                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0132n.06

                                   Case Nos. 17-5803/5804

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                FILED
                                                                           Mar 14, 2018
UNITED STATES OF AMERICA,                            )
                                                                       DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE EASTERN DISTRICT OF
BRANDON S. WOODLEY,                                  )      TENNESSEE
                                                     )
      Defendant-Appellant.                           )
____________________________________/                )
                                                     )

Before: KEITH, KETHLEDGE, and DONALD, Circuit Judges.

       DAMON J. KEITH, Circuit Judge.               Appellant Brandon S. Woodley appeals his

conviction and sentence. Woodley challenges the sufficiency of the evidence underlying his

conviction and contends that the district court abused its discretion by admitting evidence

pertaining to his prior firearm possession and his alleged gang affiliation.      Additionally,

Woodley argues that the district court abused its discretion by applying an incorrect sentencing

enhancement, elevating Woodley’s offense level to 29 after applying a cross-reference guideline

for attempted voluntary manslaughter.

                                               I.

       On August 12, 2015, a grand jury indictment was returned, charging Woodley with one

count of felon in possession of ammunition, in and affecting commerce, in violation of 18 U.S.C.
Case Nos. 17-5803/5804; United States v. Woodley


§ 922(g)(1). After a jury trial, a guilty verdict was returned on December 21, 2016. Woodley

was subsequently sentenced to 120 months of incarceration, to be served consecutively to an

eighteen-month sentence imposed in connection with a prior offense, followed by a three-year

term of supervised release. Woodley’s motion for acquittal filed after the return of the jury

verdict was denied by the district court. Woodley timely appealed his conviction and sentence.

                                               II.

    A. Sufficiency of the Evidence

       Woodley first challenges the sufficiency of the evidence to sustain his conviction. Upon

review of a challenge to the sufficiency of the evidence, we must determine “whether, after

viewing the evidence in the light most favorable to the prosecution, and after giving the

government the benefit of all inferences that could reasonably be drawn from the testimony, any

rational trier of fact could find the elements of the crime beyond a reasonable doubt.” United

States v. Gravely, 282 F. App’x 401, 404 (6th Cir. 2008) (emphasis omitted). “[T]his court does

not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that

of the jury.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007) (internal quotations

omitted). A judgment will be reversed “only if [the] judgment is not supported by substantial

and competent evidence upon the record as a whole.” United States v. Barnett, 398 F.3d 516,

522 (6th Cir. 2005).

       The offense at issue, possession of ammunition by a felon, requires the government to

prove beyond a reasonable doubt that: 1) Woodley had a prior felony conviction; (2) Woodley

knowingly possessed ammunition; and (3) the ammunition possessed had been transported in or

affected interstate commerce. See 18 U.S.C. § 922(g)(1); Gardner, 488 F.3d at 713.




                                              -2-
Case Nos. 17-5803/5804; United States v. Woodley


           The record reflects that Woodley stipulated to the first and third elements of the offense,

leaving element two—knowing possession—the only remaining issue in dispute at trial. During

Woodley’s trial, the government relied on the testimony of Anthony Hall, who stated that he was

shot by Woodley in the parking lot of the hotel where he temporarily resided. The jury also

heard the accounts of two other witnesses, Marco Cianfarani, who testified that he heard a

gunshot and then observed a man, wearing a red cap and a red hooded sweatshirt, searching the

ground for what he believed was a shell casing, and Latoysha Burton, who called 911 after the

shooting.1 In addition to the testimony of Hall, Cianfarani and Burton, physical evidence—

consisting of a live round, found near the sidewalk abutting the hotel, and a shell casing found in

the parking lot of the hotel—was recovered from the scene of the shooting. Woodley contends

that this evidence was insufficient to prove that he knowingly possessed ammunition on the date

of the shooting. We disagree.

           The element of possession can be proven by either direct or circumstantial evidence.

United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). “Circumstantial evidence alone is

sufficient to sustain a conviction and such evidence need not remove every reasonable

hypothesis except that of guilt.” Barnett, 398 F.3d at 522. Based on the record evidence, we

find that a reasonable jury could have found that Woodley knowingly possessed the ammunition

recovered from the scene of the shooting. This satisfactory showing of element two of the

offense, coupled with Woodley’s stipulation of elements one and three, proves sufficient to

sustain Woodley’s conviction of the charged offense.

        B. Admission of Prior Firearm Possession and Gang-Related Evidence

           Next, Woodley asserts that the district court abused its discretion by allowing evidence of

Woodley’s prior firearm possession and gang affiliation to be heard by the jury at trial. We
1
    Woodley testified that he was wearing a red sweatshirt on the night of the shooting.

                                                          -3-
Case Nos. 17-5803/5804; United States v. Woodley


review evidentiary rulings for an abuse of discretion. United States v. Allen, 619 F.3d 518, 523

(6th Cir. 2010).          An abuse of discretion occurs when the district court “relies on clearly

erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal

standard.” Id.

           Character evidence and other evidence of crimes, wrongs, or prior acts are generally

inadmissible to prove a defendant’s propensity towards committing an alleged offense. See Fed.

R. Evid. 404. Pursuant to Federal Rule of Evidence 404(b)(2), however, evidence of prior acts

“may be admissible for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid.

404(b)(2).        “Prior to admitting Rule 404(b) evidence, the district court must: (1) make a

preliminary finding as to whether sufficient evidence exists that the prior act occurred;

(2) determine whether the other act is admissible for one of the proper purposes outlined in Rule

404(b); and (3) apply Rule 403 balancing to determine whether the evidence’s probative value is

substantially outweighed by the danger of unfair prejudice or the other concerns embodied in

Rule 403.” Allen, 619 F.3d at 523.2

           Woodley challenges the admissibility of testimony relating to his prior firearm possession

and his involvement with a gang, asserting that the prejudice of said evidence outweighed its

probative value. As to the evidence relating to Woodley’s prior firearm possession, the court

found that evidence intimating that the defendant previously and regularly possessed a firearm

was admissible for a proper purpose, specifically, the defendant’s opportunity to commit the

shooting at issue in this case. Where, as here, the evidence relating to Woodley’s prior firearm

possession was directly related to Woodley’s opportunity to have carried out the offense against

Hall on the night of the shooting, the district court’s admission of the prior possession evidence
2
    The government filed a notice of its intent to use Rule 404(b) evidence prior to trial.

                                                            -4-
Case Nos. 17-5803/5804; United States v. Woodley


was not an abuse of discretion. Moreover, limiting instructions were given to the jury in relation

to the testimony of Casey Howren, Woodley’s ex-girlfriend, Burton and Hall regarding

Woodley’s prior use and possession of a firearm, further protecting the defendant from the

occurrence of any unfair prejudice on account of the evidentiary admission.

       As to the gang-related evidence, the district court held that is was admissible for the

purpose of demonstrating Woodley’s motive for shooting Hall. But for Hall’s earlier testimony

that a conversation about Woodley’s gang affiliation sparked a disagreement between the two,

ultimately initiating the breakdown in his friendship with Woodley, gang evidence would likely

be inadmissible. However, here, Woodley’s gang affiliation was probative of the deteriorating

relationship between Woodley and Hall, and furthered the government’s theory that this incident

with Woodley, where he confronted Hall about allegedly speaking to a member of another gang,

initiated a shift in the relationship and contributed to Woodley’s motive for shooting Hall.

Woodley points to no occurrence in the record which would indicate that the limited reference to

Woodley’s gang affiliation was unduly prejudicial or unfairly affected the outcome of the case;

thus the district court’s admission of relevant gang-related evidence was not an abuse of

discretion. See United States v. Anderson, 333 F. App’x 17, 24 (6th Cir. 2009) (“Even if the trial

court abused its discretion in admitting gang evidence, . . . a defendant is not entitled to reversal

of his conviction if admission of the evidence was harmless.”).

    C. Application of the Cross-Reference Guideline for Attempted Voluntary Manslaughter

       Woodley contends that the district court erred in denying his objections to the

presentence investigation report (“PSR”), primarily his objection to the application of a cross-




                                                -5-
Case Nos. 17-5803/5804; United States v. Woodley


reference offense level for attempted voluntary manslaughter.3 In reviewing the district court’s

application of the United States Sentencing Guidelines (“U.S.S.G.”), “[t]he district court’s

interpretation of the advisory Guidelines is reviewed de novo, and its findings of fact are

reviewed for clear error.” United States v. Harris, 552 F. App’x 432, 436 (6th Cir. 2014)

(quoting United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009)). The Sentencing Guidelines

corresponding to crimes involving the unlawful receipt, possession or transportation of firearms

or ammunition are outlined in U.S.S.G. § 2K2.1.

         Section 2K2.1’s cross-reference provision instructs:

                  [i]f the defendant used or possessed any firearm or ammunition
                  cited in the offense of conviction in connection with the
                  commission or attempted commission of another offense, or
                  possessed or transferred a firearm or ammunition cited in the
                  offense of conviction with knowledge or intent that it would be
                  used or possessed in connection with another offense, apply . . .
                  §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that
                  other offense, if the resulting offense level is greater than that
                  determined above . . . .

         “District courts may cross-reference under § 2K2.1 only where a preponderance of the

evidence supports the conclusion that the defendant committed or attempted to commit the

offense that provides the cross-reference.” United States v. Frost, 521 F. App’x 484, 490 (6th

Cir. 2013). “We afford due deference to the district court’s determination that a cross-reference

to the Homicide Guidelines was necessary.” Harris, 522 F. App’x at 439 (internal quotations

omitted).

         The PSR reflects that a base offense level of 20 was applicable for a violation of 18

U.S.C. § 922(g)(1) under § 2K2.1(a)(4)(A). The base offense level was increased by four points,

pursuant to § 2K2.1(b)(6)(B), which applies if a defendant “used or possessed any . . .

3
  As it pertains to Woodley’s second contention on appeal regarding objections made to the PSR, we find no error in
the district court’s determination regarding the PSR’s summarization of the evidence presented at trial, and certainly
no error that ultimately affected Woodley’s sentence.

                                                        -6-
Case Nos. 17-5803/5804; United States v. Woodley


ammunition in connection with another felony offense,” here, attempted voluntary manslaughter,

elevating Woodley’s offense level to 24. Next, the probation office utilized the cross-reference

provision of the Guidelines, § 2K2.1(c)(1)(A), substituting Woodley’s base offense level for the

base offense level associated with attempted voluntary manslaughter, 29. See U.S.S.G. § 2A1.3.

The PSR indicates that because Woodley used ammunition in connection with the attempted

commission of voluntary manslaughter, the greater offense level is applicable.

       Unlike the more commonly asserted challenge to the sufficiency of the evidence

establishing the elements of the cross-referenced offense, or a challenge to the propriety of

applying a cross-reference guideline generally, Woodley’s argument on appeal simply asserts

that the application of the cross-referenced guideline associated with aggravated assault would be

“more appropriate.” Woodley asserts that because the offense of aggravated assault carries with

it a base offense level of 14, the appropriate calculation, adjusted for the applicable

enhancements for discharging a firearm under § 2A2.2(b)(2)(A), and the resulting serious bodily

injury under § 2A2.2(b)(3)(B), would be a base offense level of 24—the equivalent of the base

level calculated prior to the § 2K2.1(c)(1)(A) enhancement.

       In response to Woodley’s objections to the PSR, the district court found sufficient

evidence to establish the elements of attempted voluntary manslaughter, as defined in 18 U.S.C.

§ 1112 (an unlawful killing of a human being without malice, upon a sudden quarrel or heat of

passion).

               The jurors in this case heard testimony from victim Anthony Hall
               that he and the defendant argued in a motel room. According to
               Hall, the two men then went into the parking lot where the
               defendant shot Hall once from fairly close range and attempted to
               continue firing. The jurors also heard the testimony of Marco
               Cianfarani who stated that he observed the defendant combing the
               pavement for items the size of spent shell casings. Latoysha Burton
               testified that Hall told her that the defendant shot him.

                                              -7-
Case Nos. 17-5803/5804; United States v. Woodley


               The court heard the above-cited testimony at each trial and found
               that testimony to be credible. The court accordingly finds by a
               preponderance of the evidence that the defendant used the
               ammunition cited in the offense of conviction in connection with
               the attempted commission of voluntary manslaughter. The
               defendant shot Hall from fairly close range immediately following
               a sudden quarrel and tried to continue firing. As such, the
               probation officer properly cross referenced the voluntary
               manslaughter guideline in this case, and the defendant’s third
               objection will be overruled.

       Contrary to Woodley’s assertions on appeal, it is not the role of this court to engage in a

balancing test to determine a defendant’s optimal sentencing outcome. As we have emphasized

in cases past, “[o]ur task on appeal is limited to considering whether the district court’s

application of the cross reference was correct under existing law.” United States v. James,

575 F. App’x 588, 593 (6th Cir. 2014). Reviewing the district court’s finding for clear error, and

according the sentencing court the appropriate deference, we conclude that our circuit precedent

allows uncharged conduct to form the basis for the base offense level and, here, the elements of

attempted voluntary manslaughter were established by a preponderance of the evidence.

                                               III.

       For the foregoing reasons, the district court’s judgment and sentence are affirmed.




                                              -8-
