                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 08a0039n.06
                                 Filed: January 10, 2008

                                           No. 06-6260

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



                                     )
UNITED STATES OF AMERICA,            )
                                     )
           Plaintiff-Appellee,       )
                                     )            ON APPEAL FROM THE UNITED
v.                                   )            STATES DISTRICT COURT FOR THE
                                     )            WESTERN DISTRICT OF TENNESSEE
 DEMARCUS ROGERS,                    )
                                     )
      Defendant-Appellant.           )            OPINION
____________________________________ )
                                     )



       Before: DAUGHTREY, GILMAN, and COOK, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Demarcus Rogers pled guilty to being a felon

in possession of a firearm. He was charged with the offense after shooting Rico Coates four times

during an argument between them. The district court enhanced Rogers’s U.S. Sentencing Guidelines

range after finding by a preponderance of the evidence that (1) Rogers’s related conduct constituted

an assault with intent to commit first-degree murder, (2) Coates sustained life-threatening bodily

injuries, and (3) Rogers met the Guidelines’ definition of an Armed Career Criminal. Rogers was

sentenced to 327 months of imprisonment.

       He argues on appeal that the district court violated his Sixth Amendment right to trial by jury

when it found that his related conduct qualified as attempted first-degree murder. Rogers also

argues that, based on this finding, the district court improperly calculated his Guidelines range and
imposed an unreasonable sentence. For the reasons set forth below, we AFFIRM the judgment of

the district court.

                                         I. BACKGROUND

        In June of 2004, Rico Coates went to the residence of Thomas Scott to talk to Scott and

Rogers about some tire rims that had been stolen from Coates’s brother. The discussion escalated

into an argument. Rogers then pulled out a semi-automatic handgun and another pistol and shot

Coates multiple times. Coates was unarmed. After the first shot, Coates staggered to the front door

and fell to the ground outside. Scott attempted to intervene and stop Rogers, but Rogers shot Scott

in the hand. Rogers then exited the home, stood over Coates, and continued to shoot at him. Coates

was shot a total of four times—in the side, stomach, and twice in the thigh. When bystanders

rescued Coates by pulling him into a nearby car, Rogers continued to fire shots in the direction of

Coates until the car was out of range.

        Coates underwent two surgeries and had to remain in the hospital for nearly a month. When

Rogers was arrested, he had in his possession the semi-automatic weapon that he had used to shoot

Coates. Although Rogers admitted to shooting Coates, he claimed that he had acted in self-defense.

Rogers eventually told the police where they could find the second weapon used in the shooting.

In May of 2006, Rogers pled guilty to being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g).

        The Presentence Report (PSR) calculated Rogers’s base offense level under the Sentencing

Guidelines at 24 because the offense at issue was committed after he had amassed at least two felony

convictions for crimes of violence. Rogers’s offense level was then raised to 33 because the PSR

recommenced that the cross-reference for attempted murder be applied pursuant to Guidelines

§ 2A2.1. The PSR noted that § 2A2.1(a) was applicable because “the object of the offense

committed by [Rogers] on June 29, 2004, would have constituted first degree murder.” It further

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recommended an additional increase of four levels due to the “life-threatening” nature of Coates’s

injuries under Guidelines § 2A2.1(b). As a result, the PSR recommended that Rogers’s maximum

offense level be raised to 37, with a downward adjustment of 3 points for acceptance of

responsibility, bringing his final offense level to 34. The PSR also determined that Rogers qualified

as an Armed Career Criminal under Guidelines § 4B1.4.

       At Rogers’s sentencing hearing, the district court applied the “Cross-Reference” provision

of Guidelines § 2K2.1 to determine the offense level for Rogers’s 18 U.S.C. § 922(g) violation.

Section 2K2.1(c)(1) states that “[i]f the defendant used or possessed any firearm or ammunition in

connection with the commission or attempted commission of 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 [under 2k2.1].” Section 2X1.1(c)(1) in turn provides that “[w]hen

an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section,

apply that guideline section.”

       Based on the evidence before it, the district court found that Rogers’s firearms offense was

part of a course of conduct that culminated in the willful, intentional, and premeditated attempted

murder of Coates, and that a cross-reference to attempted murder as provided in Guidelines § 2A2.1

was therefore appropriate. Guidelines § 2A2.1(a) sets forth a base offense level of 33 “if the object

of the offense would have constituted first degree murder,” and a base offense level of 27

“otherwise.” In accordance with the finding that Rogers’s actions constituted attempted first-degree

murder, the court adjusted Rogers’s offense level to 33 and then adopted the PSR’s

recommendations for both a four-level enhancement due to the “life-threatening” nature of Coates’s

injuries and a three-level reduction for acceptance of responsibility.

       After determining that Rogers had a final offense level of 34 and a criminal history category

of VI, the district court calculated Rogers’s Guidelines sentencing range at 262-327 months of

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imprisonment. The court then sentenced Rogers to 327 months in prison and three years of

supervised release. This timely appeal followed.


                                          II. ANALYSIS

A.     Rogers’s Sixth Amendment claim

       We review constitutional challenges to a defendant’s sentence de novo. United States v.

Copeland, 321 F.3d 582, 601 (6th Cir. 2003). A defendant’s Sixth Amendment right to have a jury

determine the facts beyond a reasonable doubt, however, is limited to facts that increase a sentence

beyond the statutory maximum for the offense charged. Apprendi v. New Jersey, 530 U.S. 466, 490

(2000); United States v. Crowell, 493 F.3d 744, 749 (6th Cir. 2007). In the present case, Rogers

does not argue that the district court increased his sentence beyond the statutory maximum for being

a felon in possession of a firearm. He instead argues that the court violated his Sixth Amendment

right to a trial by jury when it found facts by a preponderance of the evidence that increased his

sentence beyond the conduct to which he admitted. Although Rogers acknowledges that Sixth

Circuit caselaw allows the court to make such factual findings, he asks us to reconsider that position.

This panel clearly has no authority to do so. See Salmi v. Sec’y of Health & Human Serv., 774 F.2d

685, 689 (6th Cir. 1985) (holding that a later Sixth Circuit panel may not overrule the decision of

a prior panel unless a subsequent decision of the Supreme Court requires modification of the earlier

decision or this court decides the new case en banc).

       Although the Supreme Court has yet to weigh in on the constitutionality of the

preponderance-of-the-evidence standard for factfinding regarding sentencing enhancements, the

caselaw in this circuit is unambiguous. In United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006),

for example, this court made clear that “using a preponderance of the evidence standard post-Booker

does not violate . . . the Sixth Amendment right to trial by jury.” See also United States v. Booker,


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543 U.S. 220, 232-33 (2005) (holding that a sentencing court is authorized to make factual findings

by a preponderance of the evidence in order to appropriately determine the advisory sentencing

range under the Guidelines).

       Moreover, this circuit recently held that there is no Sixth Amendment violation where a

district court applies a cross-reference to a crime not charged in the indictment based upon the

preponderance-of-the-evidence standard. United States v. Birka, 487 F.3d 450, 454-57, 459 (6th Cir.

2007) (applying a cross-reference for kidnaping to a charge of using a telephone to extort money

in exchange for the release of a kidnaped person). Because Sixth Circuit authority is contrary to

Rogers’s assertion that judicial factfinding at sentencing by a preponderance of the evidence is

unconstitutional, we reject his argument.

B.     The district court’s calculation of Rogers’s sentence

       Rogers asserts in the alternative that even if the preponderance-of-the-evidence standard is

constitutional, there was inadequate evidence to support the district court’s finding that he had the

intent required for first-degree murder under the United States Code. He argues that in light of this

error, his sentence is unreasonable because the district court miscalculated his Guidelines range.

       1.      Standard of review

       A determination of criminal responsibility is a mixed question of law and fact that we review

de novo. United States v. Whited, 473 F.3d 296, 297 (6th Cir. 2006). Facts employed by the district

court to find criminal responsibility, however, will not be set aside unless clearly erroneous. United

States v. Katzopoulos, 437 F.3d 569, 574 (6th Cir. 2006). Although we review the district court’s

application of the Guidelines de novo, United States v. Hicks, 4 F.3d 1358, 1361 (6th Cir. 1993), the

ultimate sentence is reviewed for reasonableness, which has both a procedural and a substantive

component. Gall v. United States, 128 S. Ct. 586, 596 (2007); United States v. Thomas, 498 F.3d

336, 339 (6th Cir. 2007).

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       The government argues that, because Rogers’s attorney failed to object to the district court’s

factual finding that Rogers’s actions constituted attempted first-degree murder, this court should

apply the plain-error standard rather than the de novo standard of review. See United States v.

McCreary-Reed, 475 F.3d 718, 721 (6th Cir. 2007) (holding that when a defendant fails to object

to an error of the court, this court reviews the issue under the plain-error standard). When

questioned about the nature of her objections, however, Rogers’s attorney made clear that she was

“alleging to the court that [the facts related to the attempted murder were] irrelevant to this

sentencing proceeding” under the Sixth Amendment and that such conduct should not be used to

increase Rogers’s sentence. As such, Rogers’s attorney effectively objected to the district court’s

use of the cross-reference provision of the Guidelines, and we will review that aspect of the district

court’s decision de novo. See Hicks, 4.F.3d at 1361.

       2.      Sufficiency of the evidence for the district court’s finding of
               attempted murder

       Application Note 1 to Guideline § 2A2.1 defines first-degree murder as “conduct that, if

committed within the special maritime and territorial jurisdiction of the United States, would

constitute first degree murder under 18 U.S.C. § 1111.” Pursuant to § 1111(a), “[e]very murder

perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and

premeditated killing . . . is murder in the first degree.” The question before us then, is whether the

district court clearly erred in finding by a preponderance of the evidence that Rogers attempted to

murder Coates with premeditation.

       As discussed above, the government’s proof supporting a greater Guidelines range need be

shown only by a preponderance of the evidence. United States v. Watts, 519 U.S. 148, 156 (1997);

United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006). Even if the district court does not make

detailed findings as to supporting facts, we may look to the record to determine whether the decision


                                                  6
was clearly erroneous. United States v. Miller, 161 F.3d 977, 984 (6th Cir. 1998) (holding that an

appellate court “may review the record before [it] to determine whether or not clear error exists”);

see also United States v. Washington, 127 F.3d 510, 515 (6th Cir. 1997) (reviewing the trial

transcript to determine the defendant’s role in commission of the offense).

       A review of the record in the present case demonstrates that the district court did not clearly

err in finding that Rogers’s actions constituted a willful and premeditated attempt to murder Coates

without justification. Rogers used two firearms to shoot Coates multiple times at close range. After

he shot Coates the first time, Rogers walked out of the apartment, stood over Coates, and fired three

more shots into his body. When Scott attempted to intervene, Rogers shot Scott in the hand and then

returned to targeting Coates. And when bystanders dragged Coates to a car to take him to the

hospital, Rogers continued his violent assault by shooting at Coates, the bystanders, and the car even

as it drove away. This course of conduct more than supports the finding that Rogers’s actions

constituted attempted first-degree murder.

       Moreover, caselaw in this circuit and others demonstrates that courts have applied the cross-

reference for assault with intent to commit first-degree murder under Guidelines § 2A2.1(a) to

similar, and in some instances less egregious, conduct. See United States v. McDaniel, 165 F.3d 29,

1998 WL 661106, *2, 5 (6th Cir. 1998) (cross-referencing to § 2A2.1(a) after finding that a

defendant who fired six shots at an officer’s leg within 10 seconds was attempting to commit first-

degree murder); United States v. Vaught, 133 F. App’x 229, 233-34, 2005 WL 1285644,*3-4 (6th

Cir. 2005) (affirming a district court’s application of § 2A2.1(a) where the a defendant was carrying

a gun near his sister’s apartment after making a threat to kill her, even though the defendant never

fired the weapon); United States v. Drew, 200 F.3d 871, 879 (D.C. Cir. 2000) (applying § 2A2.1(a)

where the defendant pointed a gun at the victim’s head but did not fire); United States v. Wilson, 992

F.2d 156, 158 (8th Cir. 1993) (affirming a cross-reference pursuant to § 2A2.1(a)(1) where the

                                                  7
defendant fired a shotgun out of a vehicle toward a group of people and hit a bystander). The district

court here did not clearly err when it found by a preponderance of the evidence that Rogers took

sufficiently premeditated actions to constitute attempted first-degree murder under 18 U.S.C. § 1111.

C.     The district court’s application of the Guidelines

       In light of the district court’s findings, it did not err in following Guidelines § 2A2, which

led the court to adjust Rogers’s base offense level to 33. Rogers raises no other challenges to his

sentence. We therefore conclude that his sentence is a reasonable one.


                                       III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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