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Tenth Circuit Announces District Court Erred in Applying Attempted Murder Cross-Reference Under U.S.S.G. § 2A2.1 Based on Malice Aforethought, Without Finding Intent to Kill

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit held that the U.S. District Court for the Western District of Oklahoma erred in applying United States Sentencing Guideline (“U.S.S.G.”) § 2A2.1(a)(2) without a specific finding of an intent to kill.

A jury convicted Jimmy Lee Brooks of being a felon in possession of ammunition and witness tampering. The possession of ammunition offense came as a result of Brooks firing a handgun several times at a car in which his girlfriend [“S.J.”] was riding. One bullet entered through the license plate and struck S.J. in the buttocks.

The presentence report (“PSR”) applied a cross-reference to § 2A2.1(a)(2) for attempted second-degree murder. Brooks objected on the ground that the “evidence was insufficient to prove he harbored an intent to kill.” The Government countered, arguing that second-degree murder is a general, not specific, intent crime that requires “only malice aforethought” and “can be satisfied by the intent to kill without premeditation, intent to do serious bodily injury, a depraved heart, or the commission of certain felonies.”

Brooks’ defense counsel responded that, “while the government correctly described the elements of second-degree murder, the relevant question was whether Mr. Brooks committed attempted second-degree murder, which requires a specific intent to kill.”

The District Court appeared to reject Brooks’ argument, stating Brooks “would have to have the necessary intent for the crime of second-degree murder; that is that he acted with malice aforethought.” Ultimately, the court “specifically [found] that the facts at issue here, particularly Mr. Brooks’ act of retrieving the firearm and shooting at S.J. eight times, caused the [c]ourt to draw the inference that Mr. Brooks was acting with malice aforethought.” The District Court concluded that the elements of federal attempted second-degree murder were shown by a preponderance of the evidence but never made a specific finding of intent to kill.

The PSR also treated Brooks’ 2009 conviction for aggravated assault and battery under Okla. Stat. tit. 21, § 646 as a crime of violence, which caused Brooks’ base offense level for possession of the ammunition to increase to 20. U.S.S.G. § 2K2.1(a)(4)(A). The District Court adopted this unchallenged part of the PSR but did not calculate Brooks’ Guidelines range on that base offense level. Instead, the court applied the attempted murder Guideline in reaching a total offense level of 31 and a Guidelines range of 188 to 235 months. The court sentenced Brooks to the statutory maximum of 120 months’ imprisonment on the ammunition offense and a concurrent term of 235 months on the witness tampering conviction for a total active sentence of 235 months.

Brooks timely appealed, renewing his challenge to the § 2A2.1 cross-reference because the District Court did not find he intended to kill and raising a plain error claim that the District Court erred in finding the Oklahoma conviction constitutes a crime of violence.

The Court observed “[t]o prove an attempt crime, the government must prove an intent to commit the substantive offense.…” United States v. Vigil, 523 F.3d 1258 (10th Cir. 2008). “Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.” Braxton v. United States, 500 U.S. 344 (1991). “Acting with malice by committing a reckless or wonton act without also intending to kill the victim is not sufficient for conviction” of assault with intent to commit murder in violation of 18 U.S.C. § 113(a)(1), according to the Court. United States v. Currie, 911 F.3d 1047 (10th Cir. 2018).

Relying on Currie, the Tenth Circuit held in United States v. Oloa, 2022 U.S. App. LEXIS 34563 (10th Cir. Dec. 14, 2022) (unpublished), that § 2A2.1 “applies when the evidence demonstrates ‘a specific intent to kill.’” Malice demonstrated by reckless and wonton conduct is insufficient. The Sixth Circuit is the only circuit to directly address this issue, holding “a finding of the specific intent to kill … is essential to the application of the attempted-murder cross-reference.” United States v. Morgan, 687 F.3d 688 (6th Cir. 2012).

In Brooks’ case, the District Court contemplated a finding of intent to kill but never made a specific finding. And the evidence of multiple shots fired could sustain such a finding. See Oloa. The Court concluded remand was necessary to give the District Court an opportunity to clarify the matter.

The Court reviewed for plain error Brooks’ challenge to the finding that his Oklahoma conviction for aggravated assault and battery constitutes a crime of violence. To prevail, Brooks was required to show that (1) the District Court erred, (2) the error was plain, (3) the error affected his substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014).

A conviction under Okla. Stat. tit. 21, § 646 for aggravated assault and battery is not categorically a crime of violence for purposes of the Armed Career Criminal Act (“ACCA”). United States v. Winrow, 49 F.4th 1372 (10th Cir. 2022). Because the ACCA’s definition of violent felony is virtually identical to the Guidelines’ definition, the Court draws on “ACCA case law when interpreting the guideline term ‘crime of violence.’” United States v. Williams, 893 F.3d 696 (10th Cir. 2018). The Court determined that Brooks satisfied prong (1) of the plain error test.

The Court stated that Winrow was decided after Brooks was sentenced, but “[a]n error is plain if it is clear or obvious at the time of the appeal.” United States v. Koch, 978 F.3d 719 (10th Cir. 2020). As such, Brooks satisfied prong (2), according to the Court.

Brooks argued that he met prongs (3) and (4) if the Court agreed that the District Court erred in applying U.S.S.G. § 2A2.1(a)(2). That is, without application of the attempted murder cross-reference and without the finding of a previous crime of violence, Brooks argued his Guidelines range ultimately would have been 84 to 105 months.

Because Brooks’ argument was premised on the District Court not finding a specific intent to kill and that premise was far from certain, the Court could not determine if Brooks met prongs (3) and (4). The Court agreed with the Government that the issue was better left open for the District Court to consider on remand.

The Court held “that a defendant can only be sentenced under § 2A2.1 if he intended to kill.” Consequently, the District Court erred in applying the cross-reference based on a finding of malice aforethought alone. The Court determined that the error was not harmless.

Accordingly, the Court vacated the sentence and remanded for resentencing. See: United States v. Brooks, 67 F.4th 1244 (10th Cir. 2023).  

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