                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0036n.06

                                           No. 13-3298

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Jan 16, 2014
UNITED STATES OF AMERICA,                           )                       DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE SOUTHERN DISTRICT OF
TYLER HAMILTON,                                     )       OHIO
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )


       BEFORE: COLE and GRIFFIN, Circuit Judges; PEARSON, District Judge.*


       PER CURIAM.

       Pursuant to a binding plea agreement that mandated a sentence of 60 to 120 months,

defendants Tyler Hamilton pleaded guilty to distributing heroin, in violation of 21 U.S.C.

§ 841(a)(1). The district court determined that, based on the amount of heroin involved in the

offense, Hamilton’s base offense level was 28. The court added two levels under U.S.S.G.

§ 2D1.1(b)(1) because Hamilton possessed a dangerous weapon and two levels under

§ 2D1.1(b)(2) for Hamilton’s use of violence. The court determined, however, that Hamilton

was ultimately subject to a base offense level of 38 under the cross-reference in § 2D1.1(d)(1)

because he killed a victim under circumstances that would constitute second-degree murder

under 18 U.S.C. § 1111 had the killing taken place in a federal jurisdiction. The district court

subtracted three levels for acceptance of responsibility, resulting in a total offense level of 35.

*
 The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 13-3298
United States v. Hamilton

Based on the total offense level of 35 and a criminal history category of II, Hamilton’s guidelines

range of imprisonment was 188 to 235 months. The district court sentenced him to 120 months

in prison. Hamilton now appeals his sentence.

       On appeal, Hamilton makes the following arguments: (1) the district court erred by using

the preponderance-of-the-evidence standard to determine whether he committed murder for

purposes of the cross-reference in § 2D1.1(d)(1); (2) the evidence did not support application of

the cross-reference under any standard; and (3) the district court miscalculated the drug quantity

attributable to him and erred by applying the two-level enhancement under § 2D1.1(b)(2).

       Because Hamilton did not argue in the district court that it was error to employ the

preponderance-of-the-evidence standard in connection with the cross-reference in § 2D1.1(d)(1),

we review the claim for plain error. See United States v. Morgan, 687 F.3d 688, 694 (6th Cir.

2012). The district court did not plainly err by employing the preponderance-of-the-evidence

standard because, as we have previously held, it was not required to use a higher standard. See

United States v. Brika, 487 F.3d 450, 461-62 (6th Cir. 2007) (“Thus, . . . we reaffirm our earlier

holding that due process does not require sentencing courts to employ a standard higher than

preponderance-of-the-evidence, even in cases dealing with large enhancements”); United States

v. Gates, 461 F.3d 703, 708 (6th Cir. 2006). (“We find that the district court committed no Fifth

or Sixth Amendment violation when it used the preponderance of the evidence standard.”).

       Hamilton next argues that, under any standard, the evidence did not support application

of the cross-reference in § 2D1.1(d)(1). When reviewing a district court’s application of the

sentencing guidelines, we review legal conclusions de novo and factual findings for clear error.

United States v. McCloud, 730 F.3d 600, 605 (6th Cir. 2013).              The cross-reference in

§ 2D1.1(d)(1) applies if a victim was killed under circumstances that would constitute murder


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No. 13-3298
United States v. Hamilton

under 18 U.S.C. § 1111 had the killing occurred in a federal jurisdiction.               U.S.S.G.

§ 2D1.1(d)(1).

       The district court did not clearly err by concluding that Hamilton shot and killed the

victim after their altercation had ended and the victim was lying on the ground outside of

Hamilton’s vehicle. At the sentencing hearing, the prosecution presented evidence that a witness

saw Hamilton and the victim engaging in an altercation in Hamilton’s vehicle. After the victim

was ejected from the vehicle, the witness saw Hamilton fire three shots at the victim while he

was on the ground trying to roll away from Hamilton. In addition, the district court’s findings

were consistent with other evidence in the record, including the trajectory of the fatal shot, the

lack of soot or stippling on the victim, and the pristine condition of a bullet found at the scene.

Based on the district court’s factual findings, it properly determined that Hamilton did not act in

self-defense and that he committed second-degree murder for purposes of the cross-reference in

§ 2D1.1(d)(1). See 18 U.S.C. § 1111(a).

       Finally, as Hamilton concedes, in his briefing on appeal, his challenges to the drug

quantity determination and two-level enhancement under § 2D1.1(b)(2) are moot, given that the

district court properly concluded that he was subject to a higher offense level under the cross

reference in § 2D1.1(d)(1).

       Accordingly, we affirm Hamilton’s sentence.




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