Cross-Referencing to Achieve a Higher Sentence

By: Julie Vandegrift, Paralegal for Federal Defender Services of Eastern Tennessee, Inc., Chattanooga

U.S.S.G. § 2K2.1, the guideline for being a felon in possession of a firearm, contains a section which allows for cross-referencing "if the defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense" or with the knowledge that it would be so used. U.S.S.G. § 2K2.1(c). If the case fits that criteria, § 2X1.1 is used instead of § 2K2.1, if the resulting offense level is greater. The sentence calculation then crosses to the guideline for that other offense. As an example, if a felon possessed a firearm or ammunition during a murder, the murder guideline is used instead of the felon in possession guideline if it will result in a higher sentence. Based on this, a defendant convicted of being a felon in possession of a firearm or ammunition can serve a sentence for murder without ever being charged or convicted for the murder. No jury, no plea, no beyond a reasonable doubt.

More and more, defendants guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), are finding themselves receiving a sentence under the guideline for some other crime. That statement begs the question, how could this be happening? The answer is simply, through the federal Sentencing Guidelines, despite Supreme Court holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

In Booker, the Supreme Court extended its holding in Blakely to the federal Sentencing Guidelines, reaffirming the holding in Apprendi that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Booker, 125 S. Ct. at 756. The Booker requirement seemingly conflicts with earlier decisions that approve of cross-referencing to sentences for a crime different from that charged, and based solely on facts found under the preponderance of the evidence standard.

Under the Fifth Amendment of the United States Constitution, "[n]o person shall be held to answer for a capital, or otherwise infamous crime . . . without due process of law." In an insightful concurrence years before Apprendi, Blakely or Booker, Senior Circuit Judge Heaney wrote on this very issue in a felon in possession case, stating "[t]his case is but another in a growing list of cases in which the government charges an offender as a felon in possession with the knowledge that if the offender is convicted or pleads guilty to that charge, the sentencing will turn on some state law offense that the government will attempt to prove through hearsay at the sentencing hearing." United States v. Fleming, 8 F.3d 1264, 1267 (8th Cir. 1993). Judge Heaney further stated, "I remain firmly convinced that the use of so-called relevant conduct in this context violates Fleming’s right to due process of law." See also United States v. Wilson, 992 F.2d 156, 159 (8th Cir. 1993). "This sentencing regime turns federalism on its head, but more importantly, it violates the offender’s right to due process." Fleming at 1267. The state law conduct should be charged in state court where the defendant "would have the right to a jury trial, to confront witnesses, and to have the necessary findings made beyond a reasonable doubt." Fleming at 1267, quoting Wilson at 159. Apparently, many circuit courts do not feel the same as the cross-referencing to § 2X1.1 is being affirmed across the country.

The Sixth Amendment of the United States Constitution states an accused has the right to an impartial jury "and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor." Interestingly, the Sixth Circuit Court of Appeals has concluded in one case that application of a cross-reference based on judicially-determined facts violates the Sixth Amendment. In United States v. Smith, 404 F.3d 1019 (6th Cir. 2005), based upon an attempted robbery, the defendant was charged and tried for being a felon in possession of a firearm. Smith at 1021. The jury was instructed on more than one occasion that the only issue there was the defendant’s guilt on the felon in possession of a firearm charge. Id. The defendant was found guilty under 18 U.S.C. § 922(g). Id. In the Presentence Report, the probation officer in Smith determined that the defendant used the firearm in connection with an attempted robbery and applied the cross-reference to U.S.S.G. § 2X1.1, which in turn led to the robbery guideline. Smith at 1022. Instead of being placed at a base offense level of 14, with a criminal history score of VI (37-46 months) for the felon in possession charge, the defendant was placed at a base offense level of 25 under the attempted robbery guideline (110 to 137 months). However, the defendant in Smith never admitted to the robbery. Smith at 1023. The Sixth Circuit Court of Appeals held that Smith’s Sixth Amendment rights were violated because the court relied on judicially-determined facts to impose a sentence that could not have been imposed based solely on facts found by the jury beyond a reasonable doubt. Smith at 1023, citing United States v. McDaniel, 398 F.3d 540, 548 (6th Cir. 2005).

Unfortunately, this holding is the exception in the Sixth, not the norm. Recently, in an unpublished decision United States v. Tracy Hughley, No. 05-5602 (6th Cir. Aug. 7, 2006) (unpublished decision), the Sixth Circuit upheld the statutory maximum sentence of 10 years for a defendant who pled guilty to being a convicted felon in possession of a firearm. Though convicted of being a convicted felon in possession of a firearm with an applicable guideline range of 77 to 96 months, the district court had used the cross-reference to apply the base offense level of 29 for the drug trafficking offense which had been dismissed by the government, resulting in a guideline range that exceeded the 10-year statutory maximum. Essentially, the defendant was sentenced for an offense to which he did not plead guilty nor had been proven guilty beyond a reasonable doubt to a jury. On appeal, the Sixth Circuit ruled that post-Booker, judicial fact-finding by the district court was permissible, even if it amounts to a sentence being imposed for a different offense.

There is hope. A recent article posted by Professor Douglas Berman on his infamous site,,/ contained a quote from a dissent authored by Justice Ginsburg. In Washington v. Recuenco, 126 S.Ct. 2546 (2006), Justice Ginsburg wrote, "In sum, Recuenco, charged with one crime (assault with a deadly weapon), was convicted of another (assault with a firearm), sans charge, jury instructions, or jury verdict. That disposition, I would hold, is incompatible with the Fifth and Sixth Amendments." While not a cross-referencing case, the situation in Recuenco is analogous.

The article where I read the quote is, as described by Professor Berman, an "extraordinary" work by Amy Baron-Evans, the National Sentencing Resource Counsel to the Federal Public and Community Defenders. The article, The Continuing Struggle for Just, Effective and Constitutional Sentencing after United States v. Booker, is a very good read and can be downloaded here

As we continue to advocate for our clients, objections to cross-referencing in sentencing need to be made. Convicted felons who are guilty of possessing a firearm or ammunition that has traveled in interstate commerce should be sentenced for the crime for which they are found guilty, not crimes that "more likely than not" happened. If they are to be sentenced for a different crime, they should be charged accordingly and afforded their Constitutional rights.

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