U.S. v. Johnston
| Decision Date | 10 February 2009 |
| Docket Number | No. 08-10120.,08-10120. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tiffany Michelle JOHNSTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James Jefferson Dewald (argued), U.S. Attorney's office, Dallas, TX, for U.S.
William Ernest Hermesmeyer (argued), Fed. Defender's Office, Fort Worth, TX, for Johnston.
Appeal from the United States District Court for the Northern District of Texas.
Before SMITH and SOUTHWICK, Circuit Judges, and RODRIGUEZ, District Judge.*
Tiffany Johnston ("Tiffany") appeals her sentence. We vacate and remand for resentencing.
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.
Tiffany pleaded guilty of aiding and abetting the possession of a firearm by a convicted felon. Section 2K2.1 of the United States Sentencing Guidelines, which outlines the penalty for various firearm offenses, includes a cross-reference that substitutes the guideline sentence of another offense if the firearm was used "in connection with" that other offense. Because the gun Tiffany transferred to her husband was used to fire at a police officer—an attempted murder—the district court followed the cross-reference and sentenced her for attempted murder. After several adjustments,1 the court determined a criminal history category of I and a total offense level of 38, yielding a guideline range of 235-293 months of imprisonment.
The statutory maximum for Tiffany's crime, aiding and abetting the possession of a firearm by a convicted felon, is 120 months. The district court granted two motions for downward departure: one from the government for Tiffany's assistance in Jason's prosecution and one from Tiffany for various background factors (e.g., spousal abuse). As a result, the court imposed a sentence of 96 months.
Tiffany argues that the court should not have followed the cross-reference. She contends that, if sentenced under the firearm section (rather than the attempted murder section), she would have a criminal history category I and total offense level 17, for a sentencing range of 24-30 months.
We review the interpretation and application of the guidelines de novo. United States v. Mitchell, 366 F.3d 376, 378 (5th Cir.2004). We first determine the correct interpretation of the cross-reference and then turn to whether the district court properly applied it.
The cross-reference at issue states,
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). Section 2X1.1, in turn, directs the district court to § 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder).
The primary question is the meaning of the cross-reference's "knowledge or intent" requirement.2 Tiffany admits that she transferred the gun to Jason with knowledge that it would be possessed in connection with the escape3 but denies that she knew or intended that it would be used in connection with attempted murder. In response, the government relies on Application Note 14:
"In Connection With".—
(A) In General—Subsections (b)(6) and (c)(1) apply if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively.
U.S.S.G. § 2K2.1 cmt. n.14.4 The government, quoting the language of the application note, claims that Tiffany did know that the firearm "had the potential of facilitating" attempted murder, so the cross-reference should be followed.
The government's construction of the cross-reference is in error. Application Note 14 clarifies the meaning of the "in connection with" phrase—specifically, the firearm must have facilitated or had the potential of facilitating another offense.5 The note 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.6
Thus, in the present case, the cross-reference should be followed only if Tiffany transferred the gun knowing7 that Jason would shoot at anyone who tried to stop him. On the other hand, if Tiffany knew a firearm could potentially facilitate attempted murder, but did not know Jason would make such an attempt, then the cross-reference should not be followed. The cross-reference also should not be followed if Tiffany should have known (but did not actually know) Jason would attempt murder.8
The district court did not properly apply the cross-reference. In its statement of reasons, it indicated that it adopted the presentence report, which concluded that the cross-reference 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). Additionally, during the sentencing hearing, the court agreed with the government's statement that "[t]he question is did [the firearm] facilitate or did it...
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