[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-13115 ELEVENTH CIRCUIT
APRIL 12, 2006
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00261-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY GAYLE POTTS, II,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(April 12, 2006)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Jimmy Gayle Potts, II, appeals his 30-month sentence for possession of a
firearm after having been convicted of a misdemeanor crime of domestic violence,
in violation of
18 U.S.C. § 922(g)(9). Because the Presentence Investigation
Report (“PSI”) determined that Potts possessed the firearm in connection with the
commission or attempted commission of a domestic violence offense, it set his base
offense level pursuant to U.S.S.G. § 2K2.1(c)(1), cross-referenced to U.S.S.G. §
2X1.1(a), which stated that Potts’s base offense level should be determined by the
guideline for the underlying substantive offense and, thus, was cross-referenced to
U.S.S.G. § 2A6.2(a), the guideline for domestic violence offenses.
On appeal, Potts argues that the district court’s use of the cross-reference
was based upon the determination that he attempted to menace his wife with a
shotgun, but there is no Alabama law recognizing “attempted menacing” or
“attempted harassment.” Furthermore, he contends, he was arrested before he
harassed anyone, and his actions did not rise to the level of an attempt under
Alabama law, which requires an overt act towards the commission of the crime.
Additionally, he contends that the absence of ammunition for the gun indicated that
he did not intend to carry out the threat. Thus, he argues, the district court erred in
determining that he possessed the shotgun in connection with another offense,
namely, domestic violence.
2
We review “the district court's application and interpretation of the
sentencing guidelines under the de novo standard of review, but review[] its
findings of fact for clear error.” United States v. Rhind,
289 F.3d 690, 693 (11th
Cir. 2002). We will not find clear error unless we are “left with a definite and firm
conviction that a mistake has been committed.” United States v. Crawford,
407
F.3d 1174, 1177 (11th Cir. 2005) (internal quotations and citations omitted).
If a defendant used or possessed a firearm in connection with the
commission or attempted commission of another offense, the district court should
use the base offense level for the substantive offense. U.S.S.G. § 2K2.1(c)(1);
U.S.S.G. § 2X1.1. If the underlying substantive offense was domestic violence, the
applicable guideline is U.S.S.G. § 2A6.2. The guidelines also state that, “[i]f an
attempt, decrease by 3 levels, unless. . . the circumstances demonstrate that the
defendant was about to complete all such acts but for apprehension or interruption
by some similar event beyond the defendant's control.” U.S.S.G. § 2X1.1.
Under Alabama law, “[a] person commits domestic violence in the third
degree if the person commits. . . the crime of menacing pursuant to Section
13A-6-23. . . or the crime of harassment pursuant to subsection (a) of Section
13A-11-8; and the victim is a current or former spouse. . . [of] the defendant.”
Ala. Code § 13A-6-132. “A person commits the crime of menacing if, by physical
3
action, he intentionally places or attempts to place another person in fear of
imminent serious physical injury.” Ala. Code § 13A-6-23. The commentary to this
section states that “[t]he classic example [of menacing] is where defendant,
intending to frighten another, points an unloaded gun at him, though not known by
the victim to be so.” Id. Harassment includes “a threat, verbal or nonverbal, made
with the intent to carry out the threat, that would cause a reasonable person who is
the target of the threat to fear for his or her safety.” Ala. Code § 13A-11-8.
Potts contends that there is no Alabama case recognizing “attempted
menacing” or “attempted harassment.” However, the federal sentencing guidelines
approve the cross-reference when the defendant uses the gun in connection with the
“commission or attempted commission” of another offense. U.S.S.G. §
2K2.1(c)(1). In order to prove an attempt in this Circuit, the government “need only
prove (1) that the defendant had the specific intent to engage in the criminal
conduct for which he is charged and (2) that he took a substantial step toward the
commission of the offense.” United States v. Murrell,
368 F.3d 1283, 1286 (11th
Cir. 2004). Alternatively, under Alabama law, “[a] person is guilty of an attempt to
commit a crime if, with the intent to commit a specific offense, he does any overt
act towards the commission of such offense.” Ala. Code § 13A-4-2. The Alabama
Supreme Court had held that an “attempt is complete and punishable, when an act
4
is done with intent to commit the crime, which is adapted to the perpetration of it,
whether the purpose fails by reason of interruption, or for other extrinsic cause. The
act must reach far enough towards the accomplishment of the desired result to
amount to the commencement of consummation.” Ex parte A.T.M.,
804 So.2d 171,
174 (Ala. 2000) (internal quotations and citations omitted).
Upon careful review of the record on appeal, the PSI, and consideration of
the parties’ briefs, we discern no reversible error. The district court could find that
Potts possessed the shotgun “in connection with” an attempt to menace his wife.
Since Potts’s possession of the shotgun was connected to the argument in which he
threatened to get a shotgun to “deal with his wife,” and the police detained him as
he apparently returned home with the gun in his car, the evidence indicates that
only police apprehension prevented Potts from using the unloaded shotgun to
menace his wife. The district court, thus, did not err in using the cross-reference
when sentencing him because Potts possessed the shotgun in connection with an
attempt to commit another offense, namely, domestic violence through criminal
menacing.
Alternatively, Potts possessed the shotgun in connection with the crime of
harassment, which includes “a threat, verbal or nonverbal, made with the intent to
carry out the threat, that would cause a reasonable person who is the target of the
5
threat to fear for his or her safety.” Ala. Code § 13A-11-8. Potts threatened his
wife when he told her he would get a gun to deal with her and her parents. He then
retrieved the gun, which is evidence of his intent to carry out the threat. The gun
was connected to Potts’s threat.
Accordingly, we affirm his sentence.
AFFIRMED.1
1
Potts’s “Motion for Appointment of New Counsel” is DENIED because he cannot show
that his attorney has acted in some way that reflects a conflict of interest.
6
