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

(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,

(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,

(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,

, 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.”

(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.”

(a). Attempted murder “requires a specific intent

to kill,” Braxton v. United States,

, 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,

(2d Cir. 1985).

“[C]riminal intent may be proven by circumstantial evidence.” United States v.

Nelson,

(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,

, 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,

(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

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