Sentence Vacated: Attempted Murder Cross-Reference Improperly Applied to Defendant Convicted of Aiding & Abetting Felon-In-Possession
Just because the Guidelines are advisory doesn't mean they aren't important, as this case dramatically illustrates. And read carefully, because there's a quiz at the end. (Don't worry, it's a fun one.)
Tiffany’s husband Jason Johnston, along with Cleties Conley, escaped from prison and made their way to a friend’s house. Jason called Tiffany to pick him up and asked her to bring his handgun. She obligingly packed the weapon in the trunk of her car, loaded her son into the back seat, and collected the escapees. Once on the road, Jason retrieved his gun from the trunk.
Law enforcement officers initiated a traffic stop and ordered the foursome to exit the vehicle. Tiffany pulled over and opened the door to comply, but Jason fired a shot toward the officers. Tiffany slammed the door and sped away, then stopped in a parking lot and indicated that she would surrender. She, her son, and Conley got out of the car; Jason drove off alone and was caught.
For that, Tiffany Johnston was convicted of aiding and abetting the offense of felon-in-possession. The probation officer recommended, and the district judge agreed, that a cross-reference to the attempted murder guideline should be applied "because 'the defendant knew or should have known that providing the firearm to [Jason] would allow him to use the firearm against law enforcement during the escape' (emphasis added)." That, along with other enhancements, raised the guidelines calculation from 24 to 30 months (as calcualted under the firearm guideline) to 235 to 298 months. But the advisory Guidelines "range" was only 120 months, because the offense carried a 10-year statutory maximum. The district judge departed dowward to 96 months' imprisonment. Tiffany appealed.
Reviewing the Guidelines application question de novo, the court of appeals held that the district court improperly applied the cross-reference.
The cross-reference in question provides that,
If the defendant . . . transferred a firearm . . . with knowledge or intent that it would be used or possessed in connection with another offense, apply . . . § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above . . . .U.S.S.G. § 2K2.1(c)(1) (emphasis added). Tiffany argued that although she gave the gun to Jason knowing that he would possess it in connection with the escape, she did not know or intend that he would use it in connection with attempted murder.
The Government countered by pointing to Application Note 14, which explains that the cross-reference "appl[ies] if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively." According to the Government, Tiffany knew that the firearm "had the potential of facilitating" attempted murder, thus triggering the cross-reference.
The court disagreed. Although the application note "clarifies the meaning of the 'in connection with' phrase[,]" it
does not change the requirement that the defendant transferred the firearm with the “knowledge or intent” that it would be “used or possessed” for that other offense. To follow the cross-reference and apply the sentence for another offense, the district court must find two elements: that (i) the firearm facilitated or had the potential to facilitate another offense, and (ii) the defendant transferred the firearm knowing or intending it to be used or possessed for that offense. Stated another way, it is not enough for the defendant to know that the firearm is capable of facilitating another offense; he must know that the firearm will be used to facilitate or potentially facilitate that offense.
Because the district court found only that Tiffany "knew or should have known" that Jason would attempt murder with the gun, rather than that she knew Jason would actually attempt murder, it improperly applied the cross-reference. Thus, the sentence was vacated and the case remanded for resentencing.
A couple of things to note. First, the Government also argued that the cross-reference could be applied on the basis of general relevant conduct principles. But as the court pointed out, the relevant conduct guideline only applies "unless otherwise specified," and the knowledge requirement of the cross-reference does otherwise specify. That's not the only Guidelines provision carving out an exception to the relevant conduct guideline, so keep your eyes peeled for that sort of thing.
Second, there is at least one part of the gun guideline that is triggered merely by a reason-to-believe, rather than actual knowledge:
The cross-reference is triggered only where there is intent or knowledge; it is not followed where the defendant merely had reason to believe the firearm would be used to commit another offense. By comparison, U.S.S.G. § 2K2.1(b)(6), also addressed by Application Note 14, explicitly includes such situations: “If the defendant . . . transferred any firearm . . . with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18” (emphasis added).
Finally, a discussion question: assume the district court had found that Tiffany actually knew--despite her denial---that Jason would attempt murder with the gun, and applied the cross-reference on that basis. Would Tiffany have an as-applied Fifth and Sixth amendment challenge to her 96-month sentence?