United States v. Brooks.
No. 21-6059. 5/22/2023. W.D.Okla. Judge Seymour. Attempted Second Degree Murder—US Sentencing Guidelines—Aggravated Assault and Battery—Crime of Violence.
May 22, 2023
Brooks and his girlfriend S.J. had an argument in his vehicle in a parking lot. S.J. ran from Brooks’s vehicle and got into the back seat of a black car pulling out of the parking lot. Brooks retrieved a gun from his vehicle and shot at the car as it was driving away. One of the bullets entered the car through the license plate and struck S.J. in the buttocks. Brooks was found guilty of being a felon in possession of ammunition and witness tampering. The presentence report applied a cross-reference to US Sentencing Guideline (USSG) § 2A2.1(a)(2) for attempted second degree murder, using Brooks’s prior Oklahoma conviction for aggravated assault and battery, which it treated as a crime of violence, as a base offense level under § 2K2.1(a)(4)(A). Brooks objected to the cross-reference, but the sentencing court concluded that he committed attempted second degree murder and applied the cross-reference. Based on the attempted murder guideline and other adjustments not challenged on appeal, the district court calculated a total offense level of 31 and a guideline range of 188 to 235 months. Brooks was sentenced to incarceration of 120 months for the ammunition charge and 235 months for the witness tampering charge, to be served concurrently.
On appeal, Brooks argued that the district court was required to find that he acted with specific intent to kill in concluding that he committed attempted second degree murder but instead found he acted with malice aforethought. Under § 2K2.1(c)(1)(A), sentencing courts should cross-reference to USSG § 2X1.1 if the defendant used or possessed ammunition in connection with the commission or attempted commission of another offense. Section 2X1.1(a) directs courts to apply the base offense level from the guideline for the substantive offense. The guideline for assault with intent to commit murder and attempted murder is § 2A2.1. However, a defendant can only be sentenced under § 2A2.1 if they intended to kill. Specific intent to kill can be inferred from a defendant firing a gun aimed at an individual or firing multiple rounds. Here, it is unclear from the record whether the court made such an inference, and the court never made a specific finding on intent to kill. Accordingly, the court’s finding on malice aforethought was insufficient to support the cross-reference to § 2A2.1. Further, the guideline range could have been significantly lower without the attempted murder cross-reference, so the error was not harmless.
Brooks also argued that the district court plainly erred because Oklahoma aggravated assault and battery is not a crime of violence. The government conceded, and the Tenth Circuit agreed, that Oklahoma aggravated assault and battery is not a crime of violence under, under United States v. Winrow, 49 F.4th 1372 (10th Cir. 2022). But Brooks’s argument that his substantial rights were impacted by this error is speculative, so the district court should consider it on remand.
The sentence was vacated and the case was remanded for resentencing.