United States v. Reid ( 2023 )


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  •    22-1279
    United States v. Reid
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
    CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
    PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
    32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
    IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
    FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
    “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
    COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
    City of New York, on the 7th day of December, two thousand twenty-three.
    PRESENT:
    REENA RAGGI,
    RICHARD J. SULLIVAN,
    EUNICE C. LEE,
    Circuit Judges.
    _____________________________________
    UNITED STATES OF AMERICA,
    Appellee,
    v.                                      No. 22-1279
    JAMARRI REID,
    Defendant-Appellant.
    _____________________________________
    For Defendant-Appellant:              MEGAN W. BENETT, New York, NY.
    For Appellee:                         CHRISTOPHER J. CLORE (Olga I. Zverovich, on
    the brief), Assistant United States Attorneys,
    for Damian Williams, United States
    Attorney for the Southern District of New
    York, New York, NY.
    Appeal from a judgment of the United States District Court for the Southern
    District of New York (John P. Cronan, Judge).
    UPON      DUE    CONSIDERATION,           IT   IS   HEREBY       ORDERED,
    ADJUDGED, AND DECREED that the June 1, 2022 judgment of the district court
    is AFFIRMED.
    Jamarri Reid appeals from a judgment of conviction following his guilty
    plea to unlawfully possessing ammunition as a felon, in violation of 
    18 U.S.C. § 922
    (g)(1). The district court sentenced Reid principally to a term of ninety-two
    months’ imprisonment to be followed by three years’ supervised release. Reid’s
    sole argument on appeal is that his sentence was procedurally unreasonable
    because the district court improperly applied an enhancement under the
    Sentencing Guidelines based on its finding that Reid had a specific intent to kill
    while in illegal possession of ammunition. We assume the parties’ familiarity with
    the underlying facts, procedural history, and issues on appeal.
    In reviewing “a district court’s application of the Guidelines to the specific
    facts of a case,” this Court follows an “either/or approach, adopting a de novo
    standard of review when the district court’s application determination was
    primarily legal in nature, and adopting a clear[-]error approach when the
    determination was primarily factual.” United States v. Gotti, 
    459 F.3d 296
    , 349
    (2d Cir. 2006) (internal quotation marks omitted). 1 The government bears the
    burden of proving, by a preponderance of the evidence, all facts relevant to the
    Guidelines calculation used at sentencing. See United States v. Concepcion, 
    983 F.2d 369
    , 388 (2d Cir. 1992).
    It is undisputed that Reid was a convicted felon who, by discharging a
    loaded firearm, unlawfully possessed ammunition in violation of section 922(g).
    For purposes of calculating his sentencing range, the district court properly turned
    to section 2K2.1 of the Guidelines – the provision that ordinarily covers violations
    of section 922(g). But section 2K2.1 contains a cross-reference that increases the
    applicable base offense level where a defendant used or possessed ammunition
    1Reid argues that we should review de novo the district court’s application of U.S.S.G. § 2K2.1,
    which provided that the court should determine Reid’s base offense level using U.S.S.G.
    § 2A2.1(a)(2). We need not decide whether de novo or clear-error review applies, however,
    because even under de novo review, the result would be the same. See United States v. Rodriguez,
    
    738 F. App’x 729
    , 730 (2d Cir. 2018) (adopting same approach).
    3
    “in connection with the commission or attempted commission of another offense.”
    U.S.S.G. § 2K2.1(c)(1)(A). In those situations, courts are directed to apply section
    2X1.1 “in respect to that other offense, if the resulting offense level is greater than
    that determined” under section 2K2.1. Id. § 2K2.1(c)(1)(A). In turn, section 2X1.1
    provides that, “[w]hen an attempt, solicitation, or conspiracy is expressly covered
    by another offense guideline section,” courts must “apply that guideline section.”
    Id. § 2X1.1(c)(1).
    Reid does not challenge the relevance of these Guidelines provisions or their
    application to his case. He simply argues that the district court erred by applying
    the Guideline section for attempted murder, see id. § 2A2.1(a)(2), rather than the
    section for aggravated assault, see id. § 2A2.2, since there was insufficient evidence
    that Reid acted with a specific intent to kill the victim. We disagree.
    Murder is defined as “the unlawful killing of a human being with malice
    aforethought.” 
    18 U.S.C. § 1111
    (a); see also U.S.S.G. § 2A2.1, cmt. n.1. First-degree
    murder is murder that is premeditated, or committed by certain means or during
    the course of particular felonies, whereas “[a]ny other murder is murder in the
    second degree.” 
    18 U.S.C. § 1111
    (a). Attempted murder “requires a specific intent
    to kill,” Braxton v. United States, 
    500 U.S. 344
    , 351 n.* (1991) (internal quotation
    4
    marks omitted), and “conduct amounting to a ‘substantial step’ towards the
    commission of the crime,” United States v. Martinez, 
    775 F.2d 31
    , 35 (2d Cir. 1985).
    “[C]riminal intent may be proven by circumstantial evidence.” United States v.
    Nelson, 
    277 F.3d 164
    , 197 (2d Cir. 2002).
    Here, undisputed evidence adequately supported the district court’s
    finding that Reid fired his gun at the victim with a specific intent to kill, as required
    under section 2A2.1(a)(2) and our precedents. Specifically, the district court found
    at sentencing that Reid and the victim “had an argument . . . shortly before the
    shooting”; that Reid approached the victim about six minutes after the argument
    with “a gun in his possession”; that, after walking “a few steps” with the victim,
    Reid “took out that gun and fired in very close range to his victim”; and that, after
    firing his gun, Reid “chas[ed] his target as the target fled[,] with the gun still
    pointed at the target.” App’x at 147–49. Upon review of the record, we conclude
    that the district court did not err in making these findings, because each of these
    facts was presented in the presentence investigation report and the shooting was
    captured by surveillance video. Moreover, Reid does not dispute any of these facts
    on appeal.
    5
    Reid argues instead that he could not have had the specific intent to kill
    because “there was no proof of a motive for [Reid] to kill” and “only a single shot
    was discharged,” which did not hit the victim. Reid Br. at 13. The argument fails
    because there was evidence of motive – specifically, the victim told police
    investigators that he had argued with Reid minutes before the shooting. But,
    regardless, motive is not an element of attempted murder, and the absence of
    motive evidence does not preclude a finding that a defendant had a specific intent
    to kill. See United States v. Martinez, 
    775 F.2d 31
    , 35–36 (2d Cir. 1985). Further, Reid
    has cited no legal authority for the proposition that only the firing of multiple shots
    at an intended victim permits an inference of specific intent to kill, and we are
    aware of none ourselves. Cf. United States v. Grant, 
    15 F.4th 452
    , 456, 458 (6th Cir.
    2021) (affirming the application of section 2A2.1(a)(2) where the defendant fired
    one shot at the victim given the backdrop of the other evidence). Accordingly, we
    identify no error in the district court’s finding that the facts in this case, viewed in
    totality, established by a preponderance of the evidence that Reid had a specific
    intent to kill the victim.
    6
    We have considered Reid’s remaining arguments and find them to be
    without merit. Accordingly, we AFFIRM the judgment of the district court.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk of Court
    7
    

Document Info

Docket Number: 22-1279

Filed Date: 12/7/2023

Precedential Status: Non-Precedential

Modified Date: 12/7/2023