United States v. Brooks

United States v. Brooks, 67 F.4th 1244 (10th Cir. 2023) (finding of malice aforethought mens rea does not warrant application of the attempted murder guidelines cross reference) Mr. Brooks was convicted by a jury of unlawful possession of ammunition. He allegedly “shot a firearm at a car his then-girlfriend was riding in, striking her in the buttocks.” At sentencing, over objection, the district court applied the cross-reference to the attempted murder guideline, U.S.S.G. § 2A2.1. The district court also heightened his base-offense level under U.S.S.G. § 2K2.1 (without objection) based on the assumption that Oklahoma aggravated assault and is a crime of violence. On appeal, Mr. Brooks argued that 1) the attempted murder cross-reference did not apply because evidence did not establish specific intent and 2) the § 2K2.1 enhancement could not apply under the Tenth Circuit’s recent decision clarifying that Oklahoma aggravated assault and battery is not a crime of violence. U.S.S.G. § 2A2.1 The guideline for possession of ammunition, § 2K2.1, instructs court to cross-reference § 2X1.1 if the defendant use or possessed ammunition in connection with the commission or attempted commission of another offense. Section 2X1.1, in turn, instructs courts to apply the base offenses level from the guideline for that other offense. Here, the district court applied the base offense level set forth at § 2A2.1, which pertains to assault with intent to commit murder or attempted murder. Though Mr. Brooks argued that there was no evidence to establish specific intent to kill, as required for attempted murder, the district court concluded that application of the cross-reference was appropriate because evidence established the necessary intent for second-degree murder (malice aforethought). The Tenth Circuit agreed that malice aforethought was not sufficient for application of the attempted murder cross-reference, because conviction for an attempt requires specific intent to kill. The government argued that the record supported a finding of premeditation, so it supported application of the cross-reference based on attempted first degree murder. In a rare turn of events, the Tenth Circuit saw right through it. The Tenth Circuit sagely reminds us that “the only way to know whether, absent the error, the district court would have imposed the same sentence is if the district court indicated at sentencing that the sentence imposed would be the same under multiple sentencing approaches, one of which was the correct approach.” The district court did not do this. Oklahoma Agg Assault & Battery In United States v. Winrow, 49 F.4th 1372 (10th Cir. 2022), after Mr. Brooks was sentenced, the Tenth Circuit resoundingly declared that Oklahoma Aggravated Assault and Battery is not a crime of violence under the ACCA. Because the law at the time of the appeal was clear, the Tenth Circuit held that the district court’s error was plain, meeting the first and second prongs of the test for reversal under plain error review. Sadly, however, the Tenth Circuit did not feel confident that the third and fourth prongs were met because there were too many hypotheticals in determining what the sentence would have been without the error. Specifically, the court was not certain whether the district court would in fact find, on remand, that the defendant did not have the required intent for the cross reference discussed above, or whether cross-reference to another offense would enhance the base offense level so that this error would not, in fact, have an impact on sentencing. Thus, the district court vacated the sentence and remanded for resentencing based on its clarification of the intent requirement for attempted second degree murder. It instructed the district court to consider the impact of Winrow “if it becomes relevant to its guideline calculations.”