                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0808n.06

                                          No. 15-5519

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                             Dec 10, 2015
UNITED STATES OF AMERICA,                               )                DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
                                                               ON APPEAL FROM THE
              v.                                        )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE WESTERN
COURTNEY SIMMONS,                                       )
                                                               DISTRICT OF TENNESSEE
                                                        )
       Defendant-Appellant.                             )
                                                        )



BEFORE: BATCHELDER and GRIFFIN, Circuit Judges; and CARR, District Judge.*

       GRIFFIN, Circuit Judge.

       Defendant Courtney Simmons pleaded guilty to possessing a firearm as a convicted felon

in violation of 18 U.S.C. § 922(g)(1).      The district court sentenced him to 100 months’

imprisonment based on a cross-reference to attempted first-degree murder under the Sentencing

Guidelines. On appeal, defendant both challenges the cross-reference and argues that the use of

an improper identification procedure violated his due process rights. We disagree and affirm.

                                               I.

       On August 25, 2013, security guard Andrew Tarrell Lee responded to a gambling

complaint at the Kimball Cabana apartment complex in Memphis, Tennessee. Kimball Cabana

is a “problem spot” for Memphis-area crime. Local prosecutors designated the complex a

       *
         The Honorable James G. Carr, Senior United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 15-5519
United States v. Simmons


“Safeway property,” meaning only residents and their visitors are allowed on the premises;

“[y]ou can’t be just loitering outside.” Lee enforced this policy.

       In the parking lot, Lee saw a group of “six or seven” men gambling, including defendant.

Though he did not know their names, Lee recognized defendant and the others from prior

incidents at the complex and knew they were not residents. Lee approached and asked for

identification. The men refused and cursed at him. At that point, Lee contacted the Memphis

police for assistance. He ordered the group to leave the property. “Fuck you,” defendant replied,

walking back toward the complex. Lee told defendant he was under arrest, and defendant ran

around the apartment building and outside the gate. Just then, the police arrived. They pursued

defendant but could not catch him. As he ran, defendant shouted back at Lee: “I’m going to get

you, punk mother fucker.”

       Lee ended his shift between 2:00 a.m. and 3:00 a.m. (Id. at 142). While walking out to

his car, Lee saw a man “run [out] from the corner of the [apartment] building very fast.” He

wore black clothing with a hoodie and a mask covering his face. The man came within 10 feet of

Lee and cocked a shotgun at him, warning, “[d]rop it off, you punk mother fucker.” He pulled

the trigger and Lee jumped to the left, narrowly avoiding fire. Fearing for his safety, Lee

grabbed his own gun and returned fire. The man fell to the ground, but Lee was unsure whether

he was hit. Instead of responding to Lee’s commands to put up his hands, the man motioned

toward his belt as if reaching for a weapon. Lee fired again. The man started yelling for help.

He pulled off his mask, “and that’s when [Lee] got a clear look at his face.” Lee recognized it

was defendant—the same person who threatened him hours earlier.

       Property manager Joyce Alana awoke to “the sound of a humungous boom” and

witnessed the incident from her apartment window. At first, Alana saw only one man, “dressed

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United States v. Simmons


like in all black,” with a black hoodie. He fired a shotgun at another man who came into view

later and returned fire. Alana called 9-1-1. Once he was hit, the man in black crawled toward

the apartment where police later found defendant. Like Lee, Alana did not know defendant by

name, but had seen him around Kimball Cabana and recognized him.

       A grand jury indicted defendant on one count of being a felon in possession of a firearm.

Though he pleaded guilty to the charge, defendant denied any involvement in the shooting at the

sentencing hearing. He also denied gambling at the complex. Defendant explained he went to

Kimball Cabana around 1:00 a.m. to give his cousin a haircut. There, he encountered a group of

men in the parking lot. They told defendant they were “about to mess with the security guard”

by “pull[ing] a prank” and shooting the guard’s car. Defendant intended to leave, but “stayed

and kept walking” in front of the men. Suddenly, one of them fired a gun in the air, and another

fired at a nearby car. Defendant ran until he was shot in the back of his right shoulder.

He acknowledged wearing dark clothing, but stated he was not wearing a hoodie.

       Defendant’s presentence report calculated a base offense level of 33 because of a cross-

reference to attempted first-degree murder under the Sentencing Guidelines.       See U.S.S.G.

§ 2K2.1(c)(1)(A) & 2X1.1. With a two-level reduction for acceptance of responsibility and

defendant’s category III criminal history score, the resulting Guidelines range was 135 to 168

months imprisonment, subject to a statutory maximum of 120 months.               See 18 U.S.C.

§ 924(a)(2). Defendant objected to the attempted murder cross-reference.

       Finding Lee and Alana more credible than defendant, the district court determined that

“the enhancement . . . for assault with intent to commit murder is appropriate in Mr. Simmons’

case.” Applying a downward variance from the Guidelines range, the district court sentenced



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United States v. Simmons


defendant to 100 months’ imprisonment, followed by three years of supervised release.

Defendant timely appealed.

                                                   II.

                                                   A.

         Unlawful possession of a firearm is sentenced under § 2K2.1 of the Guidelines. Section

2K2.1(c) authorizes a district court to substitute or “cross-reference” the offense level for any

criminal offense that the defendant committed or attempted to commit in connection with his

possession of the firearm, “regardless of whether a criminal charge was brought, or a conviction

obtained” for the substitute offense. See U.S.S.G. § 2K2.1(c) cmt. 14(C). The government must

prove facts warranting the cross-reference by a preponderance of the evidence. United States v.

Brika, 487 F.3d 450, 459–60 (6th Cir. 2007).

         Defendant challenges the factual findings underpinning the attempted murder cross-

reference. He contends the district court erred in finding: (1) he was the individual who shot at

Lee; and (2) that he did so with intent to kill.

         “We review a district court’s sentencing decision for reasonableness, which has both

procedural and substantive components.” United States v. Garcia-Robles, 640 F.3d 159, 163

(6th Cir. 2011) (citations omitted). A sentence is procedurally unreasonable if, for instance, the

district court improperly calculates the Sentencing Guidelines range, treats the Sentencing

Guidelines as mandatory, ignores the factors set forth in 18 U.S.C. § 3553(a), fails to adequately

explain a chosen sentence, or—as defendant argues here—bases a sentence on clearly erroneous

facts.   Gall v. United States, 552 U.S. 38, 51 (2007).       We review preserved procedural

reasonableness claims for an abuse of discretion. United States v. Davis, 751 F.3d 769, 773 (6th



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United States v. Simmons


Cir. 2014). But “[w]ithin this framework,” we evaluate the district court’s legal determinations

de novo and its factual findings for clear error. Id.

       In support of his claim that the evidence was insufficient to establish his identity as the

shooter, defendant highlights what he sees as contradictions in the government’s proofs. For

example, Lee and Alana believed that Lee shot his attacker in the front of the body, whereas

defendant was shot in the back of his shoulder, consistent with his claim that he ran from the

shooting. Lee’s account of the incident also varied over time. Defendant notes that the report

Lee gave to police immediately after the shooting did not state that Lee knew the shooter, or that

the shooter wore a hoodie or mask. Lee similarly failed to mention the mask while testifying in

an earlier state-court proceeding.

       But defendant is too selective. None of these discrepancies leave us with a “definite and

firm conviction that a mistake has been committed” in view of the evidence as a whole. Easley

v. Cromartie, 532 U.S. 234, 242 (2001) (citation omitted). First, Lee and Alana both expressed

uncertainty about where defendant was shot, describing the location of the injury only “as far as

[they] could see.” Second, Alana testified she saw only two people in the parking lot, rebutting

defendant’s claim that another group of men was responsible for the shooting. Third, regarding

defendant’s clothing, Alana and Lee agreed the attacker wore a black hoodie intended to obstruct

his face. The government also submitted photographic evidence of a mask found at the crime

scene corroborating Lee’s claim that defendant was wearing a mask. Finally, as to the police

report, Lee clarified that he told the police he did not know the shooter’s name, not that he did

not recognize the shooter.

       Beyond this, the district court questioned Lee directly, asking him to describe the mask,

his relative position to the attacker, and the lighting in the parking lot. Lee answered to the

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No. 15-5519
United States v. Simmons


court’s satisfaction. An overhead streetlight gave Lee a “good” look at defendant’s face. He had

“no doubt” defendant was the shooter. Under the clear error standard, “the fact that there is

evidence in the record to support [a] finding is sufficient to preclude us from second guessing the

[district] court’s determination,” United States v. Wheaton, 517 F.3d 350, 369 (6th Cir. 2008),

and we will not do so here.

        The same goes for defendant’s claim that the district court erred in finding intent to kill.

Murder is “the unlawful killing of a human being with malice aforethought,” perpetrated by

“poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated”

means. 18 U.S.C. § 1111(a). “Although a murder may be committed without an intent to kill, an

attempt to commit murder requires a specific intent to kill.” Braxton v. United States, 500 U.S.

344, 351 n.* (1991) (citation omitted); see also State v. Kimbrough, 924 S.W.2d 888, 891 (Tenn.

1996) (describing attempted murder under Tennessee law).            According to the testimony,

defendant engaged in a confrontation with Lee a few hours before the shooting and threatened to

“get” him. He returned to the complex that night dressed in black clothing intended to conceal

his identity. After lying in wait for Lee’s shift to end, defendant ambushed him in the parking lot

and fired a shotgun at him. The district court did not clearly err in finding defendant intended to

kill Lee.

                                                 B.

        Defendant next complains that the use of a suggestive photographic identification

procedure violated his due process rights. Specifically, Lee testified that when he spoke with

police after the shooting, they showed him a single photograph of defendant and “asked . . . was

this the guy,” to which Lee replied, “yes, that’s him.”



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United States v. Simmons


       We review preserved constitutional sentencing challenges de novo, see United States v.

Jones, 569 F.3d 569, 573 (6th Cir. 2009), and unpreserved challenges for plain error, see United

States v. Yancy, 725 F.3d 596, 600 (6th Cir. 2013). Defendant did not object to the identification

procedure before the district court, but submits the preservation requirements should be excused

because he did not learn of the suggestive procedure until Lee testified at the sentencing hearing.

Yet, even with the benefit of de novo review, defendant has not established a violation of his due

process rights.

       The Due Process Clause prohibits the use of identification testimony at trial if “the

photographic identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377,

384 (1968). To determine the validity of an identification procedure, we apply a two-part test:

first, the defendant must demonstrate that the identification procedure was impermissibly

suggestive; second, assuming the procedure was suggestive, the court considers whether the

identification was nevertheless reliable under the totality of the circumstances. United States v.

Meyer, 359 F.3d 820, 824 (6th Cir. 2004). Those circumstances include:

       (1) the witness’ opportunity to view the suspect; (2) the witness’ degree of
       attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the
       level of certainty demonstrated by the witness at the time of the identification; and
       (5) the time between the crime and the identification.

Haliym v. Mitchell, 492 F.3d 680, 704 (6th Cir. 2007) (citing Manson v. Brathwaite, 432 U.S. 98,

114 (1977); and Neil v. Biggers, 409 U.S. 188, 199–200 (1972)).

       “Although identifications arising from single-photograph displays may be viewed in

general with suspicion,” the total circumstances may nevertheless negate the “corrupting effect

of the suggestive identification,” particularly where the witness knows the defendant. Manson,


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United States v. Simmons


432 U.S. at 114, 116; see e.g., United States v. Shields, 415 F. App’x 692, 702–03 (6th Cir.

2011) (use of single-photograph was not impermissibly suggestive where witnesses saw the

defendant “numerous times prior to being shown the photograph”).               Witnesses may have

difficulty observing and later identifying a stranger, but they “are very likely to recognize . . . the

people in their lives with whom they are most familiar, and any prior acquaintance with another

person substantially increases the likelihood of an accurate identification.” Haliym, 492 F.3d at

706.   Here, Lee knew defendant from previous encounters at the apartment complex; he

recognized defendant when he confronted the gamblers and when defendant removed his mask

following the shooting. Alana’s testimony that defendant was a regular at Kimball Cabana

added weight to Lee’s assertion that he recognized defendant. “[R]eliability is the linchpin in

determining the admissibility of identification testimony,” Manson, 432 U.S. at 114, and Lee’s

familiarity with defendant “substantially increase[d] the reliability” of his identification, Haliym,

492 F.3d at 707.

       The totality of the circumstances additionally supports a finding of reliability. Lee had a

clear view of defendant during the gambling incident and immediately after the shooting, and his

concern for his own safety “also suggests a heightened degree of attention.” Id. at 705. Further,

Lee gave no prior inaccurate description of the perpetrator; he identified defendant at the police

station within hours of the shooting, and expressed complete certainty in his identification. On

the whole, Lee’s identification was independently reliable and admission of his testimony did not

offend defendant’s due process rights. Defendant is not entitled to remand for resentencing or an

opportunity to withdraw his guilty plea based on the suggestive identification procedure.

                                                 III.

       We affirm the district court’s judgment.

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