U.S. v. Jones, 02-2068.

• Decision Date: 24 December 2002
• Docket Number: No. 02-2068.,02-2068.
• Citation: 313 F.3d 1019
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Trimaine JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

313 F.3d 1019

UNITED STATES of America, Plaintiff-Appellee, v. Trimaine JONES, Defendant-Appellant.

No. 02-2068.

United States Court of Appeals, Seventh Circuit.

Argued October 17, 2002.

Decided December 24, 2002.

Joy Bertrand (argued), Office of the U.S. Atty., Milwaukee, WI, for Plaintiff-Appellee.

Nancy Joseph (argued), Federal Defender Services of Eastern Wisconsin, Inc., Milwaukee, WI, for Defendant-Appellant.

Before EASTERBROOK, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Appellant Trimaine Jones appeals his sentence on a felon in possession of a firearm charge. He argues that the district court incorrectly applied the homicide cross-reference found in § 2K2.1(c) of the federal sentencing guidelines, resulting in an incorrectly increased base offense level and sentence. Because we believe the district court did not err in applying the cross-reference, we affirm the sentence imposed below.

I. History

On August 28, 2001, Trimaine Jones was indicted by a federal grand jury on two counts: (1) being a felon in possession of a firearm and (2) being a felon in possession of ammunition. While these charges were pending, on September 6th, Trimaine was released from custody on his own recognizance, under the condition that he reside at a halfway house. Unfortunately, on September 20th, he disappeared from the halfway house and a warrant was issued for his arrest. It was not until October 4th, after Trimaine was involved in an armed robbery that resulted in the death of a sixteen-year-old boy, that he was reapprehended.

On September 30th, Milwaukee police officers were called to the scene of a robbery and shooting. There they found sixteen-year-old Jemarcus Beck shot to death. After some investigation, the police determined that Trimaine, his brother Neimyiah, and their friend Rashaad Cotton were responsible for the robbery and murder. Earlier that day, the three had agreed to commit a robbery, driving around in Cotton's car until they happened upon three teenage males. At that point, Cotton stopped the car, and Neimyiah and Trimaine — both armed — got out and approached the young men. While two of them fled safely, Beck could not get away. Neimyiah demanded that Beck give up his money, and when he did not act quickly enough, Neimyiah shot him. Cotton and the Jones brothers fled. Beck was pronounced dead at the scene.

On October 4th, Milwaukee police had begun a search for the Jones brothers after concluding that they were involved in the September 30th armed robbery and murder. As the arresting officers took Neimyiah into custody, they saw Trimaine walking by the scene. The police ordered him to stop, but instead he fled. During a brief foot pursuit, the police saw Trimaine clutch at the waistband of his pants. The police eventually arrested Trimaine as he attempted to scale a fence; a black 9mm semi-automatic handgun was found at the base of the fence where Trimaine had attempted to climb it. Trimaine later admitted to the police that he had been in possession of the gun found at the scene and had possessed that same gun during the September 30th robbery.

Trimaine was subsequently indicted by a second federal grand jury on one count of being a felon in possession of a firearm, based on his October 4th arrest. On December 3rd, Trimaine was found guilty on both counts charged in the first indictment, and was later sentenced to 70 months incarceration on those charges. On March 6, 2002, Trimaine pleaded guilty to the second felon-in-possession charge, pursuant to an agreement with the government, and was sentenced to 120 months imprisonment on this count. It is this second sentence at issue in this appeal.

II. Analysis

In reviewing the sentence imposed by the district court, we review factual determinations underlying the application of the sentencing guidelines for clear error; interpretation of a guidelines provision is a legal question we review de novo. United States v. Taylor, 272 F.3d 980, 982 (7th Cir.2001). Application of the homicide cross-reference is reviewed for clear error. United States v. Westmoreland, 240 F.3d 618, 635 (7th Cir.2001).

Generally, the federal sentencing guideline applicable to a violation of 18 U.S.C. § 922(g)(1), prohibiting possession of a firearm by a felon, is § 2K2.1, which provides for varying base offense levels depending on the offense and offender characteristics. See U.S.S.G. § 2K2.1(a), (b) (2002). Additionally, § 2K2.1(c) provides for a "Cross Reference," authorizing a sentencing court to look to other guidelines provisions to impose a higher sentence on an offender under certain circumstances. In this case, Trimaine was sentenced pursuant to the homicide cross-reference found in § 2K2.1(c)(1)(B):

If the defendant used or possessed any firearm ... in connection with the commission... of another offense ... apply... (B) if death resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense level is greater than that determined above.

U.S.S.G. § 2K2.1(c)(1). The district court reasoned that because Trimaine had been arrested for possession of the same firearm he had previously used during the armed-robbery/felony-murder incident four days earlier, the homicide cross-reference applied. Employing that provision, the district court determined Trimaine's base offense level to be 29,¹ adjusted that level downward to 26 based on the defendant's acceptance of responsibility, and accordingly sentenced Trimaine to the statutory maximum of 120 months imprisonment. According to the presentence investigation report, had the district court found the homicide cross-reference inapplicable, Trimaine would have faced a base offense level of 20, with a corresponding sentence range of 63 to 78 months.

In this appeal, Trimaine argues that it was error for the district court to consider the armed-robbery/felony-murder episode of September 30th in determining his base offense level. Essentially, Trimaine contends that the armed-robbery/felony murder was not "relevant conduct" that should have been considered in determining his sentence. He concedes that the sentencing court is free to look beyond the conduct of the offense of conviction; the issue in this appeal is how far beyond the offense of conviction the district court was permitted to reach to determine an appropriate sentence.

We begin by emphasizing that the language of the guidelines and decisions by this Court make clear that § 1B1.3, the relevant conduct provision of the guidelines, governs the application of the homicide cross-reference found in § 2K2.1(c).² "The general principle which controls whether a cross-reference is appropriate is the relevant conduct guideline.... [but][t]he relevant conduct guideline is not without limits." Taylor, 272 F.3d at 982-83 (citation omitted). Specifically, the relevant conduct provision states:

Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two ... shall be determined based on the following:

(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant...

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 ....

U.S.S.G. § 1B1.3(a). This section thus constrains what conduct a sentencing court may consider when determining the appropriate base offense level, cross-references, and adjustments for a particular offender. We note that the relevant conduct guideline is not limited temporally: "the Relevant Conduct provision directs a court to sentence a defendant for uncharged conduct germane to the charge-offense by authorizing it to consider events before, during, and after the offense conduct." United States v. Ritsema, 31 F.3d 559, 566 (7th Cir.1994).

Therefore, before the district court could apply the § 2K2.1 homicide cross-reference to Trimaine, it was required to find that the armed robbery/felony murder of September 30th was relevant to the task of sentencing him for the firearm-possession offense. Section 1B1.3(a)(1) sets out three general situations in which conduct will be considered relevant: conduct that occurs "during the commission of the offense," conduct that occurs "in preparation for" an offense, or conduct that occurs "in the course of attempting to avoid detection or responsibility" for an offense. U.S.S.G. § 1B1.3(a)(1). In this case, the armed-robbery/felony-murder incident was not conduct "in preparation for" the offense of being a felon in possession of a firearm, nor was it conduct occurring "in the course of attempting to avoid detection or responsibility" for that offense. That leaves the possibility that the armed robbery/felony murder is relevant conduct if it "occurred during the commission of the offense of conviction." We think that clearly to be the case.³

In United States v. Smith, we approved the sentencing court's consideration of the offender's use of a firearm to shoot and kill a fellow partygoer when it sentenced that offender for illegally possessing the firearm as a felon. 5 F.3d 259, 261-62 (7th Cir.1993). We noted that "[w]hile Smith carried the handgun, his `other offense' (not his `offense of conviction') involved the death of [the fellow partygoer]." Id. at 261 (emphasis added). Trimaine's...