United States v. Bell ( 2023 )

Case: 23-50168 Document: 00516964556 Page: 1 Date Filed: 11/13/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50168
Summary Calendar FILED
____________ November 13, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Jevon Bell,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CR-215-1
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Jevon Bell appeals the sentence imposed for his guilty plea conviction
for being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2). The district court applied a cross-reference, under
U.S.S.G. § 2K2.1(c), to the guideline for attempted first degree murder
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50168 Document: 00516964556 Page: 2 Date Filed: 11/13/2023
No. 23-50168
under U.S.S.G. § 2A2.1(a)(1), and assessed a base offense level of 33. Bell
was sentenced to a statutory maximum term of 120 months of imprisonment.
Bell argues that the district court erred by applying the cross-reference
because the Government failed to make the requisite showing that he had the
specific intent to kill. He does not dispute that, after getting in a physical
altercation with his ex-girlfriend and beginning to drive away, he returned to
the residence and began shooting a handgun in her general direction. Several
shots hit the vehicle Bell’s ex-girlfriend was hiding behind.
“This court reviews a district court’s factual findings during
sentencing for clear error and its interpretation of the Sentencing Guidelines,
including its application of the cross-reference provisions of § 2K2.1(c), de
novo.” United States v. Hicks, 389 F.3d 514, 529 (5th Cir. 2004). “[F]acts
relevant to sentencing must be proven by a preponderance of the evidence.”
United States v. Alfaro, 30 F.4th 514, 518 (5th Cir. 2022).
Having reviewed the record, the parties’ arguments, and the
applicable law, we conclude that Bell has shown no error. See, e.g. United
States v. Shaw, 701 F.2d 367, 392 n.20 (5th Cir. 1983) (abrogation on other
grounds by recognized by United States v. Burden, 964 F.3d 339, 345 (5th Cir.
2020); see also United States v. Lemus-Gonzalez, 563 F.3d 88, 92 (5th Cir.
2009) (discussing the three distinct mental states encompassed by “malice
aforethought.”)
The judgment of the district court is AFFIRMED.
2