               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0245n.06

                                    Nos. 13-6536/14-5168
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Apr 07, 2015
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                       )
                                                )
        Plaintiff-Appellee,                     )
                                                )         ON APPEAL FROM THE
v.                                              )         UNITED STATES DISTRICT
                                                )         COURT FOR THE WESTERN
LEREGINALD STRONG (13-6536);                    )         DISTRICT OF TENNESSEE
JOSEPH BANKS (14-5168),                         )
                                                )
                                                                  OPINION
        Defendants-Appellants.                  )
                                                )
                                                )


Before: BATCHELDER, MOORE, and SUTTON, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. As Albert Hall returned home on October

23, 2012, he noticed two men walking down his street. After pulling into his driveway, Hall got

out of his car and walked towards his house. He turned around after hearing footsteps behind

him, and found himself confronted by one of the two men, who was now pointing a taser and gun

at him. The other man stood to the side, serving as a lookout. Hall quickly suspected that these

men were after his car—a Lexus GS 300.

       A brief scuffle ensued, during which Hall lost his car keys. Hall eventually fled across

his backyard, and was shot at while jumping over a gate. He fell immediately to the ground,

playing dead. After the two men drove off in Hall’s car, Hall notified the police. Shortly

afterward, officials apprehended Lereginald Strong and Joseph Banks, who were caught in a
Nos. 13-6536/14-5168, United States v. Strong et al.


high-speed chase driving Hall’s Lexus and wearing the same outfits as the carjackers whom Hall

had described to police earlier that morning.

       A jury later determined that Banks had shot at Hall, and convicted him of one count of

carjacking, see 18 U.S.C. § 2119, one count of aiding and abetting the use and carrying of a

firearm during and in relation to a crime of violence (and brandishing and discharging that

firearm), see 18 U.S.C. § 924(c), and two counts of being a felon in possession of a firearm, see

18 U.S.C. § 922(g)(1). The jury convicted Strong of one count of carjacking, see 18 U.S.C.

§ 2119, one count of aiding and abetting the use and carrying of a firearm during and in relation

to a crime of violence (and brandishing and discharging that firearm), see 18 U.S.C. § 924(c),

and one count of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). The district

court sentenced Banks to 420 months of imprisonment and Strong to 372 months of

imprisonment. Both Banks and Strong appeal their convictions and sentences. For the following

reasons, we AFFIRM Banks’s and Strong’s convictions and sentences.

                                      I. BACKGROUND

       Shortly after Hall gave a statement to police, Officer Keith Murden heard a call on his

police radio about a carjacking, and learned that the vehicle’s “last known direction was towards

Summer,” an area that Murden was then patrolling. R. 84 (Trial Tr. at 532) (Page ID #744).

Murden soon spotted a blue Lexus matching the description that he had just heard, and turned on

his siren. Instead of slowing down, however, “the vehicle took off,” and a high-speed chase

ensued, with several other police cruisers eventually joining in pursuit. Id. at 532–33 (Page ID

#744–45). About three or four minutes later, the Lexus crashed into another car, ending the


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Nos. 13-6536/14-5168, United States v. Strong et al.


chase. Banks was removed from the driver’s seat and Strong from the passenger’s seat, and both

were placed under arrest. Officers also found a black semi-automatic handgun on the floorboard

of the driver’s seat and a brown-handled revolver on top of the passenger’s seat.

       A federal grand jury returned an indictment charging both Banks and Strong with one

count of carjacking in violation of 18 U.S.C. § 2119 and one count of aiding and abetting each

other in the use and carrying of a firearm in violation of 18 U.S.C. § 924(c). Banks was also

charged separately with two counts of being a felon in possession. A superseding indictment

added the element of brandishing to Banks’s and Strong’s 924(c) charges, and added Strong to

one of the felon-in-possession counts.

       Both defendants proceeded to trial. During voir dire, the government objected to the

defense’s decision to exercise peremptory strikes against Jurors Friend, Carney, and Roberts.

The district court engaged in a Batson inquiry, and determined that the defense had presented

sufficiently valid reasons for striking Carney and Roberts. It concluded, however, that defense

counsel had provided insufficient justification for its decision to strike Friend, and sustained the

government’s Batson challenge. In reaching this determination, it noted that the race-neutral

explanations given by the defense were “poorly supported,” R. 83 (Trial Tr. at 317) (Page ID

#529) and “pretextual,” id. at 318 (Page ID #530). Banks and Strong were convicted of all

counts at the end of a four-day trial.

       On appeal, both Banks and Strong challenge the district court’s Batson decision.

Separately, Banks alleges (a) that the district court erred by allowing Officer Harris to identify

his voice on a series of telephone calls made from the Shelby County Jail, (b) that the evidence


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Nos. 13-6536/14-5168, United States v. Strong et al.


was insufficient to convict him of carjacking, (c) that the district court erred in finding him to be

a career offender, and (d) that the district court improperly applied the attempted-murder cross-

reference provision to him. Strong alleges (a) that the evidence was insufficient to convict him

of aiding and abetting the carjacking, (b) that the evidence was insufficient to convict him of

aiding and abetting the brandishing and discharge of a firearm during and in relation to a crime

of violence, and (c) that the district court improperly applied the attempted-murder cross-

reference provision to him. Because Banks and Strong have asserted the same Batson claim, we

analyze that claim first. We then examine Banks’s and Strong’s other claims separately.

                                      II. BATSON CLAIM

       The Equal Protection Clause guarantees defendants “the right to be tried by a jury whose

members are selected pursuant to nondiscriminatory criteria.” Batson v. Kentucky, 476 U.S. 79,

85–86 (1986). “Batson applies to peremptory challenges based on race or gender,” United States

v. Kimbrel, 532 F.3d 461, 466 (6th Cir. 2008), and each party may challenge the other side’s

decision to strike a potential juror, see Georgia v. McCollum, 505 U.S. 42, 59 (1992).

       “We review a district court’s determination of a Batson challenge with ‘great deference,’

under a clearly erroneous standard.” United States v. Copeland, 321 F.3d 582, 599 (6th Cir.

2003) (quoting United States v. Buchanan, 213 F.3d 302, 308–09 (6th Cir. 2000)). “Deference is

necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as

well positioned as the trial court is to make credibility determinations.” Miller-El v. Cockrell,

537 U.S. 322, 339 (2003). Deference, however, “does not imply abandonment or abdication of




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Nos. 13-6536/14-5168, United States v. Strong et al.


judicial review,” id. at 340, as “deference, by definition, does not preclude relief,” United States

v. McAllister, 693 F.3d 572, 578 (6th Cir. 2012).

       “A Batson challenge entails three distinct and sequential steps: (1) the opponent of the

peremptory strike must make a prima facie case that the challenged strike was based on race;

(2) the burden then shifts to the proponent of the peremptory challenge to articulate a race-

neutral explanation for the strike; (3) finally, the trial court must determine whether the opponent

of the peremptory strike has proven purposeful discrimination.” Id.

       At step one, the government must “show that the relevant circumstances raise an

inference that the proponent of the strike excluded prospective jurors from the petit jury because

of their race.” Kimbrel, 532 F.3d at 466 (internal quotation marks omitted). The government has

satisfied this requirement: it pointed out at voir dire that nine out of defense counsel’s ten strikes

had been used against white jurors. We have held before that, although similarities between

excluded jurors cannot constitute a Batson violation per se, they can be a factor supporting an

inference of discrimination. See United States v. Sangineto-Miranda, 859 F.2d 1501, 1521–22

(6th Cir. 1988).

       We also believe that the defense offered a facially-valid race-neutral explanation for its

decision to strike Friend—that Friend had been staring at Strong and that Friend had previously

worked with another juror. We have observed that “the trial court cannot inquire at step two—

where the proponent’s burden is merely to provide a facially valid explanation—whether the

explanation is ‘plausible’ or even ‘minimally persuasive.’” Kimbrel, 532 F.3d at 466 (quoting




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Nos. 13-6536/14-5168, United States v. Strong et al.


Purkett v. Elem, 514 U.S. 765, 768 (1995)). The explanation given can be “silly” or even

“superstitious,” so long as it is race-neutral. Purkett, 514 U.S. at 768.

       Finally, we must determine whether the trial court clearly erred in finding purposeful

discrimination. We begin by examining the two explanations offered by the defense. First,

defense counsel pointed out that he thought Friend worked for Robertson, another juror. See R.

83 (Trial Tr. at 301) (Page ID #513). The district court corrected counsel, stating that “[h]e

doesn’t work with her now. He used to. She was part of the hiring process, she was not a

supervisor for him, and they do not currently work together.” Id. The district court went on to

restate that “[Friend] no longer works for her, they no longer see each other,” before finding that

“I don’t think we get over [step] number two. I think we just didn’t get over it. Now, if we

crawled over—if we got over number two . . . then you have the [sic] to say at step three, has the

proponent produced a facially valid explanation[?] . . . [T]his [explanation] doesn’t appear to be

supported by any basis in fact, it appears to be invalid and, therefore, it seems to be pretextual.”

Id. at 318 (Page ID #530). Given this discussion, we think that the district court properly

weighed defense counsel’s explanation regarding Friend’s working relationship to the other juror

and found it wanting.

       Strong and Banks also argue that Friend stared at Strong during voir dire. The district

court stated in contrast that “[t]he court didn’t make this observation. In fact, the court would

have to say that I was talking to Mr. Friend and watching Mr. Friend, I didn’t see any of this.

I think I probably would have. I certainly noticed what was going on as to Ms. Roberts, and that

was clear.” Id. at 316 (Page ID #528). The district court went on to describe defense counsel’s


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Nos. 13-6536/14-5168, United States v. Strong et al.


characterization as “very subjective,” “very, very weak,” and “inherently problematic.” Id. It

ultimately found this explanation pretextual, stating that “[t]he reason it appears to have been

[pretextual] is that Mr. Friend, who of all of our jurors, is actually remarkably white. He’s just

plain pale. He makes Mr. Sullivan [defense counsel] and me look like we’re rosy complected

[sic]. That probably sounds bad, but he’s just very pale, so, unfortunately, I don’t know that that

had anything to do with it.” Id. at 318–19 (Page ID #530–31).

       We note, as a threshold matter, that staring at a defendant may constitute a valid race-

neutral explanation for excluding a potential juror. See United States v. Turner, 674 F.3d 420,

436 (5th Cir. 2012); see also McCurdy v. Montgomery Cnty., 240 F.3d 512, 521 (6th Cir. 2001)

(“[B]ody language and demeanor are permissible race-neutral justifications for the exercise of a

peremptory.”). We also note, however, that “determinations of credibility and demeanor lie

peculiarly within a trial judge’s province,” and, “in the absence of exceptional circumstances, we

would defer to [the trial court].” Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (internal

quotation marks omitted).

       With these two considerations in mind, we hold that the district court did not clearly err

in finding purposeful discrimination. To be clear, our decision should not in any way be read as

an endorsement of the district court’s comments regarding Friend’s paleness, which even it

seemed to acknowledge were inappropriate. In fact, we strongly disapprove of the statements

regarding relative skin tones that the district court made, and believe that it could have addressed

the government’s Batson claim in any number of different (and more appropriate) ways. On the

whole, however, it appears that the district court considered the relevant arguments made by both


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Nos. 13-6536/14-5168, United States v. Strong et al.


parties and had a reasonable basis for finding defense counsel’s explanation to be weak and

implausible. The district court, for example, stated that it had personally not seen Friend staring

at Strong, even while the district court “was talking to Mr. Friend and watching Mr. Friend”

during voir dire.   R. 83 (Trial Tr. at 316) (Page ID #528).        By contrast, in rejecting the

government’s Batson challenge with respect to Roberts, the district court noticed and noted

Roberts’s affect. In addition, the district court acknowledged that “when you get to Batson

challenges, the courts are reluctant, because the way it is organized in terms of the burden of

proof, you got to prove a whole lot.” Id. at 319 (Page ID #531). The district court concluded

that the government had met its burden in this case, a finding that the court made while having

the advantage of “observing the voir dire, [of] knowing the layout of the courtroom better than a

written description can provide, and [of] being able to consider the demeanor of [defense

counsel] as he made his explanation.” Turner, 674 F.3d at 436. Despite our strong reservations

regarding some of the comments made by the district court, we conclude that the district court

did not clearly err in its Batson determination to seat Friend on the jury notwithstanding defense

counsel’s peremptory challenge.

                                    III. BANKS’S CLAIMS

A. Admissibility of Jail Calls

       Banks contends that the district court improperly admitted testimony identifying his voice

on a series of outbound phone calls made from the Shelby County Jail. Specifically, he alleges

that the government failed to establish the foundation for the introduction of such evidence

because its witness, Officer Juaquatta Harris, was not personally familiar with his voice.


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Nos. 13-6536/14-5168, United States v. Strong et al.


       We review the district court’s admission of Officer Harris’s testimony for abuse of

discretion. United States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004). At trial, Officer Harris

testified at length about how she isolated, traced, and identified the calls specific to Banks.

Some of these calls were made using Banks’s Record and Identification (R&I) number, a unique

number assigned to each inmate. Others (including those at issue here) were made from a

general intake area, where inmates do not need to enter their R&I number but can make only

outgoing calls. Harris linked these calls to Banks’s R&I calls by examining the numbers called

and by listening in on the conversations that took place during these calls to pick up on any

identifying information.

       Although Harris was not personally familiar with Banks’s voice, there are nonetheless

sufficient indicia of reliability here to support admissibility. The Federal Rules of Evidence

allow opinions identifying a person’s voice “based on hearing the voice at any time under

circumstances that connect it with the alleged speaker.” Fed. R. Evid. 901(b)(5) (emphasis

added). Such circumstances exist here: the calls at issue were made to Banks’s mother, while

Banks was in custody, concerning the carjacking that had occurred earlier that day. Officer

Harris had gained familiarity with Banks’s voice by hearing him identify himself on a separate

call using his R&I number. See United States v. Cruz-Rea, 626 F.3d 929, 935 (7th Cir. 2010)

(upholding district court’s decision to admit identification testimony based on officer’s becoming

familiar with defendant’s voice through fifteen-second voice exemplar).

       Banks’s reliance on the First Circuit’s decision in Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.

1992), is misplaced. As the First Circuit later explained in United States v. Brown, 510 F.3d 57,


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Nos. 13-6536/14-5168, United States v. Strong et al.


68 (1st Cir. 2007), the Ricci court found the voice identification in that case to be unreliable

because “the officer made the recording on a hand-held recorder” and “had no expert training in

voice identification.” Here, Officer Harris culled the records through an established electronic

monitoring system. She was able to compare multiple samples of Banks’s voice against one

another. The subject matter of the conversations pointed directly to Banks. In light of these

facts, the district court did not abuse its discretion in allowing Officer Harris to testify at trial.

B. Sufficiency of the Evidence to Support Banks’s Carjacking Conviction

        Banks next argues that the evidence was insufficient to convict him of carjacking. “We

review a claim of insufficient evidence in the light most favorable to the government.” United

States v. Fekete, 535 F.3d 471, 476 (6th Cir. 2008). Our review is limited to “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).               “To obtain a conviction for

carjacking, the government must prove that the defendant, (1) with intent to cause death or

serious bodily harm, (2) took a motor vehicle, (3) that had been transported, shipped, or received

in interstate or foreign commerce, (4) from the person or presence of another (5) by force and

violence or intimidation.” Fekete, 535 F.3d at 476 (citing 18 U.S.C. § 2119).

        Banks here contests only the first element—intent. On this point, we have held “that

physically touching a victim with a weapon, standing alone, is sufficient to justify a finding that

the victim faces an imminent threat of physical harm, and indicates an intent on the part of the

defendant to act violently.” United States v. Adams, 265 F.3d 420, 425 (6th Cir. 2001). In


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Nos. 13-6536/14-5168, United States v. Strong et al.


Adams, the defendant approached the victim and pointed a firearm at her. The victim fell to the

ground after a brief skirmish. The victim left her keys in her car; after picking up some of the

victim’s money, which had fallen to the ground, the defendant entered the victim’s car and drove

away.    Id. at 422.    We upheld defendant’s conviction for carjacking in Adams against a

sufficiency-of-the-evidence challenge.

        This case involves facts that are even more egregious.             According to Hall, Banks

approached him with gun drawn. Hall and Banks engaged in a scuffle, during which Banks used

a taser in an attempt to subdue Hall. When this failed (i.e., Hall was able to push himself off of

Banks and run away), Banks drew his gun and tried to shoot Hall. Apparently, believing Hall to

be dead, Banks then retrieved Hall’s keys, and drove off with Strong. After placing Banks and

Strong under arrest, police uncovered, among other things, a loaded revolver in Hall’s car. See

also Holloway v. United States, 526 U.S. 1, 12 (1999) (“The intent requirement of § 2119 is

satisfied when the Government proves that at the moment the defendant demanded or took

control over the driver’s automobile the defendant possessed the intent to seriously harm or kill

the driver if necessary to steal the car (or, alternatively, [even] if unnecessary to steal the car).”).

        Banks’s contentions to the contrary are unavailing. Banks’s first argument—that his use

of a taser was indicative of his intention to use non-lethal force—is meritless. Banks did in fact

use lethal force, after he found the taser to be ineffective. Second, Banks argues that Hall

testified that Banks shot at him with a semi-automatic pistol, but a later examination revealed

that the only cartridge discharged was from a revolver. This distinction is insignificant, given

that Hall was fleeing from Banks, with his back turned, at the time of the shooting. The jury


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Nos. 13-6536/14-5168, United States v. Strong et al.


found, beyond a reasonable doubt, that Banks had discharged a firearm during the commission of

this offense. Finally, Banks points to two cases from our sister circuits—United States v.

Applewhaite, 195 F.3d 679 (3d Cir. 1999), and United States v. Harris, 420 F.3d 467 (5th Cir.

2005)—to argue that, in order to show carjacking, “the defendant must intend harm in order to

complete the theft of the car.” United States v. Washington, 702 F.3d 886, 892 (6th Cir. 2012)

(summarizing cases). In other words, the government must prove that Banks approached Hall in

order to steal Hall’s car, and that the theft did not simply occur as an after-the-fact consequence

of an altercation gone awry. We were presented with this very same argument in United States

v. Washington. We declined, in that case, to endorse this interpretation of § 2119, and we see no

reason to do so here. More importantly, we would find the evidence more than sufficient to

convict Banks of carjacking even under such an interpretation. Banks and Hall did not know

each other, Hall drove a Lexus—a vehicle he described as “very noticeable,” R. 84 (Trial Tr. at

397) (Page ID #609), and Banks left the scene immediately after he retrieved Hall’s keys. All of

these facts suggest that Banks intended to harm Hall in order to steal Hall’s car.

C. Career-Offender Enhancement

       Banks also objects to the district court’s classification of him as a career offender under

the Sentencing Guidelines. Under the Guidelines,

       A defendant is a career offender if (1) the defendant was at least eighteen years
       old at the time the defendant committed the instant offense of conviction; (2) the
       instant offense of conviction is a felony that is either a crime of violence or a
       controlled substance offense; and (3) the defendant has at least two prior felony
       convictions of either a crime of violence or a controlled substance offense.




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Nos. 13-6536/14-5168, United States v. Strong et al.


U.S.S.G. § 4B1.1(a). Banks does not dispute (1) or (2). Nor does he contest that his prior

conviction for manslaughter (originally charged as first-degree murder) constitutes a crime of

violence. The only remaining question is whether Banks’s Class E felony conviction for evading

arrest under Tennessee law is also a crime of violence. We determined, in United States v.

Doyle, 678 F.3d 429, 437 (6th Cir. 2012), that such convictions were violent felonies under the

Armed Career Criminal Act (“ACCA”). We held that the felony in question—Tennessee Code

Annotated § 39-16-603(b)(1)—fell within the ACCA’s residual clause, which classifies crimes

as being violent felonies if they are “punishable by imprisonment for a term exceeding one year”

and “involve[] conduct that presents a serious potential risk of physical injury to another.” Id. at

431. That same reasoning applies to this case; indeed, the residual clauses in the ACCA and in

the career-offender provision are identical to one another. Compare U.S.S.G. § 4B1.2(a)(2), with

18 U.S.C. § 924(e)(2)(B)(ii).1 The district court properly found Banks to be a career offender.

D. Application of Cross-Reference Provision for Attempted Murder

       Banks also faults the district court for its decision to calculate his base offense level by

cross-referencing his conviction for felon in possession with attempted murder. We review the

district court’s legal interpretation of the Guidelines de novo, United States v. Settle, 414 F.3d

629, 630 (6th Cir. 2005), but “accept factual findings made by the district court at sentencing

unless they are clearly erroneous.” United States v. Phillips, 516 F.3d 479, 483 (6th Cir. 2008).



       1
         The Supreme Court recently heard argument in Johnson v. United States, 134 S. Ct.
1871 (2014), a case where petitioners challenged the constitutionality of the ACCA’s residual
clause. Pending the result in that case, we invite Banks to revisit our decision today by filing a
petition for a writ of certiorari.

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Nos. 13-6536/14-5168, United States v. Strong et al.


       Section 2K2.1, the Guidelines provision for felon-in-possession offenses, contains a

cross-reference provision that applies whenever the “defendant use[s] or possesse[s] any firearm

or ammunition cited in the offense of conviction in connection with the commission or attempted

commission of another offense.” U.S.S.G. § 2K2.1(c)(1). That cross-reference directs us to

apply U.S.S.G. § 2X1.1 if defendant’s base offense level with respect to the other offense is

higher than the base offense level for defendant’s weapons possession.                    U.S.S.G.

§ 2K2.1(c)(1)(A). Section 2X1.1, in turn, requires the district court to calculate defendant’s

Guidelines range according to “[t]he base offense level from the guideline for the substantive

offense, plus any adjustments from such guideline for any intended offense conduct that can be

established with reasonable certainty.” U.S.S.G. § 2X1.1(a).

       Here, the district court cross-referenced Banks’s felon-in-possession conviction with

attempted murder, under U.S.S.G. § 2A2.1, which provides a base offense level of 33 “if the

object of the offense would have constituted first degree murder.” U.S.S.G. § 2A2.1(a)(1). The

Guidelines state that “‘First degree murder’ means conduct that . . . would constitute first degree

murder under 18 U.S.C. § 1111.” Id. at cmt. n.1. That provision defines murder in the first

degree as “the unlawful killing of a human being with malice aforethought. [This includes]

[e]very murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate,

malicious, and premeditated killing.” 18 U.S.C. § 1111(a).

       In deciding to apply the cross-reference to attempted murder, the district court stated at

sentencing that




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Nos. 13-6536/14-5168, United States v. Strong et al.


       There really wasn’t any proof that indicated anything other than attempt to shoot
       the victim as they were taking the car . . . . The defendant did not simply use or
       display a deadly weapon and, of course, sometimes that happens, certainly. He
       fired one shot at Hall subsequent to a physical altercation. That is true, there was
       a confrontation in the garage/driveway area. Hall was running away from the
       defendant when the defendant fired the shot and, of course, then we have the
       testimony at the trial about how this transpired, and certainly Hall’s perception of
       it.

R. 101 (Banks Sentencing Hr’g Tr. at 5) (Page ID #1147). The district court then described the

elements of first-degree murder, before concluding that “[i]f you shoot at somebody, you just

miss them, but you intend to shoot them, or at least there’s every indication that you do, then

that’s attempted murder.” Id. at 8 (Page ID #1150).

       These factual findings were not clearly erroneous.          The district court relied on

information presented at trial and in Banks’s Presentence Report (“PSR”). Its account was

consistent with Hall’s version of events, an account which the government reiterated at

sentencing. See R. 101 (Banks Sentencing Hr’g Tr. at 30–31) (Page ID #1172–73). These facts

also support a legal finding that Banks acted with malice aforethought and premeditation. Banks

approached Hall, gun drawn. He fired at Hall “after Mr. Hall [had] surrendered the keys [to his

car] and [had] attempted to flee.” Id. at 31 (Page ID #1173). As the district court pointed out,

Banks could have fired a shot into the ground to scare Hall, but chose instead to fire directly at

him.

       Banks’s reliance on United States v. Morgan, 687 F.3d 688 (6th Cir. 2012), is not well

taken. Unlike Morgan, the government did not in this case request an upward departure from the

mandatory minimum for Banks’s § 924(c) conviction. Compare id. at 696 (remanding case



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Nos. 13-6536/14-5168, United States v. Strong et al.


because district court appeared to rely on same factor to apply attempted-murder cross-reference

and to “increase Morgan’s sentence under § 924(c)”), with R. 101 (Banks Sentencing Hr’g Tr. at

67) (Page ID #1209) (giving mandatory minimum sentence to Banks for § 924(c) conviction).

More importantly, unlike Morgan, the district court here also made a finding of specific intent.

See id. at 5–6 (Page ID #1147–48) (“It appears that the conduct referenced could be

characterized as an assault with intent to commit murder, attempted murder . . . . It appears the

defendant’s actions do meet the definition of attempted murder, and that does appear to be

correct.”). Banks’s objection is without merit.

                                   IV. STRONG’S CLAIMS

A. Sufficiency of the Evidence to Support Strong’s Conviction for Aiding and
   Abetting the Carjacking

       Strong claims that the evidence was insufficient to convict him of aiding and abetting a

carjacking. We have already stated the applicable standard of review for sufficiency-of-the-

evidence challenges. With respect to aiding and abetting, we have held that the “defendant

[must] in some sort associate himself with the venture, that he participate[] in it as something he

wishes to bring about, and that he seek by his action to make it succeed.” United States v. Davis,

306 F.3d 398, 409 (6th Cir. 2002) (internal quotation marks omitted).

       In Davis v. Lafler, 658 F.3d 525, 533–34 (6th Cir. 2011) (en banc), we rejected

defendant’s argument that there was insufficient evidence to support a conviction for aiding and

abetting a carjacking in violation of Michigan law. Id. at 534. In reaching this decision, we

pointed to a number of factors that made the carjacking in Davis different from that in Brown v.

Palmer, 441 F.3d 347 (6th Cir. 2006), where we sustained the defendant’s challenge to the

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Nos. 13-6536/14-5168, United States v. Strong et al.


sufficiency of the evidence. We noted, for instance, that “there was no evidence that Brown

arrived at the scene with the perpetrator,” while “Davis arrived at the scene with Washington [the

principal], raising a compelling inference that they were previously acquainted.” Id. at 533. In

addition, “the behavior of Brown and Davis before and during the carjacking differed

significantly. Brown engaged in no overt acts to indicate that he was involved in the crime,”

while Davis stood watch by a restaurant window. Id. “Another key difference between [Davis]

and Brown is that Davis fled the scene in the stolen vehicle.” Id. Davis was also found breaking

down the car for parts when police later apprehended him. Id.

       Although we are cognizant that Davis involved a state carjacking statute which came to

our court on habeas review (therefore requiring us also to apply AEDPA deference to Davis’s

claim), we find its analysis nonetheless instructive. Indeed, each factor discussed in Davis

appears to point in the government’s favor here. At trial, Hall testified that he saw Banks and

Strong walk down the street together, with both men approaching him in concert. R. 84 (Trial

Tr. at 395) (Page ID #607). Hall described Strong as standing “between the driveway and the

front of the house,” where “[h]e could see the back of the house and he could see the front of the

house.” Id. at 400 (Page ID #612). Strong was not, in other words, a passive observer—he

positioned himself so that he could have a full view of any passers-by. Strong’s lookout role

ended when Banks retrieved Hall’s keys, at which point both Strong and Banks got into Hall’s

Lexus and drove off, together. Police arrested the two men soon afterwards, while they were

driving the same car.




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Nos. 13-6536/14-5168, United States v. Strong et al.


         We are unconvinced by Banks’s statement, given to officers after arrest and introduced

by these officers at trial, that Strong “didn’t have anything to do with this. He was telling me to

stop and pull over.” R. 85 (Trial Tr. at 636) (Page ID #848). Taken alone, this statement might

have turned Strong’s claim into a closer call. See, e.g., Brown, 441 F.3d at 352 (noting that

“[t]he state [had] offered no evidence that Brown had ever met the gunman prior to arriving at

the gas station, that Brown possessed a weapon or handed one to the gunman, or that Brown

knew that the gunman was going to commit a robbery and carjacking”). Strong, however, also

made a number of phone calls from jail. During these calls, “he discussed how these events

would show people on the outside that he now meant business and how he would avoid these

charges or evade the charges because . . . Banks was going to take the charges for him because

there was no point in both of them being in custody.” R. 87 (Strong Sentencing Hr’g Tr. at 15)

(Page ID #1050). Strong further described events during the police chase and “essentially

suggested … that th[e] lady [they ran into] caused the accident.” Id. at 56 (Page ID #1091).

Strong did not challenge the admission of these calls into evidence at trial, and does not now

challenge their admissibility on appeal.     The district court concluded, based on the facts

described above, that “[t]his is not a case where any reasonable person, any person whose mind

is open to the evidence can find differently than the jury found.” Id. at 25 (Page ID #1060). We

agree.

B. Sufficiency of the Evidence to Support Strong’s § 924(c) Conviction

         Next, Strong contends that the evidence was insufficient to convict him of aiding and

abetting the brandishing and discharge of a firearm during and in relation to a crime of violence,


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Nos. 13-6536/14-5168, United States v. Strong et al.


in violation of 18 U.S.C. § 924(c). To prove aiding and abetting under § 924(c), the government

must show both an affirmative act and intent. Rosemond v. United States, 134 S. Ct. 1240, 1245

(2014). The affirmative-act requirement is met easily here. “[T]he commission of a drug

trafficking (or violent) crime is—no less than the use of a firearm—an essential conduct element

of the § 924(c) offense.” Id. at 1247 (internal quotation marks omitted). Carjacking is a violent

crime, and we have already determined that the evidence was sufficient to find Strong liable for

aiding and abetting that crime.

       Many of the facts discussed above also go to intent. Strong and Banks walked towards

Hall together, and Strong served as a lookout while Banks approached Hall with weapons drawn.

Strong might have wanted Banks to use only the taser but, “if a defendant continues to

participate in a crime after a gun was displayed or used by a confederate, the jury can

permissibly infer from his failure to object or withdraw that he had such knowledge.” Id. at 1250

n.9. Strong continued to participate by fleeing with Banks, and then, after his arrest, boasting

about his actions.    These facts were sufficient to satisfy the intent and affirmative-act

requirements.

C. Application of Cross-Reference Provision for Attempted Murder

       Finally, Strong argues that the district court improperly cross-referenced his felon-in-

possession conviction with attempted murder. On this point, because Strong is not contesting his

conviction for felon-in-possession, see Strong Appellant Br. at 24 n.8, the district court properly

looked first to U.S.S.G. § 2K2.1, which prescribes base offense levels for that offense. However,

“[i]f the defendant used or possessed any firearm or ammunition in connection with the


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Nos. 13-6536/14-5168, United States v. Strong et al.


commission or attempted commission of another offense,” see U.S.S.G. § 2K2.1(c), we are, as

we did with Banks, to look at § 2X1.1(a), which instructs us to apply “[t]he base offense level

from the guideline for the [other] substantive offense, plus any adjustments from such guideline

for any intended offense conduct that can be established with reasonable certainty.” The other

“substantive offense” here is attempted murder, U.S.S.G. § 2A2.1, not because Strong attempted

to murder Hall, but because Banks attempted to murder Hall. Under U.S.S.G. § 1B1.3, “the base

offense level” for “cross references in Chapter Two” “shall be determined . . . in the case of a

jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken

by the defendant in concert with others, whether or not charged as a conspiracy), [by] all

reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity . . . that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or responsibility for

that offense.” U.S.S.G. § 1B1.3(a)(1)(B). In other words, for Strong’s felon-in-possession

conviction, the district court held Strong to the base offense level of attempted murder, because

(1) he possessed a gun, and (2) he possessed this gun “in connection with the commission” of

Banks’s attempted murder of Hall, which was, according to the district court, a reasonably

foreseeable act in furtherance of the carjacking.

       Our review of this conclusion requires us to tackle three separate but related issues. First,

we must determine whether the district court properly invoked the cross-reference and relevant-

conduct provisions—i.e., whether the firearm that Strong used or possessed was “in connection

with the commission or attempted commission of another offense.” U.S.S.G. § 2K2.1(c). We


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Nos. 13-6536/14-5168, United States v. Strong et al.


review this decision de novo. United States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002).

Second, we must examine whether the district court clearly erred in finding Banks’s decision to

shoot at Hall to be reasonably foreseeable and in furtherance of the carjacking. Id. Third, we

must find that the district court made particularized findings on the record (1) that the decision to

shoot at Hall was within the scope of the agreement between Strong and Banks and (2) that the

decision to shoot was foreseeable to Strong. See United States v. Campbell, 279 F.3d 392, 399–

400 (6th Cir. 2002).

       We answer the first question in the affirmative. Although the district court determined

that Banks shot at Hall, we have held before that “the use of a firearm in related conduct can

trigger § 2K2.1(c)(1)’s cross reference to § 2X1.1’s enhancement provision even if the weapon

used in the enhancement conduct is not the same as the weapon used in the offense conduct.”

United States v. Howse, 478 F.3d 729, 732 (6th Cir. 2007). “[T]he district court may apply

Guidelines § 2K2.1(c)(1) [so long as] it finds a clear connection” between the firearms in

question. United States v. Settle, 414 F.3d 629, 634 (6th Cir. 2005). That clear connection has

been demonstrated here. Strong was convicted of possessing a revolver which was found at the

scene of his arrest, along with Banks’s semi-automatic pistol.

       Although a close call, we also think that the district court did not clearly err in finding

Banks’s decision to shoot at Hall to be reasonably foreseeable to Strong and in furtherance of the

carjacking. Our conclusion is guided by Commentary from the Guidelines, which states that “the

criminal activity that the defendant agreed to jointly undertake, and the reasonably foreseeable




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Nos. 13-6536/14-5168, United States v. Strong et al.


conduct of others in furtherance of that criminal activity, are not necessarily identical.” U.S.S.G.

§ 1B1.3 cmt. n.2. To illustrate this point, the Guidelines provide us with the following example:

       [T]wo defendants agree to commit a robbery and, during the course of that
       robbery, the first defendant assaults and injures a victim. The second defendant is
       accountable for the assault and injury to the victim (even if the second defendant
       had not agreed to the assault and had cautioned the first defendant to be careful
       not to hurt anyone) because the assaultive conduct was in furtherance of the
       jointly undertaken criminal activity (the robbery) and was reasonably foreseeable
       in connection with that criminal activity (given the nature of the offense).

Id. We find this situation analogous to the facts here. Both Strong and Banks approached Hall,

with Banks carrying a loaded gun. Banks also carried a taser; presumably, Banks would use the

taser first, but would use the firearm if things got out of hand. When things did in fact get out of

hand, Banks shot at Hall, and left after believing that Hall had been shot. Given both the nature

of this crime (the federal carjacking statute requires defendants to act “with intent to cause death

or serious bodily harm”) and the facts specific to this case, we think that Banks’s attempted

murder of Hall was reasonably foreseeable.

       Finally, we believe that the district court made findings on the record that were

sufficiently particularized. Under Campbell, “a district court must make two particularized

findings: (1) that the acts were within the scope of the defendant’s agreement; and (2) that they

were foreseeable to the defendant.” 279 F.3d at 399–400 (internal quotation marks omitted).

The district court clearly made findings with respect to foreseeability.       See R. 87 (Strong

Sentencing Hr’g Tr. at 7) (Page ID #1042) (“The fact is that this [the shot at Hall] was a clearly

foreseeable act.”). And, although the district court could have done a better job of outlining its

reasoning with respect to scope, we think its findings here were also sufficiently particularized.


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Nos. 13-6536/14-5168, United States v. Strong et al.


It noted, for instance, that “[t]he defendants went to the location with a plan.” Id. Although

“we’ll never know exactly what it was,” part of “[t]he plan was clearly to confront Hall and to

take things.” Id. After a brief scuffle, Hall “made the decision to try to get away, and Banks

discharged the firearm. The evidence preponderates in favor of the conclusion that the firearm

was discharged in an effort to stop Hall and that it was unsuccessful, but he didn’t know that.”

Id. at 8 (Page ID #1043) (emphasis added). The district court also concluded elsewhere at

sentencing that the evidence was sufficient to convict Strong of carjacking, a crime that, by

definition, requires an intent to cause serious bodily harm.      We have previously upheld a

defendant’s sentencing enhancement where the defendant’s partner brandished a gun and shot an

off-duty security officer during a robbery, see United States v. Brown, 55 F. App’x 753, 754 (6th

Cir. 2003), a crime similar to carjacking. See also United States v. Williamson, 530 F. App’x

402, 405–06 (6th Cir. 2013) (citing Brown and noting that defendant’s conduct can demonstrate

agreement to engage in robbery and that brandishing of weapon during robbery was reasonably

foreseeable). Thus, under the circumstances described above, we hold that the district court

complied with Campbell’s particularized-findings analysis.

       We recognize the tension in subjecting Strong to a base offense level for a crime that the

principal (Banks) has not even been convicted of committing. We recognize also that the

interplay between these provisions resulted in Strong’s receiving a substantially higher base

offense level than he otherwise would have received. But, after careful review, we hold that the

district court properly applied each Guidelines provision against Strong.




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Nos. 13-6536/14-5168, United States v. Strong et al.


                                      V. CONCLUSION

       Accordingly, we AFFIRM both Banks’s and Strong’s convictions and sentences.




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