Today the Sixth Circuit decided United States v. Morgan, a case where a drug dealer shot at police who were executing a warrant on his apartment. He was charged with possessing marijuana with intent to distribute, possession of a firearm by an unlawful user of drugs, and 924(c) for his use of the gun. The district court enhanced the defendant’s 924(c) count to a 10 year mandatory minimum because he fired the gun, the court applied a 2 year upward departure to the 924(c) count apparently because the defendant fired the gun at the police, and then the court applied a cross-reference on the unlawful firearm possession because firing the gun towards the police constituted attempted murder. One act equals two charges and three enhancements.
The Sixth Circuit granted some relief by holding that it would be impermissible double counting for the district court to base both the attempted murder enhancement and the 924(c) upward departure on the fact that the defendant shot the gun towards the police. The Sixth Circuit also took issue with the district court’s application of the attempted murder cross-reference based on the court’s conclusion that the defendant was “able to form the intent” to murder, as opposed to actually finding that the defendant did form that intent. Under federal law, attempted murder requires that the defendant actually form the intent to kill.
On a final note, the Sixth Circuit made a rather interesting use of the Bostic question. Normally, if the court asks the Bostic question and the defense attorney does not raise a procedural reasonableness objection, that objection is waived. In Morgan, the Court held that if the district court raises an issue sua sponte, there is no need to respond to the Bostic question. The Court reasoned that the purpose of the Bostic question is to bring an issue to the district court’s attention, and if the district court raised the issue on its own, there is no need to bring that issue to the court’s attention.