Filed: Feb. 13, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4662 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OTIS EUGENE BURNS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cr-00120-CCE-1) Argued: December 11, 2014 Decided: February 13, 2015 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Affirmed by published opinion. Judge Duncan wrote the opinion
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4662 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OTIS EUGENE BURNS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cr-00120-CCE-1) Argued: December 11, 2014 Decided: February 13, 2015 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Affirmed by published opinion. Judge Duncan wrote the opinion,..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4662
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OTIS EUGENE BURNS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00120-CCE-1)
Argued: December 11, 2014 Decided: February 13, 2015
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Gregory joined.
ARGUED: Sophia L. Harvey, LIAO HARVEY PC, Winston-Salem, North
Carolina, for Appellant. Graham Tod Green, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Ripley Rand, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
DUNCAN, Circuit Judge:
Otis Eugene Burns pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). The district court found that he had used the
firearm in an attempted murder, and therefore applied the United
States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range
for attempted murder to determine his sentence. Burns disputed
that he had the requisite mens rea for attempted murder and
argued that the Guidelines range for aggravated assault should
have applied to his offense instead. Because Burns made this
argument, the district court denied him a downward adjustment
for acceptance of responsibility. Burns appeals from the denial
of the acceptance-of-responsibility reduction, arguing that
because he admitted to the offense of conviction--being a felon
in possession of a firearm--and also to his physical conduct in
discharging that firearm into an occupied vehicle, he is
entitled to that downward adjustment. For the following
reasons, we affirm.
I.
On February 1, 2013, Burns was involved in an altercation
with Eric Poole at a convenience store. Later that night, Burns
went to the apartment of Poole’s ex-girlfriend, Breanna Tarlton,
and asked where he could find Poole. Burns yelled at Tarlton
2
and fired a shot into the air with a Rossi .357 caliber handgun
before leaving her apartment. Brittney Wilson, Burns’s fiancée,
provided a statement that the next day--on February 2, 2013--
Burns told her he wanted “to kill” Poole for “jumping him at the
store.” J.A. 107–08, ¶5.
After reportedly making these comments to Wilson on
February 2nd, Burns was in his parked car when he saw Poole in
the driver’s seat of a car in which Tarlton and three other
passengers were also sitting. Wilson testified that she was in
Burns’s car at that time, and that she heard Burns tell Poole
the following: “You thought that was funny from last night, what
happened, what you did at the store. I told you I was going to
shoot you.” J.A. 53. She further testified that Burns
initially left his car but then returned to retrieve his gun,
and at that time he said to her, “I’m going to shoot him.” J.A.
54–55. She also recalled telling the police that Burns told
Poole, “Motherfucker, I’m going to kill you.” J.A. 57. Under
cross-examination, Wilson testified that her window was
partially open and that while Burns was walking toward Poole’s
car, he said, “I’m going to shoot that motherfucker.” J.A. 60–
61.
After Tarlton exited Poole’s car from the front passenger
seat, Burns stood next to the open passenger door and fired one
shot into the car--still occupied by Poole in the driver’s seat
3
and at least one other person in the back seat 1--but no one was
injured. 2 Poole left in his vehicle. Burns initially drove in
pursuit of Poole, firing a round into the air, but eventually
broke off the pursuit.
A week later, on February 9, 2013, local law enforcement
officers arrested Burns after finding him in a vehicle with a
loaded .357 caliber handgun. A federal grand jury charged Burns
with being a felon in possession of a firearm from “on or about
February 1, 2013,” to “on or about February 9, 2013.” J.A. 6.
Burns pleaded guilty pursuant to a written plea agreement.
Under the terms of the agreement, if the district court found
Burns eligible for a two-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a), and if Burns’s total
offense level was 16 or higher prior to that reduction, then the
United States would recommend an additional one-level reduction
pursuant to § 3E1.1(b) for timely assisting authorities in the
investigation.
1
It is unclear from the record how many of the three people
originally in the back seat, if any, exited the car prior to the
shooting.
2
A police detective testified that the bullet passed
downward over the center console, through the right front corner
of the driver’s seat underneath the knee area, and into the
floorboard.
4
The Presentence Investigation Report (“PSR”) recommended a
base offense level of 27 after applying a “cross reference”--
i.e., “an instruction to apply another offense guideline,”
U.S.S.G. § 1B1.5(a)--to the guideline for attempted murder based
upon the shooting. The PSR also recommended a three-level
reduction for acceptance of responsibility--two levels under
§ 3E1.1(a) and the additional level, referenced in the plea
agreement, under § 3E1.1(b). With that reduction, Burns’s
offense level would have been 24, which, coupled with his
criminal history category of V, would have resulted in a
Guidelines range of 92 to 115 months’ imprisonment.
Burns objected to the PSR, arguing that the evidence did
not support the cross reference to attempted murder and that the
court should instead cross-reference aggravated assault, which
would have resulted in a Guidelines range of 70 to 87 months.
The government responded that the attempted-murder cross
reference was appropriate and that Burns’s objections denied
relevant conduct, thereby making him ineligible for the
acceptance-of-responsibility reduction.
At sentencing, Burns challenged Wilson’s statements and
argued that the downward trajectory of the bullet showed that he
intended not to cause Poole bodily harm, but instead to shoot
into the empty passenger seat--“in essence, to give a warning
shot.” J.A. 73. After considering the bullet’s downward
5
trajectory and Burns’s arguments, the district court concluded
that, “taken . . . together with the language used, as testified
to by Ms. Wilson, and the conduct the night before[,] . . . the
evidence of . . . attempted second-degree murder is very, very,
very, very strong.” J.A. 77. The court further concluded that
Burns had falsely denied relevant conduct, and therefore
declined to give Burns a three-level reduction for acceptance of
responsibility. Based on those findings, the court determined
that Burns’s total offense level was 27. Coupled with Burns’s
criminal history category of V, this offense level resulted in a
Guidelines recommendation of 120 to 150 months’ imprisonment.
See U.S.S.G. ch. 5, pt. A (2012). The statutory maximum for
Burns’s offense of conviction was 120 months’ imprisonment. See
18 U.S.C. § 924(a)(2). After hearing argument from counsel on
the appropriate sentence, the court sentenced Burns to 120
months’ imprisonment. Burns timely appealed.
II.
Before turning to the merits of this appeal, we first
provide an overview of the relevant Guidelines sections and the
district court’s application of those sections. The section
applicable to Burns’s offense of conviction, possessing a
firearm as a felon, is U.S.S.G § 2K2.1. The base offense level
under that section ranges from 6 to 26, depending on the
6
circumstances. U.S.S.G. § 2K2.1(a). However, when a felon in
possession of a firearm uses that firearm in connection with
another offense, the sentencing judge should also determine the
base offense level for that other offense. See U.S.S.G.
§ 2K2.1(c)(1). If the offense level for that other offense is
higher than the offense level under § 2K2.1, then the court must
apply the offense level for that other offense, thereby cross-
referencing it to determine the ultimate sentence. See id.
Here, the district court first determined that Burns’s base
offense level under § 2K2.1 was 24. Then, because the
government had shown by a preponderance of the evidence that
Burns committed attempted murder with the firearm, the court
calculated the base offense level for attempted murder. Cf.
United States v. Davis,
679 F.3d 177, 182 (4th Cir. 2012)
(“[T]he Government has the burden to prove a cross-referenced
offense by a preponderance of the evidence under U.S.S.G.
§ 2K2.1(c)(1)(A).”). Under subsection (a)(2) of the guideline
for attempted murder, U.S.S.G. § 2A2.1, Burns’s base offense
level was 27. Because Burns’s base offense level was higher
under the attempted-murder guideline (27) than under the felon-
in-possession guideline (24), the court cross-referenced to the
attempted-murder guideline, applying the base offense level of
27.
7
U.S.S.G. § 3E1.1 governs whether Burns could receive a
downward adjustment for acceptance of responsibility from his
base offense level of 27. That section instructs the sentencing
judge to decrease the defendant’s offense level by two if he
“clearly demonstrates acceptance of responsibility for his
offense,” U.S.S.G. § 3E1.1(a), and to decrease it by one more
level on motion by the government if his offense level prior to
the two-level reduction was 16 or higher, U.S.S.G. § 3E1.1(b).
The commentary provides a non-exclusive list of
“appropriate considerations” to determine whether a defendant is
entitled to an acceptance-of-responsibility reduction. U.S.S.G.
§ 3E1.1 cmt. n.1. Only the first is relevant here:
(A) truthfully admitting the conduct comprising the
offense(s) of conviction, and truthfully admitting or
not falsely denying any additional relevant conduct
for which the defendant is accountable under § 1B1.3
(Relevant Conduct). . . . [A] defendant who falsely
denies, or frivolously contests, relevant conduct that
the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.
U.S.S.G. § 3E1.1 cmt. n.1(A) (emphasis added).
In § 1B1.3--“Relevant Conduct (Factors That Determine the
Guideline Range)”--the Guidelines provide that the bases for
cross references under Chapter Two and adjustments under Chapter
Three include “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
the defendant . . . that occurred during the commission of the
8
offense of conviction.” U.S.S.G. § 1B1.3(a)(1)(A). Therefore,
“all acts and omissions” in connection with which Burns used the
firearm are relevant conduct under § 1B1.3(a). And under
§ 3E1.1 cmt. n.1(A), falsely denying any of those acts or
omissions is inconsistent with acceptance of responsibility and
would support denial of the acceptance-of-responsibility
reduction.
III.
With the preceding Guidelines provisions in mind, we now
turn to the merits of this appeal. In response to our order,
the parties briefed the following question: “By disputing that
he possessed the mental state necessary to commit the cross-
referenced (but uncharged) offense of attempted murder, did the
appellant dispute ‘relevant conduct’ such that the district
court properly denied him credit for acceptance of
responsibility?” Order, May 1, 2014, ECF No. 26. In other
words, is acting with a particular mental state relevant conduct
within the meaning of U.S.S.G. 1B1.3(a)(1)(A)? We hold that the
answer to both questions is yes.
Appellant argues that he did not deny relevant conduct
because he admitted performing the physical act of shooting the
9
gun into the occupied vehicle, 3 albeit while still disputing that
he intended to kill Poole. Therefore, Appellant argues, the
district court erred by denying him an acceptance-of-
responsibility reduction. We disagree.
A.
We review the district court’s interpretation of “the
meaning and legal components of the term ‘relevant conduct’” de
novo, United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014),
and its acceptance-of-responsibility determination for clear
error, United States v. Dugger,
485 F.3d 236, 239 (4th Cir.
2007).
B.
When Burns disputed that he acted with the intent to kill,
he denied “relevant conduct for which [he] is accountable under
[U.S.S.G.] § 1B1.3.” U.S.S.G. § 3E1.1 cmt. n.1(A). He thereby
jeopardized his claim to an acceptance-of-responsibility
reduction. 4 Our analysis is complicated by the fact that the
3
Burns’s counsel acknowledged at oral argument that the
physical act of shooting was relevant conduct. See Oral Arg. at
5:40–6:10, United States v. Burns, No. 13-4662 (4th Cir. Dec.
11, 2014), available at http://coop.ca4.uscourts.gov/OAarchive
/mp3/13-4662-20141211.mp3.
4
We do not suggest that there is no avenue for challenging
the application of a cross reference without jeopardizing a
reduction for acceptance. A district court might well find that
a defendant who admits to conduct underlying a cross reference,
but disputes its legal significance, has nevertheless acted in a
(continued)
10
Guidelines do not define “relevant conduct” in terms of an
“offense.” Rather, § 1B1.3(a) provides that, “[u]nless
otherwise specified, . . . cross references in Chapter Two[]
and . . . adjustments in Chapter Three[] shall be determined on
the basis of,” among other factors, “acts and omissions
committed . . . by the defendant,” U.S.S.G. § 1B1.3(a)(1)(A)
(emphasis added).
Burns extrapolates from this language that relevant conduct
encompasses only physical acts. While not lacking in
superficial appeal, this argument ultimately proves untenable.
The “acts” referred to must include more than just physical
movement. Otherwise, it would be impossible to cross-reference
crimes of attempt, which, by definition, include a mens rea
element. See, e.g., Martin v. Taylor, 857 F.2d 958, 961 (4th
Cir. 1988) (noting that “[a]n attempt crime requires specific
intent to commit a crime”). Yet, we have held that the “acts
and omissions” provision provides a sufficient basis for cross
references to crimes of attempt. For example, in United States
v. Ashford, we held that “the district court properly imposed a
cross reference pursuant to USSG § 1B1.3(a)(1)” to “attempted
second-degree murder.”
718 F.3d 377, 383 (4th Cir. 2013); see
manner consistent with acceptance of responsibility. As we
explain, however, Mr. Burns disputes the conduct itself.
11
also id. (holding that U.S.S.G. § 1B1.3(a)(1) prescribes
“sufficient conditions for relevant conduct”); cf. United States
v. Sealey, 203 F. App’x 487, 490 (4th Cir. 2006) (per curiam)
(affirming a cross reference to attempted murder where the
defendant was aware that his conduct created a serious risk of
death); United States v. Rice, 3 F. App’x 64, 67 (4th Cir. 2001)
(per curiam) (affirming a cross reference to attempted sexual
abuse based upon the motivation behind the defendant’s attempted
kidnapping).
Given that the “acts and omissions” referenced in U.S.S.G.
§ 1B1.3(a)(1) can form the basis for the cited cross references,
those acts and omissions necessarily incorporate mens rea.
Accordingly, when Burns denied that his “acts and omissions”
included shooting with the intent to kill, he denied relevant
conduct attributable to him. 5 Because falsely denying relevant
conduct is “inconsistent with acceptance of responsibility,”
5
Indeed, in a different context, this court has held that
the term “conduct” in the Guidelines encompasses mens rea. On
that basis, we affirmed the denial of an acceptance-of-
responsibility reduction when a defendant disputed a mens rea
element of the offense of conviction while admitting to the
physical act. See, e.g., United States v. Castner, 50 F.3d
1267, 1279–80 (4th Cir. 1995) (“Intent is an essential element
of major fraud against the United States . . . . Thus, the
district court did not err in refusing to adjust downward when
[the defendant], by denying his intent to defraud, did not
completely accept responsibility for all of his criminal
conduct.”).
12
U.S.S.G. § 3E1.1 cmt. n.1(A), the district court did not err by
denying Burns a three-level reduction. Accord United States v.
Pauley, 289 F.3d 254, 261 (4th Cir.), modified on reh’g on other
grounds,
304 F.3d 335 (4th Cir. 2002) (noting that the defendant
“failed to demonstrate his entitlement to a reduction for
acceptance of responsibility” because, among other reasons, “he
continue[d] to deny his culpability for the execution-style
double murder of [two people by] asserting that the death of
[one victim] was the result of an accidental firing”).
IV.
Accordingly, for the foregoing reasons, the judgment of
district court is
AFFIRMED.
13
