United States v. Tunley

• Decision Date: 13 January 2012
• Docket Number: No. 10–3782.,10–3782.
• Citation: 664 F.3d 1260
• Parties: UNITED STATES of America, Appellee, v. Alfonso M. TUNLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

664 F.3d 1260

UNITED STATES of America, Appellee,

v.Alfonso M. TUNLEY, Appellant.

No. 10–3782.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 21, 2011.Filed: Jan. 13, 2012.

Susan M. Hunt, Kansas City, MO, argued, for appellant.

Paul S. Becker, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., on the brief), for appellee.

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Alfonso Tunley pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After a contested sentencing hearing, the district court ¹ sentenced Tunley to 120 months imprisonment. Tunley appeals, challenging the district court's application of the Sentencing Guidelines. We affirm.

I.

For over a year, Tunley was in an “off and on again” romantic relationship with Dacia Wright. In the early morning hours of November 16, 2008, after a night of attending clubs and drinking, the pair arrived at Tunley's brother's house, where a party was already underway. At the party, Wright attacked Tunley and was restrained by onlookers. The couple left the party separately after Wright's outburst. Tunley went home by himself. But Wright arrived at his residence shortly thereafter. Police were dispatched to Tunley's home after they received a call from Tunley stating that his friend had been shot. When police officers arrived, they stopped Tunley as he was walking away from his house. Police found a handgun lying on the sidewalk near Tunley. Police then entered Tunley's house and found Wright dead on the floor of the bedroom. She had been shot in the head.

On April 8, 2009, a one-count indictment was returned by a grand jury charging Tunley with being a felon in possession of a firearm in violation of sections 922(g)(1) and 924(a)(2), based on his possession of the handgun on November 16, 2008. On February 2, 2010, Tunley pled guilty to the one-count indictment. The United States Probation Office prepared a pre-sentence investigation report (PSR) setting Tunley's base offense level at thirty-eight. The PSR also included a three-level reduction for acceptance of responsibility. In arriving at the base offense level of thirty-eight, the PSR applied a cross-reference to the Guidelines section 2A1.2 pursuant to section 2K2.1(c)(1)(B), based on Tunley's possession of the firearm in connection with another felony offense where death resulted. Tunley objected to the application of section 2A1.2, arguing that Wright's death was not murder but instead was justified as self-defense.

The district court conducted a sentencing hearing on November 18, 2010, at which ten government witnesses and five defense witnesses testified. The court made credibility findings and concluded that sections 2K2.1(c)(1)(B) and 2A1.2 applied because the Government had proven by a preponderance of the evidence that Tunley was guilty of second degree murder. As a result, the district court overruled Tunley's objection. The court sentenced Tunley to 120 months imprisonment, the statutory maximum.

II.

On appeal, Tunley argues that the district court erred in arriving at his base offense level in its application of the Sentencing Guidelines. Tunley contends that the Government failed to disprove Tunley acted in lawful self-defense. In the alternative, Tunley argues that the district court erred in finding that Tunley's actions constituted second degree murder and not voluntary manslaughter. “We review de novo the district court's application of the Guidelines, and we review for clear error the district court's factual findings.” United States v. Betts, 509 F.3d 441, 445 (8th Cir.2007). “The district court's credibility determinations are ‘virtually unreviewable on appeal.’ ” United States v. Butler, 646 F.3d 1038, 1041 (8th Cir.2011) (citation omitted).

Guidelines section 2K2.1(c)(1) directs that “[i]f the defendant used or possessed any firearm or ammunition in connection with the commission ... of another offense” and death resulted, the district court is to apply “the most analogous offense guideline” from section 2A1. United States Sentencing Commission, Guidelines Manual, § 2K2.1(c)(1). Section 2A1, in turn, includes instructions for different levels of homicide under federal law. See USSG §§ 2A1.1–.5. In the present case, the district court determined that the Government proved second degree murder by a preponderance of the evidence. ² As a result, the district court arrived at the base offense level of thirty-eight. See USSG § 2A1.2.

Tunley first contends that the Government failed to disprove his claim that he shot Wright in self-defense. “In the absence of a conviction for another felony offense, the government must prove by a preponderance of the evidence all of the essential elements of the underlying felony offense, including the absence of any defenses.” Betts, 509 F.3d at 445.

If Tunley had been charged and tried in Missouri, the State of Missouri would have had the burden of proving beyond a reasonable doubt that Tunley did not act in lawful self-defense.³ See Missouri v. Henderson, 311 S.W.3d 411, 414 (Mo.Ct.App.2010); see also Betts, 509 F.3d at 445–46. Missouri Revised Statute section 563.031 “sets forth the parameters for the use of non-deadly and deadly force in self-defense and in defense of others.” State v. Clinch, 335 S.W.3d 579, 586 (Mo.Ct.App.2011). The version of section 563.031 which was in effect on the date that Tunley shot Wright states in pertinent part:

1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person....

2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:

(1) He or she reasonably believes that such deadly force is necessary to protect himself or herself or another against death, serious physical injury, or any forcible felony; or

(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person.

Mo.Rev.Stat. § 563.031.1–2 (2008). Thus, under Missouri law, Tunley would have been justified in using deadly force against Wright if Tunley reasonably believed such force was necessary to defend himself from the use or imminent use of unlawful force by Wright and either: (1) “reasonably believe [d] that such deadly force [was] necessary to protect himself ... against death, serious physical injury, or any forcible felony”; or (2) such force was used against Wright after she unlawfully entered Tunley's residence, remained after unlawfully entering, or attempted to unlawfully enter. See id.

Tunley asserts that the evidence presented to the district court showed that his shooting of Wright was justified as a defense of himself and his home. According to Tunley's testimony at the sentencing hearing, Tunley left his brother's party and went to a nearby park to avoid Wright. While at the park, Tunley received a number of phone calls from Wright, but he ignored them. After Wright stopped calling, Tunley waited approximately five minutes and went home. Tunley testified that once he arrived home, he left the front door open and began to go through the house to determine whether anyone was there. During this sweep, Tunley saw Wright's shadow approaching his front door, and he jogged to the door to prevent her from entering. A tug-of-war resulted over the closed-but-unsecured storm door. Tunley claimed that he held the door closed with his left hand while he called his brother using a cellphone in his right hand. Wright eventually gained entry. According to Tunley, once Wright was inside, she chased Tunley into the bedroom and continued her attack against him. Tunley was kicked by Wright, and he fell to the floor. While he was on the floor, he grabbed a handgun that was under some clothes in his closet, chambered a round, and shot Wright.

The district court rejected Tunley's account of what occurred in the house as lacking credibility. Instead, the trial court found that the evidence showed that Tunley killed Wright with malice aforethought and that his claim of self-defense was a “cover-up.” In its factual findings, the district court noted that Tunley called his brother and a friend minutes before he called 9–1–1. The court discounted Tunley's testimony of a struggle at the front door. Although the court found that the confrontation between Wright and Tunley continued, the court interpreted the evidence as showing that Tunley let Wright into the house, that it “may have been payback time” and that Tunley “knew he had a loaded gun in the house.” In deciding whether the shooting of Wright was murder or manslaughter, the court found that the evidence supported a charge of second degree murder. Specifically, the court concluded that Tunley had the requisite intent to kill Wright when he retrieved the gun, chambered the round, pointed it at Wright, and shot her in the head.

After an independent review of the record, we find no clear error in the district court's factual findings....