                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0658n.06

                                            No. 12-6012                                    FILED
                                                                                        Jul 17, 2013
                            UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

       v.                                                ON APPEAL FROM THE UNITED
                                                         STATES DISTRICT COURT FOR THE
CLINTON TURNER,                                          WESTERN DISTRICT OF TENNESSEE

               Defendant-Appellant.



BEFORE: SILER and COLE, Circuit Judges; DOWD, District Judge.*

       PER CURIAM.             Clinton Turner, following his guilty plea to being a felon in possession

of a firearm, successfully challenged his sentence of 120 months. The unpublished opinion of the

Sixth Circuit stated in relevant part as follows:

       The facts, as the district court found them, show that on August 9, 2009 Turner –
       while under the influence of alcohol, prescription medication, and crack cocaine –
       came out of his home wielding a shotgun. There he met his wife, Bonnie Ruffin, and
       two others. Turner fired the shotgun once into the air and then pointed it at Ruffin
       and the others, but did not fire. Another man, James Gates, attempted to wrestle the
       gun away from Turner. In the ensuing struggle, the gun went off and severely injured
       Ruffin. The district court found at sentencing that Turner’s actions were extremely
       reckless, but that Turner did not intend to kill Ruffin (or anyone else).

       . . . His presentence investigation report calculated a base offense level of 33 based
       on a cross reference to attempted first-degree murder under § 2A2.1(a)(1) of the
       Guidelines. The district court rejected that cross reference in light of its finding that
       Turner did not intend to kill Ruffin. At the government’s urging, however, the court

       *
        The Honorable David D. Dowd, Jr., United States District Court for the Northern District
of Ohio, sitting by designation.
No. 12-6012, United States v. Turner

       applied a cross reference to attempted second-degree murder under § 2A2.1(a)(2), on
       the theory that Turner acted with a depraved heart.

       The government has since changed its mind, conceding that Turner should not have
       received the cross reference to § 2A2.1(a)(2). The government is correct . . . .

       The erroneous cross reference caused the district court to miscalculate Turner’s
       Guidelines range, which in turn makes his sentence procedurally unreasonable. See
       Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Thus,
       we vacate Turner’s sentence and remand for re-sentencing.

       United States v. Turner, 436 F. App’x 631, 631 (6th Cir. 2011).

       On remand, Turner’s sentence was reduced to 90 months. Turner’s second appellate

challenge is without merit. Our analysis follows.

       Upon remand, the district court applied Sentencing Guidelines for § 2A2.2 for aggravated

assault and relied upon Application Note 1 with respect to definitions which state:

       “Aggravated assault” means a felonious assault that involved (A) a dangerous
       weapon with intent to cause bodily injury (i.e., not merely to frighten) with that
       weapon; (B) serious bodily injury; or (C) an intent to commit another felony.

       (Emphasis added.)

       In re-sentencing the defendant, the district court, over objections of defendant’s counsel,

applied § 2A2.2 dealing with aggravated assault and applied the above-described definition of

aggravated assault and determined that the felonious assault involved (B) serious bodily injury.

       We generally review the district court’s interpretation of the Sentencing Guidelines de novo

and its factual findings for clear error. United States v. Corp, 668 F.3d 379, 386 (6th Cir. 2012)

(citation omitted). “If a defendant fails to raise an objection before the district court, however, our

review is only for plain error.” Id.



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No. 12-6012, United States v. Turner

        On appeal, counsel for the defendant contends that the reference to aggravated assault is

inappropriate because the defendant did not intend to cause serious bodily injury. Counsel for

Turner relies upon the declaration of the district court that Turner did not intend to cause serious

bodily injury to his wife. However, § 2A2.2 does not require intent to cause serious bodily injury.

See United States v. Garcia-Camacho, 122 F.3d 1265, 1268 (9th Cir. 1997).

        The second issue raised by Turner is that his conduct, as opposed to the conduct of Gates,

did not constitute aggravated assault because his felonious assault did not involve serious bodily

injury. Turner raises this issue for the first time on appeal, so we review it for plain error. See Corp,

668 F.3d at 386. In so arguing, counsel for Turner contends that the discharge of his weapon was

connected to the alleged subsequent Gates assault and argues that there were two separate instances.

The district court found to the contrary and applied the definition of aggravated assault involving

serious bodily injury.1


        1
         During the first sentencing hearing, the district court, in reviewing the evidence with respect
to the shooting declared:
        What happened next is that Mr. Gates decided he needed to protect himself and that
        he might be shot. Everyone on the scene knew that the shotgun was loaded. Ms.
        Ruffin testified that she had seen Mr. Turner reload the weapon. He was – actually,
        the way she talked about the gun, he was waving the gun as he came across the yard
        at the three of them and appeared angry, but he didn’t go back to the house. He
        actually came at them with a gun.

        So Mr. Gates decided to protect himself. He did so. He attempted to get the gun
        away is my reading of the record. He waited for Mr. Turner to approach closely
        enough; and he, Mr. Gates, grabbed the barrel of the shotgun and tried to get behind
        the defendant. He attempted to pin the gun to the defendant’s chest. He – they ended
        up struggling to the ground and Mr. Gates struck the defendant from behind on the
        side of his face. Mr. Gates never had control of the trigger of the gun. It appears
        that Mr. Turner continued to have control of the trigger of the gun.


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No. 12-6012, United States v. Turner

       We agree with the district court that the underlying aggravated assault did cause serious

bodily injury and the issue of whether Turner intended to cause serious bodily injury to his wife is

not relevant.

       Consequently, we affirm the sentence of the district court.




       ...

       What happened is there was a struggle that included a struggle over the gun. The gun
       at some point was cocked, and it was either cocked before the struggle or while the
       struggle was going on. It was cocked by the defendant, and the only logical inference
       from the proof is that the defendant had his finger on the trigger and fired the gun.
       In other words, the gun went off because the defendant had his finger on the trigger.
       In the course of the struggle, the cocked gun fired. Mr. Gates did not have his finger
       there.


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