                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4662


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

OTIS EUGENE BURNS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00120-CCE-1)


Argued:   December 11, 2014                 Decided:   February 13, 2015


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Gregory joined.


ARGUED: Sophia L. Harvey, LIAO HARVEY PC, Winston-Salem, North
Carolina, for Appellant. Graham Tod Green, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.    ON
BRIEF: Ripley Rand, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
DUNCAN, Circuit Judge:

     Otis    Eugene      Burns   pleaded   guilty    to   being     a   felon      in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2).        The district court found that he had used the

firearm in an attempted murder, and therefore applied the United

States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range

for attempted murder to determine his sentence.                   Burns disputed

that he had the requisite mens rea for attempted murder and

argued that the Guidelines range for aggravated assault should

have applied to his offense instead.                Because Burns made this

argument, the district court denied him a downward adjustment

for acceptance of responsibility.           Burns appeals from the denial

of   the    acceptance-of-responsibility        reduction,         arguing        that

because he admitted to the offense of conviction--being a felon

in possession of a firearm--and also to his physical conduct in

discharging      that    firearm   into    an   occupied        vehicle,     he    is

entitled    to    that    downward   adjustment.          For     the   following

reasons, we affirm.



                                      I.

     On February 1, 2013, Burns was involved in an altercation

with Eric Poole at a convenience store.             Later that night, Burns

went to the apartment of Poole’s ex-girlfriend, Breanna Tarlton,

and asked where he could find Poole.                Burns yelled at Tarlton

                                       2
and fired a shot into the air with a Rossi .357 caliber handgun

before leaving her apartment.           Brittney Wilson, Burns’s fiancée,

provided a statement that the next day--on February 2, 2013--

Burns told her he wanted “to kill” Poole for “jumping him at the

store.”    J.A. 107–08, ¶5.

      After       reportedly   making      these     comments    to    Wilson     on

February 2nd, Burns was in his parked car when he saw Poole in

the driver’s seat of a car in which Tarlton and three other

passengers were also sitting.           Wilson testified that she was in

Burns’s car at that time, and that she heard Burns tell Poole

the following: “You thought that was funny from last night, what

happened, what you did at the store.                I told you I was going to

shoot     you.”      J.A.    53.     She       further   testified    that     Burns

initially left his car but then returned to retrieve his gun,

and at that time he said to her, “I’m going to shoot him.”                      J.A.

54–55.      She also recalled telling the police that Burns told

Poole, “Motherfucker, I’m going to kill you.”                   J.A. 57.       Under

cross-examination,          Wilson   testified        that   her      window     was

partially open and that while Burns was walking toward Poole’s

car, he said, “I’m going to shoot that motherfucker.”                    J.A. 60–

61.

      After Tarlton exited Poole’s car from the front passenger

seat, Burns stood next to the open passenger door and fired one

shot into the car--still occupied by Poole in the driver’s seat

                                           3
and at least one other person in the back seat 1--but no one was

injured. 2      Poole left in his vehicle.                Burns initially drove in

pursuit of Poole, firing a round into the air, but eventually

broke off the pursuit.

        A week later, on February 9, 2013, local law enforcement

officers arrested Burns after finding him in a vehicle with a

loaded .357 caliber handgun.            A federal grand jury charged Burns

with being a felon in possession of a firearm from “on or about

February 1, 2013,” to “on or about February 9, 2013.”                        J.A. 6.

Burns       pleaded    guilty     pursuant       to   a   written   plea   agreement.

Under the terms of the agreement, if the district court found

Burns       eligible    for   a   two-level       reduction     for   acceptance   of

responsibility under U.S.S.G. § 3E1.1(a), and if Burns’s total

offense level was 16 or higher prior to that reduction, then the

United States would recommend an additional one-level reduction

pursuant to § 3E1.1(b) for timely assisting authorities in the

investigation.




        1
       It is unclear from the record how many of the three people
originally in the back seat, if any, exited the car prior to the
shooting.
        2
        A police detective testified that the bullet passed
downward over the center console, through the right front corner
of the driver’s seat underneath the knee area, and into the
floorboard.


                                             4
        The Presentence Investigation Report (“PSR”) recommended a

base offense level of 27 after applying a “cross reference”--

i.e.,       “an    instruction       to     apply       another      offense       guideline,”

U.S.S.G. § 1B1.5(a)--to the guideline for attempted murder based

upon    the       shooting.        The     PSR    also       recommended      a    three-level

reduction         for    acceptance       of     responsibility--two           levels        under

§ 3E1.1(a)         and    the    additional       level,       referenced         in   the    plea

agreement,         under       § 3E1.1(b).            With    that       reduction,     Burns’s

offense       level      would    have     been       24,     which,      coupled      with    his

criminal       history         category     of    V,     would       have    resulted        in   a

Guidelines range of 92 to 115 months’ imprisonment.

       Burns objected to the PSR, arguing that the evidence did

not support the cross reference to attempted murder and that the

court should instead cross-reference aggravated assault, which

would have resulted in a Guidelines range of 70 to 87 months.

The     government         responded           that     the     attempted-murder             cross

reference         was    appropriate       and    that       Burns’s      objections     denied

relevant          conduct,       thereby       making        him     ineligible        for    the

acceptance-of-responsibility reduction.

       At     sentencing,        Burns     challenged         Wilson’s       statements       and

argued that the downward trajectory of the bullet showed that he

intended not to cause Poole bodily harm, but instead to shoot

into the empty passenger seat--“in essence, to give a warning

shot.”        J.A.       73.      After     considering            the    bullet’s     downward

                                                 5
trajectory and Burns’s arguments, the district court concluded

that, “taken . . . together with the language used, as testified

to by Ms. Wilson, and the conduct the night before[,] . . . the

evidence of . . . attempted second-degree murder is very, very,

very, very strong.”        J.A. 77.         The court further concluded that

Burns     had    falsely   denied      relevant            conduct,    and   therefore

declined to give Burns a three-level reduction for acceptance of

responsibility.        Based on those findings, the court determined

that Burns’s total offense level was 27.                       Coupled with Burns’s

criminal history category of V, this offense level resulted in a

Guidelines recommendation of 120 to 150 months’ imprisonment.

See U.S.S.G. ch. 5, pt. A (2012).                       The statutory maximum for

Burns’s offense of conviction was 120 months’ imprisonment.                           See

18 U.S.C. § 924(a)(2).          After hearing argument from counsel on

the   appropriate      sentence,      the       court      sentenced   Burns    to   120

months’ imprisonment.       Burns timely appealed.



                                        II.

        Before   turning   to   the    merits         of    this   appeal,     we   first

provide an overview of the relevant Guidelines sections and the

district court’s application of those sections.                          The section

applicable       to   Burns’s   offense          of     conviction,     possessing      a

firearm as a felon, is U.S.S.G § 2K2.1.                      The base offense level

under    that    section   ranges     from       6    to    26,    depending    on   the

                                            6
circumstances.         U.S.S.G. § 2K2.1(a).              However, when a felon in

possession of a firearm uses that firearm in connection with

another offense, the sentencing judge should also determine the

base    offense       level    for   that       other    offense.       See    U.S.S.G.

§ 2K2.1(c)(1).         If the offense level for that other offense is

higher than the offense level under § 2K2.1, then the court must

apply the offense level for that other offense, thereby cross-

referencing it to determine the ultimate sentence.                      See id.

       Here, the district court first determined that Burns’s base

offense    level       under    § 2K2.1     was         24.    Then,       because    the

government had shown by a preponderance of the evidence that

Burns committed attempted murder with the firearm, the court

calculated the base offense level for attempted murder.                                Cf.

United    States      v.   Davis,    679    F.3d    177,      182   (4th    Cir.     2012)

(“[T]he Government has the burden to prove a cross-referenced

offense    by     a    preponderance       of    the     evidence    under     U.S.S.G.

§ 2K2.1(c)(1)(A).”).            Under subsection (a)(2) of the guideline

for    attempted      murder,    U.S.S.G.       § 2A2.1,      Burns’s   base    offense

level was 27.           Because Burns’s base offense level was higher

under the attempted-murder guideline (27) than under the felon-

in-possession guideline (24), the court cross-referenced to the

attempted-murder guideline, applying the base offense level of

27.



                                            7
     U.S.S.G.   § 3E1.1    governs    whether    Burns   could    receive    a

downward adjustment for acceptance of responsibility from his

base offense level of 27.     That section instructs the sentencing

judge to decrease the defendant’s offense level by two if he

“clearly    demonstrates   acceptance     of     responsibility    for    his

offense,” U.S.S.G. § 3E1.1(a), and to decrease it by one more

level on motion by the government if his offense level prior to

the two-level reduction was 16 or higher, U.S.S.G. § 3E1.1(b).

     The    commentary     provides      a      non-exclusive     list      of

“appropriate considerations” to determine whether a defendant is

entitled to an acceptance-of-responsibility reduction.             U.S.S.G.

§ 3E1.1 cmt. n.1.   Only the first is relevant here:

     (A) truthfully admitting the conduct comprising the
     offense(s) of conviction, and truthfully admitting or
     not falsely denying any additional relevant conduct
     for which the defendant is accountable under § 1B1.3
     (Relevant Conduct). . . .    [A] defendant who falsely
     denies, or frivolously contests, relevant conduct that
     the court determines to be true has acted in a manner
     inconsistent with acceptance of responsibility.

U.S.S.G. § 3E1.1 cmt. n.1(A) (emphasis added).

     In § 1B1.3--“Relevant Conduct (Factors That Determine the

Guideline   Range)”--the   Guidelines    provide     that   the   bases   for

cross references under Chapter Two and adjustments under Chapter

Three include “all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by

the defendant . . . that occurred during the commission of the


                                     8
offense of conviction.”         U.S.S.G. § 1B1.3(a)(1)(A).                Therefore,

“all acts and omissions” in connection with which Burns used the

firearm    are    relevant    conduct      under    §    1B1.3(a).        And     under

§ 3E1.1    cmt.   n.1(A),     falsely      denying       any   of    those   acts   or

omissions is inconsistent with acceptance of responsibility and

would     support    denial     of      the      acceptance-of-responsibility

reduction.



                                       III.

     With the preceding Guidelines provisions in mind, we now

turn to the merits of this appeal.                 In response to our order,

the parties briefed the following question: “By disputing that

he possessed the mental state necessary to commit the cross-

referenced (but uncharged) offense of attempted murder, did the

appellant    dispute   ‘relevant       conduct’      such      that    the   district

court     properly     denied        him       credit      for       acceptance     of

responsibility?”       Order, May 1, 2014, ECF No. 26.                       In other

words, is acting with a particular mental state relevant conduct

within the meaning of U.S.S.G. 1B1.3(a)(1)(A)?                      We hold that the

answer to both questions is yes.

     Appellant      argues   that    he    did     not    deny   relevant     conduct

because he admitted performing the physical act of shooting the




                                           9
gun into the occupied vehicle, 3 albeit while still disputing that

he intended to kill Poole.             Therefore, Appellant argues, the

district     court     erred    by     denying    him   an   acceptance-of-

responsibility reduction.       We disagree.

                                       A.

      We    review    the   district    court’s    interpretation   of    “the

meaning and legal components of the term ‘relevant conduct’” de

novo, United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014),

and   its    acceptance-of-responsibility         determination   for    clear

error, United States v. Dugger, 485 F.3d 236, 239 (4th Cir.

2007).

                                       B.

      When Burns disputed that he acted with the intent to kill,

he denied “relevant conduct for which [he] is accountable under

[U.S.S.G.] § 1B1.3.”        U.S.S.G. § 3E1.1 cmt. n.1(A).         He thereby

jeopardized     his     claim    to     an   acceptance-of-responsibility

reduction. 4    Our analysis is complicated by the fact that the


      3
       Burns’s counsel acknowledged at oral argument that the
physical act of shooting was relevant conduct. See Oral Arg. at
5:40–6:10, United States v. Burns, No. 13-4662 (4th Cir. Dec.
11, 2014), available at http://coop.ca4.uscourts.gov/OAarchive
/mp3/13-4662-20141211.mp3.
      4
       We do not suggest that there is no avenue for challenging
the application of a cross reference without jeopardizing a
reduction for acceptance. A district court might well find that
a defendant who admits to conduct underlying a cross reference,
but disputes its legal significance, has nevertheless acted in a
(continued)
                                       10
Guidelines     do   not    define     “relevant      conduct”     in    terms    of   an

“offense.”          Rather,       § 1B1.3(a)      provides       that,        “[u]nless

otherwise      specified, . . . cross           references      in     Chapter   Two[]

and . . . adjustments in Chapter Three[] shall be determined on

the   basis     of,”      among    other     factors,     “acts        and    omissions

committed . . . by the defendant,” U.S.S.G. § 1B1.3(a)(1)(A)

(emphasis added).

      Burns extrapolates from this language that relevant conduct

encompasses      only      physical      acts.        While      not     lacking      in

superficial appeal, this argument ultimately proves untenable.

The   “acts”    referred     to   must     include    more    than     just    physical

movement.      Otherwise, it would be impossible to cross-reference

crimes of      attempt,     which,    by    definition,      include     a    mens    rea

element.       See, e.g., Martin v. Taylor, 857 F.2d 958, 961 (4th

Cir. 1988) (noting that “[a]n attempt crime requires specific

intent to commit a crime”).                Yet, we have held that the “acts

and omissions” provision provides a sufficient basis for cross

references to crimes of attempt.                For example, in United States

v. Ashford, we held that “the district court properly imposed a

cross reference pursuant to USSG § 1B1.3(a)(1)” to “attempted

second-degree murder.”            718 F.3d 377, 383 (4th Cir. 2013); see



manner consistent with acceptance of responsibility.                             As   we
explain, however, Mr. Burns disputes the conduct itself.


                                           11
also       id.    (holding      that     U.S.S.G.      § 1B1.3(a)(1)       prescribes

“sufficient conditions for relevant conduct”); cf. United States

v. Sealey, 203 F. App’x 487, 490 (4th Cir. 2006) (per curiam)

(affirming        a    cross   reference       to   attempted     murder   where   the

defendant was aware that his conduct created a serious risk of

death); United States v. Rice, 3 F. App’x 64, 67 (4th Cir. 2001)

(per curiam) (affirming a cross reference to attempted sexual

abuse based upon the motivation behind the defendant’s attempted

kidnapping).

       Given that the “acts and omissions” referenced in U.S.S.G.

§ 1B1.3(a)(1) can form the basis for the cited cross references,

those      acts       and   omissions    necessarily     incorporate       mens    rea.

Accordingly, when Burns denied that his “acts and omissions”

included shooting with the intent to kill, he denied relevant

conduct attributable to him. 5                 Because falsely denying relevant

conduct      is   “inconsistent         with    acceptance   of    responsibility,”


       5
       Indeed, in a different context, this court has held that
the term “conduct” in the Guidelines encompasses mens rea.   On
that basis, we affirmed the denial of an acceptance-of-
responsibility reduction when a defendant disputed a mens rea
element of the offense of conviction while admitting to the
physical act.    See, e.g., United States v. Castner, 50 F.3d
1267, 1279–80 (4th Cir. 1995) (“Intent is an essential element
of major fraud against the United States . . . .      Thus, the
district court did not err in refusing to adjust downward when
[the defendant], by denying his intent to defraud, did not
completely accept responsibility for all of his criminal
conduct.”).


                                               12
U.S.S.G. § 3E1.1 cmt. n.1(A), the district court did not err by

denying Burns a three-level reduction.             Accord United States v.

Pauley, 289 F.3d 254, 261 (4th Cir.), modified on reh’g on other

grounds, 304 F.3d 335 (4th Cir. 2002) (noting that the defendant

“failed   to   demonstrate        his   entitlement     to   a   reduction      for

acceptance of responsibility” because, among other reasons, “he

continue[d]    to   deny    his    culpability    for    the     execution-style

double murder of [two people by] asserting that the death of

[one victim] was the result of an accidental firing”).



                                        IV.

     Accordingly,     for   the     foregoing    reasons,      the   judgment    of

district court is

                                                                       AFFIRMED.




                                        13
