United States v. Jollie Rocky Allen Smith, III , 997 F.2d 396 ( 1993 )

PER CURIAM,

in which JOHN R. GIBSON and WOLLMAN, Circuit Judges, concur.

Jollie Rocky Alen Smith, III, appeals the fifty-seven-month prison sentence imposed on him by the district court¹ after he was convicted of being a felon in possession of a firearm, under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We affirm.

The evidence at trial revealed that, in a Missouri state court in 1984, Smith was convicted of stealing and was sentenced to five years imprisonment. In February 1990, Jim Hall gave Smith a Taurus nine millimeter automatic pistol. Other individuals later saw the pistol in Smith’s house. Several witnesses testified that, on June 30, 1991, Smith went to the place where Dennis Simkins was camping, and shot and wounded Simkins with the Taurus pistol.

Using the version of the Guidelines in effect at the time of Smith’s offense, the Pre-sentence Report (PSR) applied a cross-referencing provision and set Smith’s base offense level at 15, based on the applicable Guideline for aggravated assault. See U.S.S.G. §§ 2K2.1(c)(2), 2X1.1, 2A2.2 (1990). The PSR increased Smith’s offense level by five for discharging the firearm, and by four more for causing Simkins serious bodily injury. See U.S.S.G. § 2A2.2(b)(2)(A), (b)(3)(B). Smith objected to the PSR’s use of the cross-referencing provision, and the district court overruled the objection.

On appeal, Smith challenges the district court’s cross-reference to section 2X1.1. He argues that the court violated his constitutional rights to due process and to a jury trial by applying the sentencing provisions for aggravated assault—a crime with which he had not been charged. Smith notes that section 2X1.1 was amended on November 1, 1991, before he was sentenced. He argues that the section should not have been applied to him because the amended version contains language which requires a conviction for aggravated assault.²

This court previously upheld a district court’s cross-reference from section 2K2.1 to the aggravated assault Guideline. United States v. Shinners, 892 F.2d 742, 743 (8th Cir.1989) (per curiam). Smith (unlike Shinners) raises a constitutional question, but we conclude the district court did not violate Smith’s constitutional rights. A district court’s consideration of uncharged conduct in sentencing does not violate a defendant’s constitutional rights if the government proves such conduct by a preponderance of the evidence. United States v. Galloway, 976 F.2d 414, 422-25 (8th Cir.1992) (en banc) (because defendant’s uncharged crimes are treated as sentencing factors, rights to indictment, jury trial, and proof beyond reasonable doubt do not come into play), cert. denied, — U.S. -, 113 S.Ct. 1420, 122 L.Ed.2d 790 (1993). Here, the government proved the aggravated assault by a preponderance of the evidence at trial.

Although the specific issue in Galloway was whether the relevant-conduct Guideline (U.S.S.G. § 1B1.3) was constitutional, the same analysis applies to the consideration of the constitutionality of the cross-referencing provision. The relevant-conduct Guideline and the cross-referencing provision similarly allow the district court to consider uncharged conduct in determining the defendant’s offense level. See United States v. Humphries, 961 F.2d 1421, 1422-23 (9th Cir.1992) (per curiam) (upholding as constitutional district court’s cross-reference to sections 2X1.1 and 2A2.2, even though defendant had been charged only with being a felon in possession of firearm).

We reject Smith’s argument that, under the 1991 amendment, a prerequisite for applying section 2X1.1 to him is a conviction for aggravated assault. The commentary to the 1991 version of section 2X1.1 requires the use of the Guideline applicable to the substantive offense that the defendant was “convicted” of attempting, soliciting or conspiring to commit. Section 2X1.1, comment, (n. 2) (1991). We conclude, however, that, when read in context, this commentary applies only if section 2X1.1 is applied directly, rather than as a cross-reference from section 2K2.1. The cross-reference provision contains no language requiring that the defendant be convicted of the other offense. See U.S.S.G. § 2K2.1(c)(l)(A) (1991) (“If the defendant used or possessed any firearm ... in connection with the commission or attempted commission of another offense ... apply ... § 2X1.1 ... in respect to that other offense”).

Accordingly, we affirm.

1 . The Honorable George Howard, Jr., United States District Judge for the Eastern District of Arkansas.

2 . The commentary to the amended version states in part: " 'Substantive offense,’ as used in this guideline, means the offense that the defendant was convicted of soliciting, attempting, or conspiring to commit. Under § 2X1.1(a), the base offense level will be the same as that for the substantive offense.” U.S.S.G. § 2X1.1, comment. (n. 2) (1991) (emphasis added).