                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0589n.06

                                           No. 13-5908

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
UNITED STATES OF AMERICA,                        )                         Aug 04, 2014
                                                 )                     DEBORAH S. HUNT, Clerk
       Plaintiff - Appellee,                     )
                                                 )
v.                                               )     ON APPEAL FROM THE UNITED
                                                 )     STATES DISTRICT COURT FOR THE
                                                 )     WESTERN DISTRICT OF TENNESSEE
JUSTIN MICHAEL JAMES,                            )
                                                 )
       Defendant - Appellant.                    )



       Before: BATCHELDER, Chief Judge; and BOGGS and WHITE, Circuit Judges.

       BOGGS, Circuit Judge. Justin James pleaded guilty to being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). The district court applied what the Sentencing

Commission’s Guidelines Manual refers to as a “cross reference” and sentenced James in the

same manner as if he had committed attempted second-degree murder. James argues that

applying the cross reference was procedurally improper and that, even if it were proper, the

district court lacked sufficient evidence to sentence James under the attempted-murder cross

reference.   James also argues that his sentence was substantively unreasonable.          Because

applying the cross reference was procedurally appropriate and because the district court carefully

explained the evidentiary foundation for employing it, we affirm the district court’s sentence.




                                                1
                                                  I

                                                 A

        At sentencing, the parties accepted the facts stated in James’s presentence report. 1 On

May 30, 2012, James was at the apartment of his girlfriend, Tabron Houston. While James was

there, Percil Walls, also known as Pig, arrived. According to James, Walls had been fighting

with Houston, and Walls kicked down Houston’s apartment door, dragged her outside, and began

punching, kicking, and choking her.2 James stated that five minutes into Walls’s attack on

Houston, he ran toward Walls, who fled. According to James, he and several companions then

left in a car for a store.

        James stated that, while he was away, Houston called to inform him that Walls had

returned and “busted” her window. According to James, he returned to check on Houston and

saw Walls running from the broken window. James stated that he “kind of got out of the car

window” on the passenger side and fired one shot “up in the air.” The bullet struck a parked car.

        The Memphis Police Department responded to a report of gunshots at Houston’s

apartment complex.           Officers stopped and searched James’s vehicle, which matched the

description provided to them. In the trunk, officers found a black .40-caliber handgun and a

loaded magazine.




1
  The United States Probation Office prepared the report using the 2012 edition of the United
States Sentencing Commission Guidelines Manual.
2
  According to the government: “Officers learned from the domestic violence victim Tabron
Houston that the defendant and his friends were at her apartment when her ex-boyfriend Percil
Walls (hereinafter ‘victim’) arrived and physically assaulted her.” Appellee Br. 5. Like the
district court, we decline the government’s invitation to refer to Walls as “victim.” A best
practice in federal litigation, even where the record supports an epithet, “is usually to lay out the
facts and let the court reach its own conclusions.” Bennett v. State Farm Mut. Auto. Ins. Co., 731
F.3d 584, 585 (6th Cir. 2013).
                                                  2
       Officers subsequently obtained a surveillance video of the incident. According to the

presentence report, the video depicted a car entering the apartment complex and a man walking

on the sidewalk. As the car approached the pedestrian, a man in the car climbed out of the front

passenger window and fired a shot over the top of the car in the direction of the pedestrian.

Several individuals ran from the scene. Officers identified James as the shooter in the video.

James is a convicted felon.

                                                B

       On March 22, 2013, James pleaded guilty, without a plea agreement, to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). His presentence report determined

that U.S.S.G. § 2K2.1 provided the base offense level for the sentencing of offenses under

18 U.S.C. § 922(g). Because James had a prior felony conviction for either a crime of violence

or a controlled-substance offense, his base offense level would have been 20, under

§ 2K2.1(a)(4). But the presentence report noted that § 2K2.1(c) instructs that a sentencing court

should apply a “cross reference” if the defendant used a firearm in connection with the

commission or attempted commission of another offense. The presentence report determined

that James possessed a firearm in connection with attempted murder, and it therefore assigned

him a base offense level of 27, under § 2A2.1(a)(2), the guideline applicable to attempted

second-degree murder. After a three-level reduction for acceptance of responsibility under

§ 3E1.1, James’s offense level was 24. The presentence report assigned James six criminal-

history points, which corresponded to a criminal-history category of III. An offense level of 24

and a criminal-history category of III resulted in a guideline range3 of 63–78 months for James.



3
 Here, we use the term “sentencing range” synonymously with “§ 5A guideline range,” i.e., to
describe the range derived from the Sentencing Table in § 5A that corresponds to a defendant’s
base offense level (factoring in any relevant adjustments) and criminal-history category before
                                                3
       On June 28, 2013, the district court held a sentencing hearing. At sentencing, James

objected to the application of the cross reference of § 2A2.1(a)(2) for attempted second-degree

murder.4 The government provided evidence to support applying the cross reference. The

district court found that the evidence supported applying the cross reference and stated its

reasoning on the record.

       At sentencing, the government objected to a three-level—rather than a two-level—

reduction for acceptance of responsibility. The government’s rationale was that “the government

had to introduce witnesses and testimony” to justify applying the attempted-murder cross

reference. The district court granted the government’s motion for only a two-level acceptance-

of-responsibility reduction. This resulted in a total offense level of 25 and a criminal-history

category of III, which corresponded to a guideline range of 70–87 months. After allocution and

analysis of the § 3553 factors, the district court sentenced James to 80 months of imprisonment.

       On appeal, James argues that applying the § 2A2.1(a)(2) cross reference was procedurally

inappropriate because the act of attempting second-degree murder does not facilitate the

underlying violation of § 922(g)(1), i.e., being a felon in possession of a firearm. He also argues

that the evidence was insufficient to show that he possessed the mens rea of intending to cause

death, a necessary element of attempted murder. Additionally, James argues that his sentence is

substantively unreasonable because it is longer than necessary to accomplish justice.




incorporating any relevant statutory minimum. See United States v. Joiner, 727 F.3d 601, 602
n.1 (6th Cir. 2013). This is the range determined after applying step 7 of U.S.S.G. § 1B1.1(a).
We have held, however, that the term “applicable guideline range” is a term of art that refers to
the range that results from applying all eight steps of § 1B1.1(a). Id. at 604–05.
4
  James also raised this objection prior to sentencing in his objections to the presentence report.
                                                4
                                                 II

       We review de novo a district court’s legal conclusions underlying the guideline range

chosen, and we review for clear error the court’s factual findings. United States v. Bolds,

511 F.3d 568, 579 (6th Cir. 2007).

                                                III

          A. Application of the Cross Reference for Attempted Second-Degree Murder

                                                 1

       James argues that the district court committed procedural error in determining his

guideline range using the guideline for attempted second-degree murder. As in other cases

interpreting the Guidelines, this case requires us to navigate the Manual’s structure with a careful

reading of its language.

       The Guidelines Manual’s statutory index specifies § 2K2.1 as the guideline section

applicable to convictions under 18 U.S.C. § 922(g). U.S.S.G. app. A. This section assigns an

offense level for a defendant convicted of unlawful possession of firearms.             Ordinarily,

defendants receive a base offense level of 20 if they possessed a firearm as a felon previously

convicted of either a crime of violence or a controlled-substance offense. § 2K2.1(a)(4)(A). But

§ 2K2.1 also provides for a “cross reference,” under which the sentencing court must apply

U.S.S.G § 2X1.1 “[i]f the defendant used or possessed any firearm . . . in connection with the

commission or attempted commission of another offense.” § 2K2.1(c)(1)(A).5 The Manual

defines “another offense” as “any federal, state, or local offense . . . regardless of whether a

criminal charge was brought, or a conviction obtained.” § 2K2.1 cmt. n.14(C).




5
  This instruction contains a proviso not relevant in this case: it only applies “if the resulting
offense level is greater than that determined” otherwise under § 2K2.1. § 2K2.1(c)(1)(A).
                                                 5
         Section 2X1.1, in turn, assigns offense levels for offenses of attempt, solicitation, or

conspiracy not covered by a specific offense guideline. § 2X1.1(b). This section, furthermore,

contains its own cross-reference provision: “When an attempt, solicitation, or conspiracy is

expressly covered by another offense guideline section,” the sentencing court must apply that

guideline section. § 2X1.1(c). Because § 2A2.1 expressly covers the offense of attempted

murder, a sentencing court must apply that section rather than § 2X1.1(b). Under § 2A2.1, a

defendant receives a base offense level of 27 for attempted second-degree murder. § 2A2.1(a)(2).

       Additionally, § 1B1.3, titled “Relevant Conduct (Factors that Determine the Guideline

Range),” restricts how a sentencing court may apply the Manual’s various cross-reference

provisions. The section provides, in relevant part, that “cross references . . . shall be determined

on the basis of . . . all acts . . . that occurred during the commission of the offense of conviction.”

§ 1B1.3(a)(1)(A).

       James argues that his conduct does not satisfy the Manual’s definition of “relevant

conduct” because attempted second-degree murder is not a crime that facilitates a violation of

§ 922(g)(1), being a felon in possession of firearms. Under James’s reading of § 1B1.3(a)(1), a

sentencing court should ask “whether the conduct alleged facilitated the defendant’s completion

of his or her criminal acts that led to an indictment and conviction.” Appellant Br. 17–18

(emphasis added). Under James’s theory, his shooting the gun cannot be “relevant conduct”

because he did not do so “in an effort to complete the act that led to his conviction.” Appellant

Br. 19 (emphasis added).

       The problem with James’s argument is that it imposes a restriction on “relevant conduct”

that does not exist in the Manual. Nothing in the language of § 1B1.3 suggests that the alleged

conduct must facilitate or further the underlying offense of conviction. And James points us to



                                                  6
no case that has so interpreted “relevant conduct.” James cites United States v. Mayle, 334 F.3d

552 (6th Cir. 2003), in which we held that the sentencing court properly determined that a

murder committed “in order to facilitate [a] fraud offense” was relevant conduct under

§ 1B1.3(a)(1). Id. at 564. Nothing in Mayle suggests, however, that the alleged conduct need

always further the offense of conviction. In fact, even in Mayle, the dispositive finding for the

court was that the murder “was conduct that occurred during the commission of the fraud

offense,” which is the actual language of § 1B1.3(a)(1). Mayle, 334 F.3d at 564 (emphasis

added). James also relies on a statement in United States v. Scolaro, 299 F.3d 956, 957 (8th Cir.

2002): “The plain meaning of [§ 1B1.3(a)(1)] contemplates conduct taken prior to, and in order

to facilitate, the charged offense.”      Again, nothing in Scolaro suggests that § 1B1.3(a)(1)

requires that the relevant conduct facilitate the charged offense. Because James allegedly shot at

Walls “during the commission of the offense of conviction”—i.e., while being a felon in

possession of a firearm—the district court properly applied § 2A2.1(a)(2) as a cross reference for

attempted second-degree murder.

                                                   2

        James also argues that we “should not continue to allow defendants to be subjected to

[the] practice” of being sentenced based on uncharged conduct. This view has support from

some jurists. See United States v. Booker, 543 U.S. 220, 288 (2005) (Stevens, J., dissenting,

joined by Souter & Scalia, JJ.) (“[I]ncreasing a defendant’s sentence on the basis of conduct not

proved at trial . . . is contrary to the very core of Apprendi. . . . [C]ertain applications of ‘relevant

conduct’ sentencing are unconstitutional.”); United States v. Miller, 910 F.2d 1321, 1331–32 (6th

Cir. 1990) (Merritt, J., dissenting) (“Almost the entire spectrum of Fifth and Sixth Amendment

rights granted to the accused are denied by the literal reading and enforcement of [the ‘relevant



                                                   7
conduct’ provision] because, according to its procedure, a defendant may never be informed of

the specific charge against him until the probation report issues. . . . The real charge for which

the defendant will be sentenced will be drawn up in the probation office, and the sentence will be

imposed without the right of confrontation at the sentencing hearing by the court on the basis of

hearsay information.”).

       These views, however, do not represent prevailing law. Our task on appeal is limited to

considering whether the district court’s application of the cross reference was correct under

existing law. It is. The Manual itself states that under § 1B1.3(a)(1), the “relevant conduct”

“focus is on the specific acts and omissions for which the defendant is to be held accountable in

determining the applicable guideline range, rather than on whether the defendant is criminally

liable for an offense.” § 1B1.3 cmt. n.1. And James himself recognizes that binding precedent

forecloses his argument. See Appellant Br. 19. We have repeatedly held that the Manual allows

uncharged conduct to form the basis for the base offense level and that such action is

constitutional. United States v. Shafer, 199 F.3d 826, 830 (6th Cir. 1999) (“Our cases have

interpreted the relevant conduct provision of § 1B1.3(a)(2) to include conduct of a criminal

nature for which a defendant could not otherwise be held criminally liable.”); United States v.

Davern, 970 F.2d 1490, 1494 (6th Cir. 1992) (en banc) (“The law in this Circuit is clear that a

base offense level is determined by the amount of drugs included in the defendant’s relevant

conduct, not just amounts in the offense of conviction or charged in the indictment.”); Miller,

910 F.2d at 1327 (majority opinion); United States v. Smith, 887 F.2d 104, 108 (6th Cir. 1989);

see also United States v. Sanchez, 527 F. App’x 488, 492 (6th Cir. 2013) (“Circuit precedent is

clear: the use of a firearm is relevant conduct that can trigger § 2K2.1(c)(1)’s cross reference to




                                                8
§ 2X1.1’s enhancement provision even if the weapon used in the related conduct is different

from the weapon that formed the basis for the § 922(g) offense,” under certain circumstances.).

       James argues, however, that the Supreme Court’s recent decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013), calls into question the practice of sentencing defendants based on

uncharged conduct. Alleyne held that “any fact that increases the mandatory minimum is an

‘element’ that must be submitted to the jury.” Alleyne, 133 S. Ct. at 2155. James correctly notes

that Alleyne is not directly controlling because the Court’s holding involved “facts that increase

mandatory minimum sentences,” id. at 2163, and that the conduct at issue in his case—attempted

murder—did not increase a mandatory minimum sentence. See Appellant Br. 22. There is no

statutory minimum sentence for the felon-in-possession offense. The government states that the

rule of Alleyne does not apply to James because the use of the attempted-murder guideline in

sentencing for the felon-in-possession offense was only an “enhancement” based on “a guideline

provision, not a statutory provision.” Appellee Br. 18. Sentencing James based on a finding of

attempted murder rather than simply for the convicted offense, however, had the effect of more

than doubling James’s guideline range.6 The government goes further, stating: “The Apprendi

rule does not extend to guideline determinations that do not change the statutory range, as long

as the district court considers the guidelines to be advisory and not mandatory.” Ibid. The

government, however, fails to contend head on with Alleyne, the Court’s most recent statement

on the Apprendi doctrine.




6
  The district court determined that James’s guideline range was 70–87 months. If James’s base
offense level did not derive from the attempted-murder guideline, his base offense level under
§ 2K2.1 would have been 20. Assuming the district court would have again granted the same
two-level reduction for acceptance of responsibility, James’s total offense level would have been
18, resulting in a guideline range of 33–41 months.
                                                9
       It is true that Alleyne contains expansive language suggesting that the Court may be

rethinking the precise contours of the Apprendi doctrine. “When a finding of fact alters the

legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part

of a new offense and must be submitted to the jury. It is no answer to say that the defendant

could have received the same sentence with or without that fact.” Alleyne, 133 S. Ct. at 2162

(emphasis added). In Alleyne, the defendant was convicted of using a firearm in relation to a

crime of violence under 18 U.S.C. § 924(c)(1)(A). The statute authorizes a sentence of five

years to life; if the firearm is brandished, the authorized sentence is seven years to life. See

Alleyne, 133 S. Ct. at 2155. In Alleyne, the sentencing court treated brandishing as a sentencing

factor that it could find by a preponderance of the evidence, and it sentenced the defendant to

seven years of imprisonment. Id. at 2156. The Court held that this was impermissible “because

the legally prescribed range is the penalty affixed to the crime . . . [and] that a fact increasing

either end of the range produced a new penalty and constitutes an ingredient of the offense.” Id.

at 2160. The dissent objected that the seven-year sentence could have been statutorily imposed,

with or without a judicial finding of brandishing, because the jury’s verdict alone authorized a

sentence of five years to life. Id. at 2169–70 (Roberts, C.J., dissenting). For the majority,

however, “this fact [was] beside the point,” and it rejected this reasoning. Id. at 2162, 2162 n.3

(majority opinion).

       Somewhat similar logic applies here. Sentencing James to 80 months of imprisonment is

presumably permissible because the authorized sentence is up to 120 months. § 924(a)(2). The

sentencing court could have legally imposed a sentence of 80 months of imprisonment, with or

without applying the attempted-murder cross reference. Yet the Alleyne majority rejected this

reasoning.



                                                10
       The advisory nature of the guidelines system may also not be a dispositive answer to

James’s claim.     In another sentencing-law case last term, the Court recognized that the

guidelines, in practice, at least drive, if not determine, a defendant’s sentence. See Peugh v.

United States, 133 S. Ct. 2072, 2083 (2013). In Peugh, the Court held that sentencing a

defendant under a version of the Manual promulgated after commission of the criminal act

violates the Ex Post Facto Clause. Id. at 2078. In doing so, the Court acknowledged that in

usual cases, a sentencing court will impose a within-guidelines sentence. Id. at 2083. “That a

district court may ultimately sentence a given defendant outside the Guidelines range does not

deprive the Guidelines of force as the framework for sentencing.” Ibid. The Court recognized

the reality that a sentence outside the guideline range is often unlikely.7 Id. at 2083–84. The

dissent objected that the “Guidelines do not constrain the discretion of district courts and, thus,

have no legal effect on a defendant’s sentence.” Id. at 2089. The Court rejected this reasoning,

at least for ex post facto purposes.8 See id. at 2086–87.

       Additionally, Justice Thomas, writing for four Justices in Part III-A of Alleyne, went even

further, stating that a “well-established,” early American practice was “including in the

indictment, and submitting to the jury, every fact that was the basis for imposing or increasing

punishment.” Alleyne, 133 S. Ct. at 2159 (plurality opinion as to Part III-A) (emphasis added).

Justice Thomas wrote: the “defendant’s ability to predict with certainty the judgment from the

face of the felony indictment flowed from the invariable linkage of punishment with crime.” Id.

at 2160 (quoting Apprendi, 530 U.S. at 478).



7
  “In less than one-fifth of cases since 2007 have district courts imposed above- or below-
Guidelines sentences absent a Government motion.” Peugh, 133 S. Ct. at 2084.
8
  The Court indicated that its holding in Peugh should not cast doubt on its Sixth Amendment
sentencing cases because “the Sixth Amendment and Ex Post Facto Clause inquiries are
analytically distinct.” Peugh, 133 S. Ct. at 2088.
                                                11
       Although Justice Thomas’s opinion carries some force here, we decline to extend Alleyne

beyond its four corners for three reasons. First—and foremost—we believe that if the Court

wished in Alleyne to create a sea change in sentencing practice, it would have said so expressly.

Second, the Alleyne Court observed that its ruling “does not mean that any fact that influences

judicial discretion must be found by a jury.” Id. at 2163. Arguably, following the guidelines by

referring to an uncharged offense does more than “influence” judicial discretion, but the point

remains. Third, four post-Alleyne unanimous panels of this court have taken for granted that the

rule of Alleyne applies only to mandatory minimum sentences. See Rogers v. United States,

561 F. App’x 440, 443 (6th Cir. 2014) (unpublished) (district court did not violate defendant’s

Sixth Amendment jury-trial right when it applied a cross reference to the attempted-murder

guideline because Alleyne does not “require that every fact giving rise to [a] cross-reference in

[a] guidelines calculation be submitted to a jury and found beyond a reasonable doubt.”) ; United

States v. Harris, 552 F. App’x 432, 440 n.4 (6th Cir. 2014) (unpublished) (“The judicial fact-

finding here did not affect the statutorily authorized penalties, so Alleyne is not implicated.”);

United States v. Cook, 550 F. App’x 265, 275 (6th Cir. 2014) (unpublished) (Alleyne does not

require reversal of sentence because “[n]o statutory mandatory minimum applied to his

convictions for being a felon in possession of a firearm.”); United States v. Johnson, 732 F.3d

577, 584 (2013) (“Alleyne did not extend Apprendi to facts that do not increase the prescribed

statutory penalties.” ). Although it may be troubling to some that the Guidelines Manual

instructs sentencing courts to substitute the cross-referenced offense for the conduct actually

charged, effectively resulting in an enhanced sentence for a completely different offense, having

closely considered Alleyne’s language, we now affirm our pre-Alleyne holdings that a sentencing

court may determine an offense level by cross-referencing a guideline for an uncharged offense.



                                               12
Until the Supreme Court directly revisits this issue, the best practice is to remain within the four

corners of Alleyne. Accordingly, applying the attempted-murder cross reference was proper.

                                  B. Sufficiency of the Evidence

       James also argues that there was insufficient evidence for the district court to find that he

possessed the requisite mens rea to commit attempted murder. James correctly states that at

common law, “[a]lthough 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); accord Merritt v. Commonwealth, 180 S.E. 395, 399 (Va. 1935) (“To commit

murder, one need not intend to take life; but to be guilty of an attempt to murder, he must so

intend. It is not sufficient that his act, had it proved fatal, would have been murder.”). For the

district court to employ the attempted-murder cross reference, it needed to find by a

preponderance of the evidence that James intended to kill Walls. See United States v. Gates,

461 F.3d 703, 708 (6th Cir. 2006).

       At the sentencing hearing, James accepted the facts in the presentence report but objected

to the government’s determination that the facts constituted attempted murder. James admitted

that, consistent with the presentence report, he shot “in the air” but that the bullet hit a parked

car. The government characterized the facts differently and argued that James shot the gun with

the intent to kill Walls.       The district court did not simply accept the government’s

characterization. It stated: “If there’s an objection . . . with respect to the facts, whether or not

the facts amount to . . . an attempt[ed] murder, I would have to receive some proof on that to

make the final decision.” The district court also stated that James’s objection “shift[ed] the

burden of proof really on the government” and that the government was “going to have to prove”

attempted murder.



                                                 13
        At James’s sentencing, the government called three witnesses, and James cross-examined

each. The government also introduced the surveillance video into the record. At the close of

evidence, the district court afforded both the government and James an opportunity to argue their

positions in light of the evidence presented. James argued that the evidence did not prove a

specific intent to kill. The district court detailed the evidence in the record and concluded that

James possessed the intent to kill. It stated:

        The video was just compelling. It is just obvious. . . . [I]t’s obvious on the video
        what [James] does. It’s compelling. He is on the side of the car away from
        [Walls]. He comes out of the window, and y’all correct me if I am wrong, but this
        is what I saw on the video, he comes out of the window, actually looks like he sits
        on the door with his arm over the top of the roof of the car aiming across towards
        where [Walls] is.

Additionally, the district court addressed and rejected James’s characterization that he shot “in

the air.” It stated:

        Shots fired, not in the air – yes, any shot goes in the air, so I guess – technically, I
        guess it was shot in the air, but . . . when you shoot in the air, you are shooting
        upward. And his arm is laying on the roof of the car in the direction of where the
        ex-boyfriend was, and [a shot is] fired, and it hits an SUV. It doesn’t hit the roof
        of a building. It doesn’t hit the upstairs window of a building or a tree, it hits a
        vehicle parked on the driver’s side.

        James argues that the district court’s language suggests that it found that he acted

recklessly toward others and not specifically toward Walls, which would be insufficient to

support attempted murder. Appellant Br. 25. James highlights the following statement by the

district court:

        I also make note that when that car came around there and shots fired, all the
        other people that were out there ran for their lives. I don’t know if y’all noticed
        that. The two guys that were on the side of the building, they ran for their lives
        because they knew what was happening, and so just based on the proof that was
        presented and that video, I’m sorry, at least there was an assault with an intent to
        commit a second degree murder.




                                                  14
Ibid. James quotes this statement out of context. In context, it is evident that the district court

described the reaction of bystanders chiefly as evidence that James fired the gun parallel to the

ground, such that the shot could have hit Walls, and not, as James argued, “into the air.” James

also notes that the presentence report lists “society” as the victim of his offense. But there is no

evidence that the district court placed any weight on this. The district court’s finding that James

had the specific intent to kill Walls was not clear error. The district court’s review of the

evidence was thorough and nuanced.

                                 C. Substantive Reasonableness

       James argues that his 80-month sentence overemphasized the seriousness of the offense

because the application of the attempted-murder cross reference, along with the district court’s

emphasis on the seriousness of the offense in its § 3553(a) analysis, resulted in impermissible

“double-counting [of] James[‘s] offense conduct.” Appellant Br. 30.

       We review the substantive reasonableness of a defendant’s sentence “under a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).

       As noted, the district court determined that James’s guideline range was 70–87 months.

The district court stated that it must consider the sentencing goals provided in 18 U.S.C.

§ 3553(a). The court afforded a chance to speak to James, his counsel, and the prosecutor. The

court specifically considered “the history and characteristics of the defendant involved,”; James’s

“criminal history . . . [which was] not the worst criminal [history] I have seen,” ibid.; James’s

background, upbringing, and family; James’s “physical condition,”; his “mental and emotional

health,”; his education; employment history; and the seriousness of the offense and the need to

promote respect for the law.




                                                15
       Because James’s sentence was within the guideline range, we apply a “presumption of

reasonableness.” United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc); accord

Gall, 522 U.S. at 51; Rita v. United States, 551 U.S. 338, 347 (2007). James has not overcome

this presumption. “The fact that the appellate court might reasonably have concluded that a

different sentence was appropriate is insufficient to justify reversal of the district court.” Gall,

522 U.S. at 51.

       James argues the sentence is unreasonable because the sentence double counts his

conduct, i.e., shooting at Walls. But no impermissible double counting occurred. The district

court did not depart upward from the sentencing range, and the sentence imposed was near the

mid-point of the guideline range. James also faults the district court for failing to compare his

sentence to those of other defendants convicted of the same crime under similar circumstances.

There is no requirement that a sentencing court conduct a side-by-side comparison on the record.

“[T]he district judge should . . . consider all of the § 3553(a) factors,” Gall, 552 U.S. at 49–50,

but it need not “refer explicitly to each of the statutory sentencing factors when imposing a

sentence,” United States v. Simmons, 587 F.3d 348, 358 (6th Cir. 2008). Because the district

court did not abuse its discretion in sentencing James to a within-guidelines sentence of

80 months, we find that the sentence is substantively reasonable.

                                                IV

       The district court properly applied the attempted-murder cross reference because

“relevant conduct,” under § 1B1.3(a), need not facilitate the underlying offense. It need only

“occu[r] during the commission of the offense of conviction.” § 1B1.3(a). Additionally, Alleyne

does not alter our long-established holding that a defendant may be sentenced for uncharged

conduct. We, therefore, AFFIRM the district court’s sentence.



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