United States v. Ashford
| Decision Date | 20 June 2013 |
| Docket Number | No. 12–4477.,12–4477. |
| Citation | 718 F.3d 377 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. James Anthony ASHFORD, a/k/a Pop–A–Lot, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Kimberly Harvey Albro, Office of the Federal Public Defender, Columbia, SC, for Appellant. Robert Frank Daley, Jr., Office of the United States Attorney, Columbia, SC, for Appellee. ON BRIEF:Allen B. Burnside, Assistant Federal Public Defender, Office of the Federal Public Defender, Columbia, SC, for Appellant. William N. Nettles, United States Attorney, Stacey D. Haynes, Assistant United States Attorney, Office of the United States Attorney, Columbia, SC, for Appellee.
Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge DUNCAN and Senior Judge HAMILTON joined.
Pursuant to a guilty plea, a federal district court convicted James Ashford of illegal possession of a firearm under 18 U.S.C. §§ 922(g)(1), 924(a)(2). Because Ashford had used the firearm on the day of his arrest to shoot another person, the district court applied a “cross reference” under § 2K2.1(c) of the United States Sentencing Guidelines (“USSG”) and substituted the offense level for attempted second-degree murder.
Ashford appeals, posing two claims of error—one legal, one factual—regarding the application of that cross reference. First, Ashford contends that attempted second-degree murder was not a proper cross reference because as a non-groupable offense under USSG § 3D1.2, it is categorically excluded from the “Relevant Conduct” Guideline of USSG § 1B1.3(a)(2). Second, Ashford argues that the facts elicited at sentencing did not establish the requisite “malice” to substantiate the attempted commission of second-degree murder.
For the reasons set forth below, we affirm.
The relevant events concern an altercation at an apartment complex in Columbia, South Carolina, between two couples: James Ashford and his girlfriend Elicia Jackson, and Marcus Chaplin and his girlfriend Takeya Lake. The dispute began on the morning of April 20, 2011, after Jackson learned that Chaplin had told her family members she had been arrested for shoplifting. Jackson confronted Chaplin about the comments, and the two argued until Ashford intervened. Ashford and Chaplin then discussed the matter and conciliated, as did their respective girlfriends later that day, who decided to “let it go.” J.A. 274. As far as Chaplin and Lake were concerned, therefore, the matter was “squashed.” J.A. 57.
For reasons not evident from the record, however, the dispute escalated. Ashford subsequently ventured across town to retrieve his .38 caliber revolver, which as a convicted felon he possessed illegally. When Ashford returned, he sported the revolver about the apartment complex and “told a couple of people that the gun was for [Chaplin].” J.A. 58. Lake relayed Ashford's threats to Chaplin, who then returned to the apartment complex. By the time Chaplin returned, Ashford had left to visit the local store. Chaplin, joined by his cousin Tevin Richardson, decided to pursue Ashford—purportedly to resolve the dispute away from the presence of children who were playing at the apartment complex.
Chaplin and Richardson caught up with Ashford in a narrow alleyway between the store and the apartment complex. After a short confrontation, Ashford drew his firearm, at which point Chaplin and Richardson retreated to a vehicle at the apartment complex. Ashford pursued Chaplin, who pushed a young girl away from his car and told her to go inside. Chaplin then opened the passenger side door and “reached in” to grab a firearm in the glove compartment. J.A. 215. However, Chaplin did not retrieve the weapon, and informed Ashford he was unarmed.
Ashford then stated “I should kill you,” J.A. 74, and fired three shots. The first shot struck Chaplin in the groin, the second struck Chaplin's buttocks as he turned to flee, and the third missed. The wounded Chaplin stumbled before sitting down on the sidewalk. Ashford recalled that he was “not angry,” but “scared” when he shot Chaplin. J.A. 219. After the initial gun fire, Lake retrieved Chaplin's firearm from the vehicle, which, in turn, prompted Ashford to fire two errant shots at Lake. Ashford then asked a neighbor to drive him away from the scene. However, the police stopped the car, arrested Ashford, and seized the firearm.
Ashford pleaded guilty to illegally possessing a firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The presentence investigation report (“PSR”) calculated a Guidelines range of the statutory maximum—120 months—based on a cross reference to attempted first-degree murder under USSG § 2K2.1(c). Ashford objected to the cross reference. Following a hearing, the court adopted the facts in the PSR and concluded that the appropriate cross-referenced offense was attempted second-degree murder—resulting in a Guidelines range of 110–120 months' imprisonment. The court sentenced Ashford to 120 months. Ashford now appeals.
We first consider the appropriate standard of review. Ordinarily, when “determining whether a district court properly applied the advisory Guidelines,” including its application of a cross reference, “we review the district court's legal conclusions de novo and its factual findings for clear error.” United States v. Layton, 564 F.3d 330, 334 (4th Cir.2009) (emphasis omitted). Just days before oral argument, however, the government filed a letter pursuant to Federal Rule of Appellate Procedure 28(j), which permits the submission of supplemental authorities, asserting that Ashford waived the issue of whether USSG § 1B1.3(a)(2) prohibits a cross reference to a non-groupable offense.
We decline this eleventh-hour request to review Ashford's claim for plain error, as the government itself failed to raise any such argument in its opening brief. Regardless of whether a party may truly “waive[ ] waiver,” United States v. Cone, 714 F.3d 197, 224 (4th Cir.2013) (Wynn, J., concurring in part and dissenting in part), we exercise our discretion in this case to excuse any supposed waiver by Ashford. See United States v. Holness, 706 F.3d 579, 592 (4th Cir.2013) ().
We do not countenance a litigant's use of Rule 28(j) as a means to advance new arguments couched as supplemental authorities. “Indeed, considering an argument advanced for the first time in a Rule 28(j) filing is not only unfair to the appell[ant], it also creates the risk of an improvident or ill-advised opinion being issued on an unbriefed issue.” United States v. Leeson, 453 F.3d 631, 638 n. 4 (4th Cir.2006). Here the late timing of the government's Rule 28(j) letter prevented Ashford from contesting the government's waiver argument, and under these circumstances waiver must be a two-way street. In fact, we have identified “procedural ambush” as a scenario that warrants an exception to the rules of waiver. United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984). Accordingly, in the interests of fairness and the integrity of the Federal Rules of Appellate Procedure, we reject the government's plain error argument and review Ashford's first claim of error de novo.
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and
(4) any other information specified in the applicable guideline.
USSG § 1B1.3(a) (emphasis added).
Ashford maintains that all four subsections must apply to sustain a cross reference. Because USSG § 3D1.2 expressly excludes crimes against the person from grouping, including attempted murder, Ashford contends that USSG § 1B1.3(a)(2) is not satisfied, and the district court should not have applied a cross reference. The government, however, reads the four subsections disjunctively. In other words, a cross reference may apply either to a non-groupable offense committed “during the commission of the offense of conviction” under USSG § 1B1.3(a)(1), or to a groupable offense committed within “the same course of conduct or common scheme or plan as the offense of conviction” under USSG § 1B1.3(a)(2). Because the attempted murder occurred on the same day...
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