United States v. Rogers ( 2008 )


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  •                          NOT RECOMMENDED FOR PUBLICATION
    File Name: 08a0039n.06
    Filed: January 10, 2008
    No. 06-6260
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    )
    UNITED STATES OF AMERICA,            )
    )
    Plaintiff-Appellee,       )
    )            ON APPEAL FROM THE UNITED
    v.                                   )            STATES DISTRICT COURT FOR THE
    )            WESTERN DISTRICT OF TENNESSEE
    DEMARCUS ROGERS,                    )
    )
    Defendant-Appellant.           )            OPINION
    ____________________________________ )
    )
    Before: DAUGHTREY, GILMAN, and COOK, Circuit Judges.
    RONALD LEE GILMAN, Circuit Judge. Demarcus Rogers pled guilty to being a felon
    in possession of a firearm. He was charged with the offense after shooting Rico Coates four times
    during an argument between them. The district court enhanced Rogers’s U.S. Sentencing Guidelines
    range after finding by a preponderance of the evidence that (1) Rogers’s related conduct constituted
    an assault with intent to commit first-degree murder, (2) Coates sustained life-threatening bodily
    injuries, and (3) Rogers met the Guidelines’ definition of an Armed Career Criminal. Rogers was
    sentenced to 327 months of imprisonment.
    He argues on appeal that the district court violated his Sixth Amendment right to trial by jury
    when it found that his related conduct qualified as attempted first-degree murder. Rogers also
    argues that, based on this finding, the district court improperly calculated his Guidelines range and
    imposed an unreasonable sentence. For the reasons set forth below, we AFFIRM the judgment of
    the district court.
    I. BACKGROUND
    In June of 2004, Rico Coates went to the residence of Thomas Scott to talk to Scott and
    Rogers about some tire rims that had been stolen from Coates’s brother. The discussion escalated
    into an argument. Rogers then pulled out a semi-automatic handgun and another pistol and shot
    Coates multiple times. Coates was unarmed. After the first shot, Coates staggered to the front door
    and fell to the ground outside. Scott attempted to intervene and stop Rogers, but Rogers shot Scott
    in the hand. Rogers then exited the home, stood over Coates, and continued to shoot at him. Coates
    was shot a total of four times—in the side, stomach, and twice in the thigh. When bystanders
    rescued Coates by pulling him into a nearby car, Rogers continued to fire shots in the direction of
    Coates until the car was out of range.
    Coates underwent two surgeries and had to remain in the hospital for nearly a month. When
    Rogers was arrested, he had in his possession the semi-automatic weapon that he had used to shoot
    Coates. Although Rogers admitted to shooting Coates, he claimed that he had acted in self-defense.
    Rogers eventually told the police where they could find the second weapon used in the shooting.
    In May of 2006, Rogers pled guilty to being a felon in possession of a firearm, in violation of 18
    U.S.C. § 922(g).
    The Presentence Report (PSR) calculated Rogers’s base offense level under the Sentencing
    Guidelines at 24 because the offense at issue was committed after he had amassed at least two felony
    convictions for crimes of violence. Rogers’s offense level was then raised to 33 because the PSR
    recommenced that the cross-reference for attempted murder be applied pursuant to Guidelines
    § 2A2.1. The PSR noted that § 2A2.1(a) was applicable because “the object of the offense
    committed by [Rogers] on June 29, 2004, would have constituted first degree murder.” It further
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    recommended an additional increase of four levels due to the “life-threatening” nature of Coates’s
    injuries under Guidelines § 2A2.1(b). As a result, the PSR recommended that Rogers’s maximum
    offense level be raised to 37, with a downward adjustment of 3 points for acceptance of
    responsibility, bringing his final offense level to 34. The PSR also determined that Rogers qualified
    as an Armed Career Criminal under Guidelines § 4B1.4.
    At Rogers’s sentencing hearing, the district court applied the “Cross-Reference” provision
    of Guidelines § 2K2.1 to determine the offense level for Rogers’s 18 U.S.C. § 922(g) violation.
    Section 2K2.1(c)(1) states that “[i]f the defendant used or possessed any firearm or ammunition in
    connection with the commission or attempted commission of another offense . . . , apply § 2X1.1
    (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level
    is greater than that determined [under 2k2.1].” Section 2X1.1(c)(1) in turn provides that “[w]hen
    an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section,
    apply that guideline section.”
    Based on the evidence before it, the district court found that Rogers’s firearms offense was
    part of a course of conduct that culminated in the willful, intentional, and premeditated attempted
    murder of Coates, and that a cross-reference to attempted murder as provided in Guidelines § 2A2.1
    was therefore appropriate. Guidelines § 2A2.1(a) sets forth a base offense level of 33 “if the object
    of the offense would have constituted first degree murder,” and a base offense level of 27
    “otherwise.” In accordance with the finding that Rogers’s actions constituted attempted first-degree
    murder, the court adjusted Rogers’s offense level to 33 and then adopted the PSR’s
    recommendations for both a four-level enhancement due to the “life-threatening” nature of Coates’s
    injuries and a three-level reduction for acceptance of responsibility.
    After determining that Rogers had a final offense level of 34 and a criminal history category
    of VI, the district court calculated Rogers’s Guidelines sentencing range at 262-327 months of
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    imprisonment. The court then sentenced Rogers to 327 months in prison and three years of
    supervised release. This timely appeal followed.
    II. ANALYSIS
    A.     Rogers’s Sixth Amendment claim
    We review constitutional challenges to a defendant’s sentence de novo. United States v.
    Copeland, 
    321 F.3d 582
    , 601 (6th Cir. 2003). A defendant’s Sixth Amendment right to have a jury
    determine the facts beyond a reasonable doubt, however, is limited to facts that increase a sentence
    beyond the statutory maximum for the offense charged. Apprendi v. New Jersey, 
    530 U.S. 466
    , 490
    (2000); United States v. Crowell, 
    493 F.3d 744
    , 749 (6th Cir. 2007). In the present case, Rogers
    does not argue that the district court increased his sentence beyond the statutory maximum for being
    a felon in possession of a firearm. He instead argues that the court violated his Sixth Amendment
    right to a trial by jury when it found facts by a preponderance of the evidence that increased his
    sentence beyond the conduct to which he admitted. Although Rogers acknowledges that Sixth
    Circuit caselaw allows the court to make such factual findings, he asks us to reconsider that position.
    This panel clearly has no authority to do so. See Salmi v. Sec’y of Health & Human Serv., 
    774 F.2d 685
    , 689 (6th Cir. 1985) (holding that a later Sixth Circuit panel may not overrule the decision of
    a prior panel unless a subsequent decision of the Supreme Court requires modification of the earlier
    decision or this court decides the new case en banc).
    Although the Supreme Court has yet to weigh in on the constitutionality of the
    preponderance-of-the-evidence standard for factfinding regarding sentencing enhancements, the
    caselaw in this circuit is unambiguous. In United States v. Gates, 
    461 F.3d 703
    , 708 (6th Cir. 2006),
    for example, this court made clear that “using a preponderance of the evidence standard post-Booker
    does not violate . . . the Sixth Amendment right to trial by jury.” See also United States v. Booker,
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    543 U.S. 220
    , 232-33 (2005) (holding that a sentencing court is authorized to make factual findings
    by a preponderance of the evidence in order to appropriately determine the advisory sentencing
    range under the Guidelines).
    Moreover, this circuit recently held that there is no Sixth Amendment violation where a
    district court applies a cross-reference to a crime not charged in the indictment based upon the
    preponderance-of-the-evidence standard. United States v. Birka, 
    487 F.3d 450
    , 454-57, 459 (6th Cir.
    2007) (applying a cross-reference for kidnaping to a charge of using a telephone to extort money
    in exchange for the release of a kidnaped person). Because Sixth Circuit authority is contrary to
    Rogers’s assertion that judicial factfinding at sentencing by a preponderance of the evidence is
    unconstitutional, we reject his argument.
    B.     The district court’s calculation of Rogers’s sentence
    Rogers asserts in the alternative that even if the preponderance-of-the-evidence standard is
    constitutional, there was inadequate evidence to support the district court’s finding that he had the
    intent required for first-degree murder under the United States Code. He argues that in light of this
    error, his sentence is unreasonable because the district court miscalculated his Guidelines range.
    1.      Standard of review
    A determination of criminal responsibility is a mixed question of law and fact that we review
    de novo. United States v. Whited, 
    473 F.3d 296
    , 297 (6th Cir. 2006). Facts employed by the district
    court to find criminal responsibility, however, will not be set aside unless clearly erroneous. United
    States v. Katzopoulos, 
    437 F.3d 569
    , 574 (6th Cir. 2006). Although we review the district court’s
    application of the Guidelines de novo, United States v. Hicks, 
    4 F.3d 1358
    , 1361 (6th Cir. 1993), the
    ultimate sentence is reviewed for reasonableness, which has both a procedural and a substantive
    component. Gall v. United States, 
    128 S. Ct. 586
    , 596 (2007); United States v. Thomas, 
    498 F.3d 336
    , 339 (6th Cir. 2007).
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    The government argues that, because Rogers’s attorney failed to object to the district court’s
    factual finding that Rogers’s actions constituted attempted first-degree murder, this court should
    apply the plain-error standard rather than the de novo standard of review. See United States v.
    McCreary-Reed, 
    475 F.3d 718
    , 721 (6th Cir. 2007) (holding that when a defendant fails to object
    to an error of the court, this court reviews the issue under the plain-error standard). When
    questioned about the nature of her objections, however, Rogers’s attorney made clear that she was
    “alleging to the court that [the facts related to the attempted murder were] irrelevant to this
    sentencing proceeding” under the Sixth Amendment and that such conduct should not be used to
    increase Rogers’s sentence. As such, Rogers’s attorney effectively objected to the district court’s
    use of the cross-reference provision of the Guidelines, and we will review that aspect of the district
    court’s decision de novo. See Hicks, 4.F.3d at 1361.
    2.      Sufficiency of the evidence for the district court’s finding of
    attempted murder
    Application Note 1 to Guideline § 2A2.1 defines first-degree murder as “conduct that, if
    committed within the special maritime and territorial jurisdiction of the United States, would
    constitute first degree murder under 18 U.S.C. § 1111.” Pursuant to § 1111(a), “[e]very murder
    perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and
    premeditated killing . . . is murder in the first degree.” The question before us then, is whether the
    district court clearly erred in finding by a preponderance of the evidence that Rogers attempted to
    murder Coates with premeditation.
    As discussed above, the government’s proof supporting a greater Guidelines range need be
    shown only by a preponderance of the evidence. United States v. Watts, 
    519 U.S. 148
    , 156 (1997);
    United States v. Gates, 
    461 F.3d 703
    , 708 (6th Cir. 2006). Even if the district court does not make
    detailed findings as to supporting facts, we may look to the record to determine whether the decision
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    was clearly erroneous. United States v. Miller, 
    161 F.3d 977
    , 984 (6th Cir. 1998) (holding that an
    appellate court “may review the record before [it] to determine whether or not clear error exists”);
    see also United States v. Washington, 
    127 F.3d 510
    , 515 (6th Cir. 1997) (reviewing the trial
    transcript to determine the defendant’s role in commission of the offense).
    A review of the record in the present case demonstrates that the district court did not clearly
    err in finding that Rogers’s actions constituted a willful and premeditated attempt to murder Coates
    without justification. Rogers used two firearms to shoot Coates multiple times at close range. After
    he shot Coates the first time, Rogers walked out of the apartment, stood over Coates, and fired three
    more shots into his body. When Scott attempted to intervene, Rogers shot Scott in the hand and then
    returned to targeting Coates. And when bystanders dragged Coates to a car to take him to the
    hospital, Rogers continued his violent assault by shooting at Coates, the bystanders, and the car even
    as it drove away. This course of conduct more than supports the finding that Rogers’s actions
    constituted attempted first-degree murder.
    Moreover, caselaw in this circuit and others demonstrates that courts have applied the cross-
    reference for assault with intent to commit first-degree murder under Guidelines § 2A2.1(a) to
    similar, and in some instances less egregious, conduct. See United States v. McDaniel, 
    165 F.3d 29
    ,
    
    1998 WL 661106
    , *2, 5 (6th Cir. 1998) (cross-referencing to § 2A2.1(a) after finding that a
    defendant who fired six shots at an officer’s leg within 10 seconds was attempting to commit first-
    degree murder); United States v. Vaught, 133 F. App’x 229, 233-34, 
    2005 WL 128564
    4,*3-4 (6th
    Cir. 2005) (affirming a district court’s application of § 2A2.1(a) where the a defendant was carrying
    a gun near his sister’s apartment after making a threat to kill her, even though the defendant never
    fired the weapon); United States v. Drew, 
    200 F.3d 871
    , 879 (D.C. Cir. 2000) (applying § 2A2.1(a)
    where the defendant pointed a gun at the victim’s head but did not fire); United States v. Wilson, 
    992 F.2d 156
    , 158 (8th Cir. 1993) (affirming a cross-reference pursuant to § 2A2.1(a)(1) where the
    7
    defendant fired a shotgun out of a vehicle toward a group of people and hit a bystander). The district
    court here did not clearly err when it found by a preponderance of the evidence that Rogers took
    sufficiently premeditated actions to constitute attempted first-degree murder under 18 U.S.C. § 1111.
    C.     The district court’s application of the Guidelines
    In light of the district court’s findings, it did not err in following Guidelines § 2A2, which
    led the court to adjust Rogers’s base offense level to 33. Rogers raises no other challenges to his
    sentence. We therefore conclude that his sentence is a reasonable one.
    III. CONCLUSION
    For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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