Tenth Circuit Vacates Sentence After Insufficient Information About Enhancement: Brooks

Brooks was charged in a two-count indictment with being a felon in possession of ammunition and a firearm. A superseding indictment was filed which charged him with one count of witness tampering. Brooks proceeded to trial and was found guilty on the possession of ammunition and witness tampering charges but acquitted of the firearm count.

Offenses pertaining to unlawful possession of ammunition fall under U.S.S.G. 2K2.1, which permits cross-reference under U.S.S.G. 2X1.1 “[i]f the defendant used or possessed any . . . ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense. Section 2X1.1(a) directs the courts to apply the base offense level from the guideline for the substantive offense. In calculating Brooks’ guidelines range, the PSR applied a cross-reference under 2A2.1(a)(2) for attempted second-degree murder.

Brooks objected to the enhanced offense level, arguing that the government’s evidence was insufficient to prove he harbored an intent to kill. The government argued the cross-reference was applicable because second-degree murder only required “malice aforethought” which “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.” In response, Brooks agreed that the government correctly iterated the elements of second-degree murder, but that the relevant question was whether Brooks committed attempted second-degree murder, which requires a specific intent to kill. In arguing that there was no evidence of the requisite intent, the district court responded: “Well, he shot eight times.” The district court found Brooks “would have to have the necessary intent for the crime of second-degree murder; that is that he acted with malice aforethought.” The district court ultimately overruled Brooks’ objection, applied the attempted murder cross-reference, and sentenced brooks to a guidelines sentence of 235 months imprisonment.

On appeal before the Third Circuit, Brooks renewed his challenge to the 2A2.1 cross-reference and argued that district court erred because it did not find an intent to kill. In reviewing the question de novo, the Third Circuit noted that, “[a]lthough 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, 351 (1991). Accordingly, for the 2A2.1 cross-reference to apply, evidence must demonstrate a specific intent to kill the victim and malice demonstrated by reckless and wanton conduct is insufficient.

Despite this, the government argued that the guidelines have no such requirement and whether the offense would have been a first- or second-degree murder depends only on whether it had been completed. The Third Circuit rejected the government’s argument, concluding that the brief text of the guidelines do not suggest that a defendant who did not have the intent required to commit attempted murder can be sentenced under 2A2.1. The Third Circuit held that because attempted murder requires an intent to kill, it was improper for the district court to apply the cross-reference based on a finding of only malice aforethought.

The court turned to the government’s next argument, that application of the cross-reference was harmless error. The court rejected this argument as well. The Third Circuit found that the district court’s thought process in applying the cross-reference was not evident from the record alone. Even though Brooks raised the argument that the cross-reference could not be applied without a finding of intent to kill, the district court still never made a specific finding on the issue.

Notably, the district court stated it would have reached the same sentence even without the cross-reference of the ammunition charge. However, the 235-month sentence was clearly tied to the 188 to 235 months guideline range calculated by the court. Without the cross-reference, the guideline range would have been significantly lower. As such, the Third Circuit concluded that the error was not harmless.

Accordingly, the Third Circuit held that a defendant can only be sentenced under 2A2.1 if he intended to kill. The district court erred in applying the cross-reference based on a finding of malice aforethought alone and, because that error was not harmless, the court vacated Brooks’ sentence and remanded for resentencing.