during my
1355,
and that
no time
"[a]t
service
and United States v.
988 F.2d
any
(4th Cir.1993),
as defense counsel
... did I have
reason
applicable
analyzing
1359
February
to believe that the 4
2008 custodial
newly-discovered
requires
whether
evidence
a
Special
interview of the defendant
that ATF
conducting
analysis,
new trial.
its
Agent Fanelly
Raleigh
Department
Police
district court reasoned that even if the evi-
Raleigh
Nickel
at
Officer
conducted
Police
impeach
dence had been used to
the credibili-
Department was related to a homicide investi-
ty
Fanelly,
of Nickel and
the evidence was not
(JA 894.)
gation.”
likely
acquittal.
argues
to result in an
Horton
test,
wrong
that this was the
and the Govern-
motion,
denying
In its order
the district
ment does not
that
contest
assertion in its
apply
Brady-type analysis.
court did not
a
brief.
faith
prosecution.”
faith or bad
fact that Horton
or the mere
Report
Miller
87,
at
1194. In order
373 U.S.
83 S.Ct.
would have contra-
suspect
was a homicide
failure
prove
that the Government’s
ruling on
prior
court’s
dicted
to tender certain evidence constitutes
Finally,
motion
limine.
Horton’s own
violation, the burden
on
Brady
rest[s]
that Horton is
argues
the Government
that the undis-
to show
impeachment
[the defendant]
overstating
appeal
(1)
him
favorable to
closed evidence
Report. The Govern-
of the Miller
value
exculpatory,
it is
be-
convincing.
either because
are
arguments
ment’s
(2) material to
impeaching;
cause it is
is settled:
of review here
The standard
defense, i.e.,
must have
“prejudice
on an
a new trial based
[m]otions
(3)
ensued”;
prosecution
that
are reviewed
alleged Brady violation
disclose
materials and failed to
had
It is an abuse
of discretion.
abuse
Stokes,
v.
261 F.3d
them. United States
court to com-
for the district
discretion
(4th Cir.2001).
496, 502
improperly
legal
mit a
error —such
at
624 F.3d
660-61.
Brady
determining whether there was
the relevant con-
underlying legal
explained
de-
further
We
violation—and
‘exculpatory’
is
cepts as follows: “Evidence
is reviewed de novo. See
termination
Llamas,
381,
‘may
if it
make the differ-
and ‘favorable’
v.
599 F.3d
United States
Cir.2010)
(4th
acquittal’ had
ence
conviction and
(quoting United
between
(4th
468,
effectively.’
it been ‘disclosed and used
Delfino, 510 F.3d
States v.
Cir.2007) (“A
667, 676,
Bagley,
States v.
473 U.S.
district court abuses its United
(1985).
L.Ed.2d 481
an error of 105 S.Ct.
discretion when
commits
law.”)).
‘likely
if it
to have
Evidence is ‘material’
Branker,
changed
Moseley
the verdict.’
v.
Wilson,
v.
624 F.3d
States
United
(4th Cir.2008).” Wilson,
F.3d
Cir.2010).
(4th
n. 24
As we have
660-61
661;
Kelly,
see Winston
noted,
wrong
applied
the district court
(4th Cir.2010) (“[T]he
mate-
claim,
supra
legal
to Horton’s
see
standard
riality
Brady
requires
element of a
claim
fully
the record before us is
at note
but
assessment of whether introduc-
collective
that we can address Hor-
developed such
might
evidence
exculpatory
tion of the
argument
alleged Brady
ton’s
as to an
trial.”).
have affected the outcome
Applying
proper
de novo.
violation
standard,
Horton
legal
we conclude that
here, we con
Applying this test
that a
violation
Brady
has not established
satisfy
cannot
the sec
clude
or that
is entitled
a new
occurred
he
factor,
i.e.,
ond
introduction of
trial.
exculpatory
might
evidence
have affected
*8
Wilson,
frame-
In
we set forth the basic
trial;
the outcome of the
we thus need not
analysis
for a new trial motion
work
Impor
or third
address the first
factors.7
Brady
based on a
violation:
that
tantly,
agree
with the Government
Report
“that
the Miller
would have had mini
Brady,
Supreme
In
the
Court held
any,
credibility
if
the
of the
prosecution
impact,
of mal
on
suppression
the
the
officers. This is so because the officers
upon
evidence favorable to an accused
plausible explanation,
had a
consistent
request
process
violates due
where
testimony
their
and the Miller Re
guilt
evidence is material either to
or to with
insig-
good port,
report largely
that renders the
punishment,
irrespective Although
for new trial on the lack of effect on
7.
it used the different Custis/Bales
trial,
analysis,
supra
see
n.
the district court
as well.
outcome
properly based its denial of Horton's motion
is,
obviously
prejudicial,
at the
ton
Fanelly
That
testified
believed was
nificant.
a he would not have moved in limine to
hearing
Horton was
suppression
trade-off,
homicide,
exclude it. Given
we think
that the inter-
this
in a
but
suspect
unlikely that,
homicide,
highly
it
if counsel elected to
to the
itself did not relate
view
evidence,
impeachment
it as
use
this evi-
told the offi-
repeatedly
Horton
because
changed
dence would have
the outcome of
not want
to talk about the
cers he did
Horton’s trial.
It
disingen-
borders on the
Fanelly’s
nothing
There is
homicide.
uous for Horton to claim the benefits of
that is inconsistent with the
explanation
trial,
granted
motion
limine at
but
was
Report’s conclusion
Horton
Miller
it
appeal.
now seek
eschew on
then
brought
suspect,
as a homicide
but
(from
interview,
when Hor-
the start of
Moreover,
strong
there was
evidence
any-
ton refused to be interviewed about
confession,
against Horton other than his
thing
gun possession
other than the
inci-
including
testimony
girlfriend
of his
at
10, 2007), that
August
dent on
interview the time of the incident. The Government
investiga-
was not related to the homicide
also
into
spent
introduced
evidence the
tion.
casings
gun
shell
itself that were
from
ground
recovered
outside
Indeed,
Ms.
own motion in limine
Horton’s
Bryant’s
home,
home and from inside her
prevented
one factor that
was
least
respectively. Additionally, the officer who
explanation
a fuller
Fanelly
providing
initially reported to the scene testified that
jury.8
Fanеlly
not
to the
Because
was
he observed a bullet hole in
Bryant’s
Ms.
that Horton
permitted
being
to state
was
car,
Bryant
and that Ms.
appeared “a little
homicide,
investigated for a
he could not
(JA
upset”
shaken and
when he arrived.
explain
jury
before the
that the interview
402.) Thus,
credibility
of the officers
did not relate to a homicide because Hor-
confession,
as to Horton’s
while important
to discuss it and
ton refused
instead
him,
against
only
to the case
part
gun possession
talk
only
charge
about the
presented
short,
the case
jury.
to the
Fanelly
on
2007.
was able to
Brady
no
violation occurred and Horton is
fully
that fact
at the
explain
suppression
(when
not entitled to a new trial.
hearing
jury
present),
was not
gave
explanation
as full an
as he could
Challenges
III.
to the Sentence
trial,
jury
to the
at the second
without
violating
At
sentence,
Horton’s
limine motion.
appeals
also
his
chal-
Court,
argument
lenging
appeal
before this
Horton’s
appli-
district court’s
that,
counsel admitted
if the
Report
Miller
cation of the murder cross-reference. He
(three
had been available to trial counsel
he
separate
raises four
claims of error
impeachment purposes,
had used
of which relate to the application of the
cross-reference),
jury would have learned
Horton was a
but
of our
because
hold-
homicide,
suspect
ing,
evidence that Hоr-
we need
two.9
address
The first
possible
It is also
that it would have violated
Guidelines in this case and if the Guidelines
right against
Horton’s
self-incrimination un-
are so broad as to allow the use of an un-
*9
Arizona,
der Miranda v.
384 U.S.
86 S.Ct.
charged,
dramatically
unrelated murder to
in-
(1966)
Agent
which the
Background
A. Additional
misap-
that the district court
argument
his
Sentencing
as to
and
in conclud-
plied the
erred
Guidelines
(“PSR”)
presentence report
The
pre-
con-
the murder was “relevant
ing that
pared by
Office
the Probation
first dis-
of conviction. We
duct” to the offense
only
cussed
the facts
offense
challenges
these
in turn.
each of
address
charged in
indictment and the only
so,
are
of our
doing
In
mindful
offense which Horton was convicted—
role,
a sentence
“[w]e
which is
review
August
events at
Bryant’s
Ms.
reasonableness, applying an abuse of
Nonetheless,
home.
the bulk of the sen-
standard.” United States v.
discretion
tencing
proceeding was devoted
testimo-
(4th Cir.2012) (cit
278, 282
Susi
incident,
ny regarding a second
which the
States,
38, 49,
ing
v. United
U.S.
Gall
PSR determined —and the district court
(2007)).
586,
factors. resentencing, argu- we do not address these Because we conclude that do ments. the Guidelines application not allow the murder cross- *10 offense, and to that other if
subsequent line-ups resulting were unsuccessful the recovered. shotgun greater the was never offense level is than that deter- resulted, mined under 2K2.1. If death to the victims and some non- addition the apply analogous guide- most offense apartment complex, at the victim witnesses 2, A, 1, line from Part Chapter Subpart provided individuals state- several other resulting if the greater offense level is concerning authorities their ments than that determined above. Pursuant robbery/murder. Most knowledge 2Xl.l(a), the base offense level is persons who indicated of these were guideline determined from the for the alleged perpetrators heard the they had offense, any substantive plus adjust- it, or robbery discussing the heard second- guideline any ments from such in- comments made them. Some hand of tended offense conduct that can be es- Horton, implicated ei- of these statements certainty. tablished with reasonable robbery being ther as involved the or possessed a firearm in [Horton] connec- shooter, and others being the indicated robbery tion with the August present that he was not involved and responsible 2010. As Horton is for the perpetra- others as the instead identified shooting death which during occurred Ultimately, police investigation tors. the robbery, guideline for First De- identified Horton and into the incident ([USSG 2A1.1) § gree Murder ] has investigators four others whom the be- been used and calls for a base offense robbery.10 participants lieved were level of 43. foregoing, Based on the the PSR con- ¶ (JA 46.) cluded that sentencing, At the district court heard preponderance sup- evidence testimony police from two detectives who ports possessed a firearm [Horton] investigated had the home invasion and during robbery/home invasion on shooting concerning investigation their 17, 2007, August responsible and he is they various statements received. The for the murder of Charmeka Harris. As ultimately pre- concluded that such, he a firearm as a con- possessed ponderance of the supported evidence victed felon in connection with another finding that Horton possessed a firearm offense, Murder, felony First Degree during August robbery/home and a cross-reference to the substantive invasion. offense is warranted. ¶
(JA 5.) Accordingly, the PSR com- The district court further found the Au- puted explained gust Horton’s base offense 17 murder was relevant conduct to offense, level as follows: August 10 instant which led to significant increase in Horton’s base Sentencing The United States Commis- offense level based on the cross-referenc- sion Guideline for violation of 18 U.S.C. 2K2.1; however, ing provision. The district court thus 922(g) is found 2K2.1(c)(l) adopted the provides computation if PSR’s of Hor- the defen- level, ton’s offense possessed any dant used or firearm or base which used the (USSG Degree ammunition in connection com- Guideline First Murder with the 2A1.1) attempted mission or of an- instead of the commission lower offense level apply simple other offense ... 2X1.1 in for a respect felon-in-possession charge. grand jury County, charge against 10. A for Wake North Car- 2007. This state court murder against olina returned indictments shortly Horton was dismissed after his sen- individuals, charging them three other tencing in this case. the murder of Ms. Harris on *11 474 46.) ¶ conten
(Id. We first address Horton’s 947, in a base This resulted clearly the lower that the district court erred 43 instead of tion of offense level pre a 922(g)(1) finding, vio- as а factual matter and applicable level offense evidence, that Horton ponderance lations.11 17, 2007 August involved rob history points, criminal had 15 Horton responsible for the murder of bery and history category of establishing a criminal noted, Harris. As we review this Ms. criminal, career also an armed He was VI. error,” finding only factual for “clear which ground for independent an provides review, of very is a deferential standard of history category establishing a criminal only if are “left allowing us to reverse range, as de- advisory The Guidelines VI. that a a definite and firm conviction court, called for by the district termined has been committed.” F.C. Wheat mistake stat- applicable and the imprisonment, life States, 714, Corp. Mar. v. United F.3d 663 924(e)) (18 re- utory provision U.S.C. (4th Cir.2011). some While there was minimum of not less mandatory a quired conflicting point, evidence on the dis imposed court years. The district than 15 testimony from trict court heard extensive imprisonment. a of life sentence agents regarding investigation two into Finding Error B. Factual the murder of Ms. Harris and there was support finding, by a sufficient evidence assessing whether a district evidence, that Hor preponderance of properly court calculated Guidelines Thus, ton committed the murder. to the any including application its sen range, challenges extent that Horton the district enhancements, this “re tencing Court finding factual that he committed court’s legal conclu the district cоurt’s view[s] unsupported by reliable evi the murder as de novo and its findings factual for sions dence, error under the Layton, States v. he has not shown clear error.” United Cir.2009). (4th 330, applicable standard of review.12 F.3d dispute applicability would not have apparently some as to cross-reference’s 11. There is would have been what Horton’s level Court and other offense been reached. Both this had the cross-reference for murder not been routinely appellate affirm factual find- courts applied. decisions, Government contends ings sentencing relevant even total offense level would have been 34 remanding resentencing based on when for advisory range Horton's Guidelines See, e.g., United States v. Lla- other errors. imprisonment. have been 262 to 327 months’ mas, 381, (4th Cir.2010) F.3d 388-90 sentencing In his memorandum before the (reversing remanding where district court, however, argued applying court erred in a “vulnerable victim” level have his total offense should been adjustment adequate explanation, without an advisory range of 235 to with an Guidelines aggrava- affirming application of an but applied months. Because it the murder ting adjustment because it was not clear- role cross-reference, did not the district court Manatau, erroneous); United States v. ly dispute. Since we are need to resolve this (10th Cir.2011) (vacat- 1057 & n. remanding apply not to with instructions of in- sentence for new determination cross-reference, however, this is an murder loss, finding properly district court tended but for the district court to address in the issue separate the number applied enhancement for first instance. Flores, victims); United States v. 640 F.3d (5th Cir.2011) (remanding 644-45 respectfully disagree We with our col- resentencing leadership because role en- league's conclusion as to Section III-B. We facts, erroneous but hancement was based on logical arguments in their addressed Horton’s affirming justice enhance- obstruction If we had concluded that order. Newman, ment); United States clearly erred in its factual determina- Cir.2010) murder, (11th (reversing and regarding 1238-39 tion remanding resentencing complicated because district the more issue of the murder
475 however, alone, not estab- We now discuss the interrelation of these does That fact applying of the cross- propriety determining whether the dis- provisions lish noted, argues Horton also As reference. trict court erred in its determi- Guidelines that, assuming the district court’s even nation. mur- that he committed the finding
factual
for a violation of
offense level
18
application
proper,
der was
§ 922(g)(1),
U.S.C.
the offense of convic-
improper.
is nonetheless
cross-reference
here,
tion
is established under USSG
next.
turn to this contention
We
(c)
Guideline,
§ 2K2.1. Subsection
of this
Provision,
the Cross-Reference
states in
of the Cross-Reference
Application
C.
part:
relevant
above,
the PSR recom-
As noted
possessed any
If thе defendant used or
court conclud-
mended —and the district
firearm or ammunition in connection
robbery
2007
and
ed—that
attempted
with the commission or
com-
murder
relevant conduct for sentenc-
were
offense,
possessed
mission of another
or
In
ing purposes.
assessing
propriety
or transferred a firearm or ammunition
determination,
provisions
of that
three
knowledge
with
intent
would
pertinent:
are
Sentencing
Guidelines
possessed
be used or
...
(“the
in connection
(1)
2K2.1(e)(l)
§
Cross-Refer-
USSG
(B)
offense,
(“the
...
(2)
another
if
Provision”);
[and]
§
USSG 1B1.3
ence
(3)
resulted,
Guideline”);
death
court should apply]
[the
Relevant Conduct
(“the
Guideline”).
Grouping
analogous
§
the most
guideline
USSG 3D1.2
offense
factors.”) (citation omitted);
applying
court erred in
enhancement for "ex-
does serve those
offense,
Grubbs,
793, 799,
affirming
scope” of
but
dis-
United
tensive
States v.
585 F.3d
(4th
Booker,
Cir.2009) (after
application of an enhancement
trict court's
“[s]entenc-
interfering
jus-
with the administration of
for
long-
courts continue to
their
exercise
Williams,
tice);
evidence,
United States
standing authority to hear the
(11th Cir.2008) (remanding
any
sentencing
consider
at
evidence
that 'has
’ ”
sentencing adjustments
resentencing because
reliability[,]
including
sufficient indicia of
aggravated
and for abuse of trust
role
conduct).
course,
uncharged
evidence of
Of
unjustified,
affirming
were
but nonetheless
imposed
if the district court
an above-Guide-
finding
the defendant
the district court's
remand,
lines sentence on
it would be re-
justice).
obstructed
quired
provide
explanation
sufficient
for its
any "major” departure
chosen sentence and
Moreover,
we have concluded that
while
significant justifica-
require a "more
the murder of Ms. Harris is irrelevant
Gall,
than a minor” one.
U.S. at
tion
advisory
determining
appropriate
Guide-
specified);
text,
United States v.
As is obvious from its
Subsection
(4th Cir.2002),
(a)(1)
vacated in
F.3d
of the Relevant Conduct Guideline
part
reh’g,
non-relevant
on
335 requires a closer connection
between
(“Under
(4th Cir.2002)
curiam),
(per
acts and omissions committed and
of-
[USSG],
by
scheme created
whether
fense of conviction than does Subsection
(a)(2),
be
particular
ap-
encompasses
group
cross-reference should
which
a broader
Johnson,
on whether the conduct to
of acts. United States v.
plied depends
(7th Cir.2003) (“Subsection
cross-reference refers is ‘rele- F.3d
which the
”
(a)(2)
in the Relevant
allows a court to consider a broader
vant conduct’ as defined
Guideline).
range of
than
differently, only
trailing
Put
conduct
does the
Conduct
(a)(1).
1B1.3,
§
clause of
cmt.
USSG
back-
scope
conduct that also falls within the
of
ground.”).
aAs
counterbalance to this
can
the Relevant Conduct Guideline
be
(a)(2)
however,
scope,
broader
Subsection
subject of the
Provision.
Cross-Reference
applicabili-
has
threshold limitation on its
Accordingly,
the Relevant
we must review
i.e.,
ty,
applicable “solely
respect
is
Conduct Guideline to determine whether
to offenses of a character for which [the
scope.
the murder here falls within its
Grouping
require group-
would
Guideline]
The Relevant Conduct Guideline treats
ing
multiple
of
counts.”
USSG
conduct, including
as relevant
for cross-
lB1.3(a)(2).
§
referencing purposes,
following:
Notably, the Government does not con-
(a)(1)
all acts and
commit-
[
]
omissions
August
robbery
tend that the
ted, aided, abetted, counseled, command-
(a)(1)
murder
fall
within Subsection
ed, induced, procured, willfully
or
caused
of
the Relevant Conduct Guideline.13
by the defendant ...
dur-
occurred
Thus,
we look here
to whether the
ing the commission of the offense of
(a)(2)
murder
falls within Subsection
conviction,
preparation
for that of-
which,
terms,
by
express
its
requires ref-
fense, or in the course
attempting
of
Guideline,
Grouping
erence to the
USSG
responsibility
avoid detection or
for that
§ 3D1.2.
offense;
(a)(2)
solely with
respect
Commentary explains
[
]
offenses
Guidelinеs
3D1.2(d)
interplay
purpose
of a character for which
[the
the reference
“Grouping
require
to the
Grouping
Guideline”] would
Guideline
Subsection
(a)(2)
counts,
grouping multiple
all acts and
as follows:
tion,
Indeed,
it,
preparation
apparent
there is
from the
in the
no basis
for
course of
concluding
August
responsibility
attempting
record for
to avoid detection or
conviction,”
required
2007 offense was an act that occurred “dur-
for the offense of
(a)(1)
apply.
the commission of the offense of convic-
Subsection
(a)(2)
why
explanation as
for consider-
The Government’s
provides
Subsection
range of conduct with
apply
of a broader
should
ation
the murder cross-reference
offenses, primari-
class of
respect to one
(and
adopted
the rationale in the PSR
tax,
drug
fraud and
ly
property,
certain
court)
as follows.
can be stated
depend
guidelines
which the
offenses for
First,
possession
unlawful
defendant’s
than with re-
substantially
quantity,
during the
of a firearm on
assault,
offenses such as
to other
spect
murder,
groupable with the
robbery and
is
burglary. The distinction
robbery and
of conviction because both are fel-
offense
3D1.2(d),
made on
basis
Thus, according
on-in-possession offenses.
grouping together
provides
*14
Government,
procedural trigger
to the
count)
(ie.,
all
treating
single
as a
groupability, necessary
of
for Subsection
type
offenses of a
cov-
charging
counts
(a)(2)
of the Relevant Conduct Guideline
by this subsection....
ered
Second, the
apply, is satisfied.
substantive
(a)(1)
(a)(2) adopt
dif-
Subsections
(a)(2)
requirement
that the
Subsection
of the
rules because offenses
ferent
of
“part
two offenses be
of the same course
(a)(2)
subsection
character dealt
plan”
conduct or common scheme or
is also
(ie.,
offenses under
[groupable
Third,
satisfied.
the murder which oc-
Guideline])
Grouping
often involve
during
August
curred
2007 relevant
that cannot readi-
of misconduct
pattern
offense,
conduct
is likewise relevant con-
discrete,
identifiable
ly
broken into
be
(a)(3)
pursuant
duct
Subsection
purposes
for
meaningful
that are
units
Guideline,
Relevant Conduct
which in-
sentencing....
cludes “all harm that resulted from the
1B1.3,
background.
§
cmt.
USSG
(a)(2)
specified
acts ...
in [Subsection
].”
two as-
purposes
opinion,
For
of this
sig-
are
Grouping
Guideline
pects
surprisingly,
disagrees.
Not
Horton
He
(1)
felon-in-pos-
requires
nificant:
it
argues
pertinent
instead that the
offenses
(2)
grouped;
be
session offenses
determining
are
groupability
for
the of-
grouping
forbids the
of homi-
specifically
(the August
of conviction
fense
felon-in-
and other violent offenses.
cide offenses
charge)
possession
offense for
3D1.2(d)
§
See USSG
(grouping is re-
being applied,
which the cross-reference is
§by
offenses covered
2K2.1
quired for
this case is murder. Because
“all of-
grouping
and excluded from
are
specifically
subject
murder offense is
not
Two,
(except
Part A
Chapter
fenses
grouping,
Horton contends that
2A3.5),”
§
which includes the Guideline
procedural trigger
application
of Sub-
2A1.1).
murder,
parties
While
(a)(2)
section
of the Relevant Conduct
agree
principles,
on these two
clear from
ie.,
two of-
groupability
Guideline—
itself,
Grouping
the text of the
Guideline
Accordingly,
fenses—is not
satisfied.
apply
princi-
differ on how to
these
they
(a)(2)
Subsection
cannot be utilized to ren-
circuit
ples in this case. There is also a
der the
2007 incident relevant
split
properly apply
as to how to
And,
noted,
conduct.
the Government
determining
Grouping Guideline when
argue
not
that the murder is relevant
does
cross-references for murder or other vio-
(a)(1).14
conduct under Subsection
lent offenses.
der)
argues, alternatively,
relevant conduct because it does
that even if
is not
(a)(2)’s
satisfy
requirement
the Government is correct that the offenses
not
Subsection
grouped
separate
are the two
that must be
"part
that it be
of the same course of conduct
gun
possessing a
as a
instances of Horton
felon,
plan
as the offense of
or common scheme
(including
the second incident
the mur-
(a)(2) because,
split
a circuit
in the
although they
There is
threshold
Subsection
only
to whether
the offense of
issue as
part
were
same course of conduct as
groupable
need be a
offense or
conviction
сonviction, “they
the offense of
were not
whether both the offense of conviction and
offenses of
character for which [USSG
(the
the relevant conduct offense
cross-
3D1.2(d)
require grouping”).
]
offense)
groupable of-
referenced
must be
Kulick,
But see United States v.
(a)(2).
apply
fenses
order to
Subsection
(3d
Cir.2010) (conclud-
170-71 & n.
Notably, all but one of the circuits to have
the offense of conviction need
squarely
adopted
addressed the issue have
subject
be
grouping).
groupa-
Horton’s view that both must be
Jones,
the Seventh Circuit ad-
See,
Williams,
e.g.,
ble.
United States
rejected'
dressed —and
precise analy-
—the
(11th Cir.2005)
& n.
772-73
proposed by
sis
the Government here:
(concluding that where conviction was for a
additionally
It
argued
that consider-
§ 922(g),
violation of 18
U.S.C.
ation of the armed robbery/felony mur-
court erred in
an
utilizing
assault with a
der as relevant
conduct,
appropriate
conduct was
different firearm as relevant
be-
*15
guideline
lB1.3(a)(2),
§
cause assault
is
under
in-
being
excluded from
grouped, and thus “the definition of rele-
cludes within its definition of “relevant
lB1.3(a)(2)
§
vant conduct
found
is not
conduct” “all acts and
...
omissions
Government”);
available to the
United
part
were
of the same course of conduct
Settle,
(6th
v.
States
632 n. 2
or common
plan
scheme or
as the of-
Cir.2005) (attempted
grou-
murder is not
conviction,”
fense of
but
with re-
pable and thus could not be relevant con-
spect to offenses for which grouping un-
(a)(2)
duct under
Subsection
case where
3D1.2(d)
§
der
required.
would be
charge of conviction
felon-in-posses-
was
Grouping would not
required
be
in this
firearm);
Jones,
sion of a
United
States
fact, grouping
case-in
of the felon in
(7th Cir.2002)
313 F.3d
1023 & n. 3
possession count with the homicide
(although holding that
the Cross-Refer-
charge
specifically
is
excluded from the
§
ence Provision in 2K2.1
appropriate-
was
§
operation
3D1.2(d) rendering
—
ly applied
ato murder that was relevant
lB1.3(a)(2)’s
relevant-conduct defini-
(a)(1),
conduct under
observing
Subsection
tion inapplicable here.
the murder would not
relevant
be
conduct
noted,
The Government reasons, foregoing For the we conclude that it is not the assault that would ment applying the district court erred in grouped be but rather the firearm used murder cross-reference under Subsection This correct: the assault. is not (a)(2). We therefore vacate Horton’s sen- 2K2.1(e)(l) refers to another offense tence and for resentencing.18 remand Therefore, in which a firearm was used. IV. Conclusion it is the other offense must be subject regarding grouping to the rules above, For the reasons set forth guideline because it is the assault that is conviction, affirm Horton’s vacate his sen- used to calculate the offense level. tence, resentencing and remand for consis- Similarly, at 772 n. 9. here it is opinion. tent with this groupable the murder that must be PART, AFFIRMED IN IN VACATED (a)(2) apply Subsection “because it is the PART, AND REMANDED IN PART guideline that is used to calculate [murder] level,” DAVIS, clearly Judge,
the offense
and it
is not.
concurring
Circuit
id.; Settle,
See
Le-
2;
part
482 fendant to a new trial
II.
would violate the
Fifth
Jeopardy
Amendment’s Double
to reach out and
majority’s election
States,
1,
Burks v.
Clause.
United
437 U.S.
evidentiary sufficiency issue
address
11,
(1978).
2141,
98 S.Ct.
ty clarify panel to the law for this to have issue, no matter
attempted to duck And, unhesitating- I “complicated.”4
how adjustments. findings justify applica- regard court's do without to those factual not not, here, adjustments aggravated majority go role or for court did as the does tion of Therefore, way signal abuse of trust. we vacate out of its the district court that 3553(a) Williams’s sentence and remand resentenc- it could resort to 18 U.S.C. adjustments upward under without achieve the of incarceration same sentence 3Bl.l(c) (emphasis §§ legal and 3B1.3." imposed U.S.S.G. that had been result of added)). appellant's error in the calculation of Williams, Thus, appellate court’s as- sentencing range. Guidelines record, light sessment of the factual shows, standards, acting this case As the docket of controlling legal prompted the sponte barely three weeks before oral support nostra evidence to court find insufficient argument, supple- counsel to file adjustments sought by govern- ordered two of the guideline adjust- mental briefs on the cross-reference ment and to mandate that those two law; entirely keeping inapplicable action was ments were as a matter of issue. This issue, high importance appropriately with the the court instructed majority opinion. nicely impose upon resolved in the sentence remand