ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

DAVID O. CARTER, District Judge.

On March 6, 2017, the United States Magistrate Judge issued a Second Report and Recommendation ("Second R&R"), recommending that petitioner's challenge to her upper term sentence pursuant to Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), be denied and dismissed with prejudice. On March 27, 2017, petitioner filed Objections to the Second R&R. On April 10, 2017, respondent filed a Response to the Objections.

In the Objections, petitioner asserts that the Second R&R's analysis is incorrect in that the issue is not whether a jury could have concluded beyond a reasonable doubt that firing an assault rifle into a home occupied by six people involved a heightened danger that made it worse than the "ordinary" attempted murder. Rather, the issue is whether a jury would have concluded that the offense was worse than the "ordinary" six attempted murders. (Objections at 4). According to petitioner, the fact a military assault rifle was used did not make the offense more dangerous because petitioner "was convicted of attempted murder for all six people in the house, not just the first charged victim" and therefore "[b]ecause the increased danger posed by [the] use of an assault rifle was already captured by the separate charges and sentences, it did not independently aggravate count 8." (Objections at 3). Thus, "although the use of the assault weapon made the offense more dangerous than an ordinary, single attempted murder, it did not make it more dangerous than the `ordinary' attempted murders of six people." (Id.).

As stated in the Second R&R, at least twenty bullets were fired by an assault weapon toward the house — bullets that were designed to penetrate "anything that you find in an urban environment which includes walls and buildings and doors." (Second R&R at 10; Reporter's Transcript at 3415, 3419-20). Moreover, the shooting greatly endangered not just the occupants in the targeted house, but also any individual within the vicinity of that house. (See Second R&R at 10-11). On these facts, the Court finds that the shooting in this case involved a heightened degree of danger that made it distinctively worse than an "ordinary" attempted murder, and even distinctively worse than six "ordinary" attempted murders. Accordingly, the Court concludes that the Cunningham error was harmless.

CONCLUSION

Based on the foregoing and pursuant to 28 U.S.C. § 636, the Court has reviewed the relevant filings, the Magistrate Judge's Second Report and Recommendation, petitioner's Objections to the Report and Recommendation, and respondent's Response to the Objections. The Court has engaged in a de novo review of those portions of the Second Report and Recommendation to which objections have been made. The Court concurs with and accepts the findings and conclusions of the Magistrate Judge.

ACCORDINGLY, IT IS ORDERED: