United States v. Shawn Rockwell ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30070
Plaintiff-Appellee, D.C. No.
3:20-cr-00097-SLG-MMS-1
v.
SHAWN LOUIS ROCKWELL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, Chief District Judge, Presiding
Submitted August 17, 2023**
Anchorage, Alaska
Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.
Defendant Shawn Rockwell appeals the sentence imposed following his
guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). We have jurisdiction under 28 U.S.C. § 1291. “We
review de novo the district court’s interpretation of the sentencing guidelines,” and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
“[w]e review for clear error the factual findings underlying the sentencing
decision.” United States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001) (citations
omitted). We affirm.
Rockwell argues the district court erred in applying the cross-reference in
U.S.S.G. § 2K2.1(c)(1) to the aggravated assault guideline because the government
failed to prove by clear and convincing evidence that he was involved in a shooting
in which he intended to cause bodily injury.
Section 2K2.1 is the sentencing guideline for felon in possession of a
firearm. The cross-reference in § 2K2.1(c)(1) provides that if a defendant “used or
possessed any firearm . . . cited in the offense of conviction in connection with the
commission . . . of another offense,” then the court must apply § 2X1.1 with
respect to that other offense, “if the resulting offense level is greater than that
determined” under § 2K2.1. U.S.S.G. § 2K2.1(c)(1)(A). Section 2X1.1 directs the
court to apply “[t]he base offense level from the guideline for the substantive
offense, plus any adjustments from such guideline.” U.S.S.G. § 2X1.1.
Section § 2A2.2 is the sentencing guideline for aggravated assault. This
guideline applies if a person committed a felonious assault involving “a dangerous
weapon with intent to cause bodily injury.” U.S.S.G. § 2A2.2, cmt. n.1. Here, it is
undisputed that the district court’s application of § 2A2.2 would have “an
extremely disproportionate effect on [Rockwell’s] sentence relative to the offense
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of conviction.” Jordan, 256 F.3d at 926. Thus, for the district court to apply the
cross-reference in § 2K2.1(c)(1) and sentence Rockwell under § 2A2.2, the
government was required to establish by clear and convincing evidence that
Rockwell committed aggravated assault. See id.
There was clear and convincing evidence to support the district court’s
application of the aggravated assault guideline.1 At sentencing, the government
presented evidence that Rockwell used a .40 caliber handgun to shoot into the door
of a trailer home in Anchorage on February 1, 2018. FBI agent Rodney Russell
testified that the handgun used in the shooting was traced to Samantha McIntosh,
who was Rockwell’s ex-girlfriend. McIntosh told police that Rockwell provided
her with money to purchase the gun on the day of the shooting and that she gave
Rockwell the gun after she bought it. She also told police that Rockwell instructed
her the day after the shooting to report the gun and her vehicle stolen. Officers
also recovered security videos of the shooting, which were played at the hearing.
Agent Russell testified that McIntosh positively identified Rockwell as the shooter
1
A recent Ninth Circuit opinion expressed doubt about whether we should require
sentencing factors to be proven by clear and convincing evidence, noting that our
Circuit “stands alone” in maintaining this rule after the Supreme Court’s decision
in United States v. Booker, 543 U.S. 220 (2005). United States v. Lucas, 70 F.4th
1218, 1221 (9th Cir. 2023). In any event, adopting a preponderance of the
evidence standard would not change the outcome here. Because we conclude that
there was clear and convincing evidence, we would necessarily conclude that the
lower standard had been met.
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in the video footage based on his clothing and the shape of his nose.
Rockwell raises two challenges to the evidence presented, but neither are
availing. First, he claims that he could not be conclusively identified from the
videos because the shooter wore a partial mask. But Rockwell’s clothing and other
physical attributes were sufficiently visible in the videos for McIntosh to recognize
him. The record also contains other evidence strongly suggesting that Rockwell
possessed the handgun on the day of the shooting.
Second, Rockwell argues there was insufficient evidence he intended to
cause bodily injury because the shooter in the video fired only at the door’s lock.
The government presented evidence, however, that the shooter knew the trailer was
occupied when he shot into the door; in the videos, a woman can be heard yelling
from inside the trailer just before the shooting. Evidence that Rockwell shot
multiple times into the door of a home that he knew was occupied was sufficient to
support a finding that he intended to cause that person bodily injury.
The court also did not procedurally err in applying § 2A2.2. See United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Rockwell’s offense
level under § 2A2.2, after accounting for relevant enhancements and reductions,
was 18. This offense level was greater than Rockwell’s calculated offense level
under § 2K2.1, which was 15. The court therefore appropriately sentenced
Rockwell to 60 months imprisonment according to the guidelines for § 2A2.2. See
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U.S.S.G. § 2K2.1(c)(1).
AFFIRMED.
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