Lead Opinion
OPINION
Jeremy Wright sprayed twenty-two rounds from an AK-47 assault rifle into a crowded night club parking lot, killing a man sleeping in a car with a single bullet to the head. Wright fired his rifle until he ran out of ammunition even though there were some two or three hundred people at the club, many of whom were pouring outdoors as the result of a fight that Wright had just instigated with rival gang members. In addition to the man he killed, Wright also wounded a club patron in the course of his rampage.
A jury convicted Wright of being a felon in possession of a firearm under 18 U.S.C. § 922(g). In light of his prior offenses, the district court sentenced Wright to life imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). We affirm.
I.
On the night of June 17, 2007, appellant Jeremy Wright, his brother, Brandon Wright, Atari Hayes and Geno (last name unknown) were at the Grand Prix Night Club in Dillon County, South Carolina. Wright was a member of the Crips street gang, and his friends also were affiliated with the organization. After some time at the Grand Prix, the men decided to go to the Blue Moon Night Club and set off in a convoy of three cars with other associates.
When they arrived in thе parking lot outside the Blue Moon, the owner of the club, Randy McCullum, informed Wright that he and his Mends were not welcome because some of them had caused problems at the club a week earlier. Wright demanded entry. During the ensuing altercation, Wright told McCullum, “If we can’t go in and par[ty], nobody can par[ty].” According to one bystander, Wright said that “if he can’t come in the club, he didn’t want nobody in the club, he would turn it out. He didn’t want nobody going in the club.” The argument grew heated. One witness said that Wright three times ordered the driver of the car in which he arrived to pop the trunk, which later events showed to contain a firearm. The driver refused. One of the night club workers testified that Wright told McCullum, “Your nephew killed our home boy; we owe you all a body.”
After issuing these threats, Wright, Hayes, and Geno pushed past McCullum and entered the night club, with Wright refusing to be searched by the bouncer at the door. Almost immediately, Wright became involved in a fight with an individual whose red bandana and red hat marked him as a member of the rival Bloods gang. While the club’s bouncer was attempting to end this brawl, two more fights broke out, one of which involved Geno on one side and a Bloods member on the othеr. Hayes managed to leave the building and told Brandon Wright that his brother was fighting inside.
Brandon Wright went to the back of the car the men drove to the night club and removed an AK-47 assault rifle from the trunk. The gun itself was never recovered, but several witnesses at trial identified pictures of the type of gun and noted that it had a banana clip. While Brandon Wright was getting the gun, Jeremy Wright and the patrons of the club were spilling out the front door, and the club employees were trying to end the fighting. A man yelled at Brandon to put the gun away. Brandon began to obey, but Jere
Wright fired repeatedly, continuing to shoot until he expended all his ammunition and the gun clicked on an empty chamber. One of his victims, Jameka Manning, testified that she heard “real, real loud gun noises. And I could hear the bullets flying by my face and could feel, like, the wind pass by my face.” After being narrowly missed by several rounds, she was struck in the back by a bullet. Investigators later recovered twenty-two 7.62 x 39 mm shell casings, the same caliber ammunition fired by the AK-47.
After firing all his ammunition, Wright ran bаck to the car, and he and his friends left. As they were leaving, Hayes heard a girl screaming, “He’s shot, he’s shot, he’s dead.” Wright told his friends not to “snitch” because he would get back at them. The men went back to the Grand Prix Night Club. Several minutes after Wright left, witnesses reported that other individuals began firing guns. However, all agreed that the AK-47 had a distinctive sound and that the later shots were from different types of weapons.
Police responding to a 911 call from the Blue Moon found Kelvin Small dead in the back seat of his car with a gunshot wound to the back of his head. Small had been sleeping in his car when he was killed. Bullet fragments recovered from Small’s body were examined by a forensic scientist and deter mined to be most consistent with a 7.62 x 39 mm bullet.
A jury found Jeremy Wright guilty of possessing a firearm after being previously convicted of a felony. 18 U.S.C. § 922(g)(i). After the jury was excused but while the trial judge remained on the bench, Wright jumped from his chair and headed for the prosecutor’s table with clenched fists. He was subdued by U.S. Marshals before any injury occurred.
Wright’s presentence report listed numerous prior incidents, including an aggravated assault and battery conviction arising from a gang fight bеtween Crips and Bloods. In addition to that conviction and other criminal acts not relevant here, Wright had three juvenile adjudications stemming from three separate burglaries in the year 2000, in which Wright stole a 9mm handgun, an FKS rifle, and a .32 New England Firearms Model R73 Revolver. Based on these prior offenses, the district court sentenced Wright under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), to life imprisonment.
On appeal, Wright raises three challenges to his sentence. He first argues that the use of his juvenile adjudications as predicate crimes under the ACCA violates the Supreme Court’s decision in Apprendi v. New Jersey,
II.
A.
We review de novo Wright’s claim that the Armed Career Criminal Act (ACCA)
Wright’s adult conviction for aggravated assault and battery plainly counts as one of the required three predicate violent felony convictions. See 18 U.S.C. § 924(e)(2)(B)(i) (“violent felony” includes any adult conviction punishable by more than one year that “has as an element the use, attempted use, or threatened use of physical force against the person of another”). Similarly, the three burglaries for which Wright was adjudged delinquent as a juvenile fall within § 924(е)’s violent felony definition. The relevant statutory provisions state that any burglary that is an “act of juvenile delinquency involving the use or carrying of a firearm ... that would be punishable by imprisonment for [a term exceeding one year] if committed by an adult” constitutes a violent felony. 18 U.S.C. § 924(e)(2)(B).
Wright argues that, notwithstanding this language, his juvenile adjudications cannot be counted under the ACCA because South Carolina family courts do not employ juries. He asserts that these adjudications are infirm on their face. He further argues that the district court violated the Supreme Court’s statemеnt in Apprendi v. New Jersey that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
B.
The Supreme Court’s decision in McKeiver v. Pennsylvania,
This is not to say that a juvenile is without protection. Rather, juveniles are accorded many other procedural safeguards, for instance “the rights to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-incrimination [in addition to] proof beyond a reasonable doubt.” Id. at 533,
In light of this guidance, it is not surprising that the clear majority of circuits to consider this issue agree that juvenile offenses may be considered by the court as predicate convictions at ACCA sentencings. Four circuits have held that juvenile convictions fall within Apprendi’s exemption for prior convictions and need not be submitted to a jury. See U.S. v. Smalley,
These courts have recognized that the issue of whether juvenile adjudications can be used to enhance sentences under Apprendi’s exception for prior convictions hinges in part оn whether non-jury adjudications “are so reliable that due process of law is not offended by such an exemption.” Smalley,
As the ACCA expressly provides for qualifying juvenile adjudications to be used as predicate offenses and the Constitution in no way forbids it, the district court was correct not to discount the fact that Wright burgled firearms on three separate occasions during his delinquent youth. The fact that juries are not constitutionally required in juvenile adjudications does nothing to impeach this fact. As a result, we agree with the Sixth Circuit that the “defendant received all process that was due when convicted — for adults that includes the right to a jury trial; for juveniles, it does not.” Crowell,
III.
We next move to Wright’s contention that his juvenile burglaries do not constitute prior offenses under the ACCA because he did not “carry” a firearm while committing a crime of violence. This claim is also a legal one and thus is reviewed de novo. U.S. v. Williams,
Wright argues that the act of burglary is complete at the moment a dwelling is entered without consent. He thus claims that his burglaries did not involve carrying firearms because it is possible to commit burglary simply by entering a dwelling with the requisite intent to commit a crime, regardless of whether anything is actually stolen. See S.C.Code § 16-11-312(A). Additionally, hе points out that with each of his three burglary convictions he was also convicted of a corresponding count of larceny under South Carolina Code § 16-13-30. Because Wright contends that these convictions punish the actual carrying of the firearms he stole, he argues that the burglary convictions do not meet the ACCA’s requirement that a firearm be carried in the commission of a burglary.
We cannot accept this argument. To begin, we note that Wright does not dispute that he committed three burglaries as a juvenile and that in each instance he stole a fireаrm. He does not raise any argument that the convictions were somehow unreliable under Shepard v. United States,
the Supreme Court has construed ‘burglary’ in the statute to include ‘any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to cоmmit a crime.’
In this case, the law Wright violated as a juvenile states that “[a] person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling.” S.C.Code § 16-11-312(A).
Wright’s further arguments serve only to confirm our view. His claim that he did not “carry” firearms falls short. Section 924(e) merely requires that a prior offense be one “involving the use or carrying of a firearm.” 18 U.S.C. § 924(е)(2)(B) (emphasis added). The language “involving the use or carrying of a firearm” is broader than language such as breaking and/or entering with firearms — -a formulation Congress could have used but did not. The statute does not define “involving,” but that term in no way narrows its “use or carrying” language. Indeed, in defining the same word in another prong of § 924(e), we have already acknowledged that “involving” means “[t]o have as a necessary feature or consequence” and that “the word ‘involving’ itself suggests that the subsection should be read expansively.” U.S. v. Brandon,
This notion is consistent with our interpretation of other sections of 18 U.S.C. § 924 as well. For instance, in United States v. Mitchell, we noted that the “plain meaning of the term ‘carry’ as used in § 924(c)(1) requires knowing possession and bearing, movement, conveyance, or transportation of the firearm in some manner.”
Indeed, South Carolina courts have taken a similar view in interpreting an ele
IV.
Wright’s final claim on appeal is that the district court erroneously cross-referenced the sentencing guideline for first degree murder instead of the second degree guideline. Following the Supreme Court’s decision in Gall v. United States, we must “ensure that the district court committed no significant procedural error,” when it calculated the guidelines range.
As Wright’s counsel acknowledged at argument, our resolution of Wright’s ACCA claims undermines his objection to the district court’s advisory guidelines calculation. Even the second degree murder range Wright claims should have been used would have dictated a range of 360 months to life. Br. of Appellees 21 n. 3.
However, the district court did not err by referring to the first degree murder guideline. It began by applying U.S.S.G. § 2K2.1, which deals with sentencing for unlawful possession of firearms. However, § 2K2.1(c)(l) instructs a court to aрply a cross reference if a defendant who unlawfully possessed firearms used them to commit any other crimes. The district court thus applied the sentencing guideline for first degree murder, U.S.S.G. § 2A1.1, which gives a base offense level of 43 and a recommended life sentence.
The district court did not err in its determination that first degree murder was the appropriate cross reference for Wright’s firearm violation. Indeed, the court’s decision is consistent with the substantive definition of first degree murder:
Murder is the unlawful killing of a human being with malice aforethought. Every murder perpеtrated by ... any ... kind of willful, deliberate, malicious, and premeditated killing ..., is murder in the first degree. Any other murder is murder in the second degree.
18 U.S.C. § 1111(a). It is not necessary that the defendant intend to kill the specific individual who dies. Any killing which was “perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed” is covered by the statute. Id. Similarly, it is well settled that “[sentencing judges may find facts relevant to determining a Guidelines range by
Wright and two friends then pushed into the bar, where Wright immediately put his threats into action, picking a fight with a rival Bloods member. Other fights broke out, and the patrons of the club streamed out into the parking lot. Wright’s brother, hearing Wright was in a fight, pulled the AK-47 from the car trunk but then began to put it back when a bystander yelled at him. Before he could do so, Wright, fresh from his fight with a rival street gang member, snatched the AK-47 and opened up on the chaotic scene. The district court recognized at sentencing that “Mr. Wright had been in some kind of confrontation, he had a motive to fire the gun, and fired it, and if someone was killed, so be it.” Indeed, Wright stopped firing only after he emptied his magazine, gunning down an innocent man in the process.
It was perfectly foreseeable that someone would be killed when Wright sprayed the parking lot with gunfire. Cars do not drive themselves. People ride in them, wait in them, and cross parking lots to get to them. It was thus not at all unusual that Kelvin Smalls was in a car that Wright fired into, nor, unfortunately, was it surprising that Wright’s shot resulted in Small’s killing. As the trial court found, Wright engaged in “a reckless firing of the firearm, a random firing with the intent to hurt someone.” (emphasis added).
In addition, Jameka Manning’s testimony cеrtainly does nothing to dispel the district court’s determination. Manning was shot in the back by Wright, and before being hit, she heard several other bullets fly close by her body, so close that she could feel the wind from their passing. Whether her shooting was intentional or random is hardly the point, for the district court’s determination did not depend on whether Wright’s marksmanship wholly matched his malice. The district court properly applied the first degree murder cross reference.
Because we find the district court calculated the guideline correctly, we next exercise our discretion under Gall to “apply a presumption of reasonableness” to the within-guidelines sentence imposed here.
In the final analysis, Wright made at least twenty-two deliberate choices the evening he ended Kelvin Small’s life. He decided to empty twenty-two 7.62 x 39 mm rifle rounds from his AK-47 into a crowded parking lot. Tragically, one of Wright’s decisions ended with a bullet embedded in Small’s skull. The district court did not err in sentencing Wright to life in prison. The sеntence was reasonable in light of Wright’s instant offense, his adult conviction for aggravated assault and bat
AFFIRMED
Notes
. South Carolina does not have separate juvenile courts but instead gives its family courts exclusive jurisdiction to adjudicate most juvenile offenses. See S.C.Code § 63-3-510.
. Only two days before oral arguments in this case, Wright's counsel filed a supplemental brief addressing our decision in United States v. Walters,
. It appears that Wright was initially charged with two counts of first degree burglary, S.C.Code § 16-11-311, and one cоunt of second degree burglary, S.C.Code § 16-11-312, but that he was allowed to plead guilty to three counts of second degree burglary. See J.A. 189, 211-18. See also Br. of Appellant 11 n. 1.
Concurrence Opinion
concurring in part and dissenting in part:
While I concur with the majority’s opinion finding that Wright was appropriately categorized as an armed career offender under the Armed Career Criminal Act, I respectfully dissent from Part IV, which denies Wright’s claim that the district court erred when it applied the sentencing guideline for first degree murder. Under Gall v. United States, 552 U.S. 38, 51,
While reckless behavior, as cited by the district court and the majority, may be sufficient to show malice aforethought, there must be evidence that the killing was “willful, deliberate, ... and premeditated” for murder to rise to the level of first degree. See 18 U.S.C. § 1111(a). In this case, no evidence, and certainly not a preponderance of the evidence, demonstrates that Wright held a premeditated design to effect the death of any person. There is no evidence that Wright knew that the cars he was firing toward were occupied or that Wright consciously intended to bring about the death of any person at the scene, thus causing Smalls’ death. Instead, as the district court recognized, Smalls “happened ... to be in the vicinity” when Wright engaged in a “reckless” and “random firing.” J.A. 163-64. No one testified that Wright was shooting at any individual. To the contrary, the evidence shows that Wright “didn’t open fire in the club” and was shooting “towards the cars” parked in the lot. J.A. 56, 106-07. One witness specifically stated that Wright was aiming at a green car to shoot it up and agreed that Wright was not shooting at persons. J.A. 75, 83. Another witness testified that Wright was shooting direсtly in front of a green truck, belonging to the club owner McCullum. J.A. 58. McCullum was the individual who told Wright he could not enter the club.
While the facts of this case are tragic and Wright’s conduct was certainly reckless, whether the conduct constituted first degree murder depends on whether Wright acted purposefully and not simply whether Smalls’ death was foreseeable. Foreseeability, as cited by the majority, is relevant to second degree murder, but it is not a component of first degree murder, which requires a specific, subjective state of mind. First degree murder requires that Wright had the purрoseful intent to bring about a death. So while it may have been reasonable for Wright to realize that people might be in the parking lot that night, this alone is not evidence that Wright committed a “willful, deliberate, ... and premeditated” killing. If the evidence had shown that Wright was shooting at anyone with the intent to kill, including the injured bystander, Jameka Manning, I would agree with the majority’s analysis. Such evidence, however, does not exist on this record.
Therefore, the district court’s finding in favor of its cross reference of first degree murder is not supported by a preponderance оf the evidence and is clearly erroneous. The resulting error was not harmless because the cross reference to first degree murder, “absent any downward adjustments or departures, require[d] the district court to impose a life sentence.” United States v. Crump,