                                                                                   F I L E D
                                                                            United States Court of Appeals
                                                                                    Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                     JUN 25 2003
                                     TENTH CIRCUIT
                                                                               PATRICK FISHER
                                                                                         Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                              No. 02-4223
 JERASON KUPFER,                                        (D.C. No. 00-CR-591-DKW)
                                                                 (D. Utah)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE and LUCERO, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Jerason Kupfer appeals his sentence arguing the district court erred in

its application of U.S.S.G. § 2K2.1(c)(1)(B). We affirm.

       The underlying facts of this case are set forth in detail in the district court’s order.


       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
ROA Vol. I, Doc. 66. Defendant pled guilty to possession of an unregistered firearm in

violation of 26 U.S.C. § 5861(d). At sentencing, the district court increased his offense

level pursuant to U.S.S.G. § 2K2.1(c)(1)(B) after finding defendant used an unregistered

firearm in connection with the commission of another offense which resulted in death.

Defendant was sentenced to a term of imprisonment of 46 months followed by 36 months

of supervised release.

       Defendant contends the district court erred in (1) rejecting his claim of self defense

and, alternatively, (2) in applying the base offense level for voluntary manslaughter rather

than for involuntary manslaughter. We review for clear error the district court’s factual

findings regarding sentencing and review de novo its legal interpretation of the

Guidelines. United States v. Maldonado-Acosta, 210 F.3d 1182, 1183 (10th Cir. 2000).

       U.S.S.G. § 2K2.1(c)(1)(B) states:

       (c) Cross Reference
              (1) If the defendant used or possessed any firearm or
              ammunition in connection with the commission or attempted
              commission of another offense . . . apply--
                      ....
                      (B) if death resulted, the most analogous
                      offense guideline from Chapter Two, Part A,
                      Subpart 1 (Homicide), if the resulting offense
                      level is greater than that determined above.

Thus, in order for this section to apply, the government must establish by a preponderance

of the evidence that defendant used a firearm in connection with the commission or

attempted commission of a crime which resulted in death. See United States v.


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Farnsworth, 92 F.3d 1001, 1010 (10th Cir. 1996). The district court concluded that the

cross reference applied because defendant used a firearm in the commission of the crimes

of assault, aggravated assault, and voluntary manslaughter. Defendant argues he acted in

self defense when he shot and killed the victim.

       We agree with the district court and reject defendant’s claim of self defense.

Under Utah law, a “person is justified in using force intended or likely to cause death or

serious bodily injury only if he or she reasonably believes that force is necessary to

prevent death or serious bodily injury.” Utah Code Ann. § 76-2-402(1). Further, “[a]

person is not justified in using force . . . if he or she . . . was the aggressor or was engaged

in a combat by agreement.” Id. § 76-2-402(2)(c)(i). Here, the record demonstrates that

defendant had no reason to reasonably believe that deadly force was necessary to prevent

death or serious bodily injury to himself or anyone else. Notwithstanding the heated

telephone exchange between defendant and the victim, there is no evidence the victim

made any verbal or physical threats toward defendant when he arrived at defendant’s

residence. Indeed, when the victim arrived, he stated that he “just want[ed] to party” and

even invited defendant to join them. ROA Vol. II at 113. Further, the evidence shows it

was defendant and not the victim who was the aggressor. During their telephone

conversation, defendant threatened the victim with the use of a firearm and dared the

victim to “come on down.” Id. at 114. After the victim arrived, defendant approached

him brandishing a sawed-off shotgun. It was not until after this threatening behavior that


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the victim started “back pedaling” and displayed and discharged his handgun. Id. at 66.

Moreover, even if we did not conclude that defendant was the aggressor, we would agree

with the district court’s conclusion that defendant and the victim “were, at the very least,

engaged in mutual combat which would also preclude application of self defense.” ROA

Vol. I, Doc. 66 at 10. We conclude the district court did not err in rejecting defendant’s

claim of self defense.

       Alternatively, defendant argues the district court erred in using the Sentencing

Guidelines range for voluntary manslaughter rather than the range for involuntary

manslaughter. Initially, we note that when the sentencing court applies the most

analogous offense guideline, “a perfect match is not required.” United States v. Fortier,

180 F.3d 1217, 1229 (10th Cir. 1999).

       Involuntary manslaughter “is the unlawful killing of a human being without

malice. . . [i]n the commission of an unlawful act not amounting to a felony, or in the

commission in an unlawful manner, or without due caution and circumspection, of a

lawful act which might produce death.” 18 U.S.C. § 1112(a). Defendant’s conduct was

both unlawful and a felony. In contrast, voluntary manslaughter “is the unlawful killing

of a human being without malice . . . [u]pon a sudden quarrel or heat of passion.” 18

U.S.C. § 1112(a). The evidence revealed that defendant was involved in a heated

telephone exchange with the victim and challenged him to “come on down.” ROA Vol. II

at 114. Further, shortly after the victim arrived, defendant learned the victim had


                                              4
allegedly sexually assaulted defendant’s sister. Defendant then approached the victim

brandishing the sawed-off shotgun. Based on these facts, we conclude that voluntary

manslaughter is the most analogous homicide guideline.

      AFFIRMED.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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