NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0324n.06 No. 08-4290 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. WILLIAM L. AMOS, Defendan t-Appellant. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE NORTHERN DISTRICT O F OHIO

BEFORE: GU Y, CLAY and McK EAGU E, Circuit Judges. CLAY, Circ uit Judge. Def endant William Amos challeng es his conviction and se ntence for attempting to kill a fede ral ag ent, in violation of 18 U.S.C. § 1114; assaulting a fede ral ag ent, in violation of 18 U.S.C. § 111; us ing a firea rm duringa crime of violence, in violation of 18 U.S.C. § 924 (c) (1)( A); and being a felon in possession of a firea rm, in violation of 18 U.S.C. § 922 (g )(1)

. Amos arg ues that there was insufficient evidenc e to support the conviction and that the district court abused its discretion in declining to sentenc e him below the applicable United States Sentencing Guideline. For the rea sons set forth below, we AF F IRM the judgme nt and sentenc e of the district court. BACK GR OUND At 1:00 p.m. on J uly 18, 2007, Def endant W i l l i am Amos arr ived at a house at 150 East J udson Avenue , in Y oung stown, Ohio, in or der to pa rticipate in a fake drug deal. Earlier that day ,No. 08-4290

Amos and his friend Michae l Br og den had devised a plan wher ein Br og den and Amos would prete nd to sell coca ine t o a drugbuy er, but would instead take the buy er’ s money and run a way befor e the buy er r ealized that the coc aine wa s not real. At 3:00 p.m., Br og den’s uncle, J oseph Cambridg e, arr ived at the J udson house with the drug buy er, underc over Alcohol, Tobac co and Fi re arms (“A TF” ) specia l ag ent J ohn Smerg lia. At that time, no one but Cambridge, wh o h ad been acting as a confide ntial informant for the ATF , was

awa re that Ag ent Smerg lia was a fede ral ag ent. Prior to J uly 18, Cambridg e had set up sever al controlled purcha ses with Ag ent Smerg lia, and it was Cambridg e’s understanding that another drug deale r, I ke L ake, w ould be at the Judson house to sell cocaine to Ag ent Smerg lia on that day

. When Cambridg e and Ag ent S m er gl i a arr ived, Br og den g ree ted them outside and, afte r a brief discussion, the three men enter ed the J udson house. Once inside, Ag ent Smerg lia noticed that L ake was not prese nt; instead, Amos was int roduce d as t he drug dealer

. Thoug h this raised some

conce rn for Ag ent Smerg lia, he made a decision t o co n tinue with the planned purcha se. Unbeknownst to Ag ent Smerg lia, Amos and Br og den wer e both arme d. Unbeknownst to the other 1

men, Ag ent Smerg lia was wired with a voice rec order and transmitter, and was backe d-up by an ATF team stationed a

round the c orner . Once all of the men had assembled in the dining room, Amos turned to Cambridg e and asked, “what y o u n ee d ? ” Ag ent Smerg lia responde d that he wanted to purcha se two ounces of cra ck

coca ine. Amos told Ag ent S m er gl i a t h at t he price was $2,300 and asked for the money . At that

There is some dispute reg arding whether C ambridge was also arme d. Whil e Amos’ 1 testimony implied that he was, Ag ent Smerg lia claimed that he sear ched Cambri d ge b ef o re they enter ed the Judson house and did not locate a ny wea pons. 2No. 08-4290

point, Ag ent S merg lia told Amos that he had left t he money in the car for sa feke eping and that he would g o out and g et it. Ag ent Smerg li a al s o t o l d t h e as sembled men that he was g oing to g et a digita l s ca l e from the car, so that he could double-c heck the quantity of t he crac k coca ine. Ag ent Smerg lia then left the house and we nt to his car. After Ag ent Smerg lia l ef t , b o th Amos and Br og den appar ently beca me nervous that they would n o t b e able to pull off the robber y as planned. They had a brief conver sation about their g rowing unease , but decided to pr ocee d with the bog us transac tion. Ag ent Smerg lia returned to the dining room with a scale and the money , which was in a Crown Roy al bag in his jac ket pocke t. Amos was bec oming incre asing ly ag itated, in pa rt beca use of Ag ent Smerg lia’s appea ranc e (desc ribing him at trial as a “big swelled up mother f’e r”) and also beca use Amos found it suspicious that Age nt Smerg lia would car ry money in a liquor bag . Amos beg an the proce ss of transfe rring the “coc aine,” which was actua lly flour, into plastic bag s for Ag ent Smerg lia to weig h. Upon seeing Amos pour the flour-like substance into the bag s, Ag ent Smerg lia asked A mos “is that all y ou g ot? ” and told him that the substance was “ junk.” Amos testified that he and Cambridg e then exchang ed a knowing l o o k , at which point Cambridg e beg an to rea ch in his waistband as if for a g un, an action which prec ipitated the ensuing commotion. All of the men beg an y elling at one another

. Ag ent Smerg lia testified that he saw Amos

rea ch for a g un. Seeing this, Ag ent Smerg lia ran from the house throug h the side door, at the same time c alling into his t ransmitter for help. Soon therea fter, A mos ran out of the same door, trailing Ag ent Smerg lia.

3No. 08-4290

Ag ent Smerg lia testified that he then hear d someone yelling at him to “sit [hi s] ass down,” followed by the sound of a g unshot. He felt his arm g razed by a bullet. Ag ent Smerg lia turned, saw Amos shooting at him, and attempted to return f ire with his own wea

pon, which jammed a fter the first round. Ag ent Smerg lia continued to run a way from the house until he found cove r. Whil e shooting, Amos continued to run from the house and awa y from Ag ent Smerg lia. As Amos was flee ing, he saw the backup ATF team conver g ing on the J udson house and, rec og nizi ng the team as law enfor ceme nt office rs, pointed towards the J udson house to cre ate a diversion. Once 2 far ther down the street, Amos disca rded the g un and the “ coca ine,” a nd continued on to the hous e of a f riend. T he backup ATF team arr ived at the J udson house and found that Ag ent Smer gl i a h ad sustained a g unshot wound throug h h i s l eft foot. Ag ents broug ht Ag ent Smerg lia to the hospital, wher e he w as trea

ted for his injuries a

nd rele ased. That eve ning, A mos became awa re of Ag ent Smerg lia’s true identity , and that he was now the subject of a manhunt. L ater that night, Amos surre ndere d himself to t h e M ah o n i n g County Sheriff’ s Depa

rtment. Upon investigation, office rs found Amos’ discarde d wea pon, along with the bag containing the “coc aine.” Offic ers prese nted a photo arr ay of suspects to Br og den, Cambridg e, Ag ent Smerg lia,

Amos testified that he saw three Crown Victoria car s “tailing eac h other

. . . rea l fast,” which 2 he rec og nized as a “task forc e basica lly , they underc over, or whateve r.” When the office rs in the car s spotted Amos and beg an to slow, Amos testified that he “knew what it was about. I t was shots as clea r as day

. I t’s broad daylight. I just g ot in a shootout. And I see seconds later task forc e come around the cor n er. And I knew what they was coming for. They came beca use t hey hear d shots. So I pointed to the s cene . So basica lly when they all road [ sic] past, that’s w h en I was running .

. . .” (R. 68: Trial Tr . at 23-24.) 4No. 08-4290

and Merr ill Pratt, an ey ewitness—all identified Amos as the shooter. A ballistics expert compar ed the bullets rec overe d from the scene and from Ag ent Smerg lia’s foot, and conclude d that the bullets matched A mos’ discarde d g un. On J uly 24, 2007, Amos was indicted on f ive counts: attempted murde r of a fede ral a g ent, in violation of 18 U.S.C. § 1114; assault on a fede ral ag ent, in violation of 18 U .S.C. § 111; being a fe lon in possession of a fire arm, in violation of 18 U.S.C. § 922 (g )(1) ; and two counts of use of

a firea rm during a crime of violence, in violation of 18 U.S.C. § 924 (c) (1)( A). Amos was arr aig ned and plea ded not g uilty

on J uly 25, 2007. Amos went t o trial befor e a jury on May 19, 2008. Amos’ t estimony reg arding the events of J uly 18, 2007, trac ked that of the other witnesses prese nt that day , with the exception that Amos testified that he only beg an shooting at Ag ent Smerg lia afte r the ag ent opened fire on him. On May 23, 2008, Amos was convic ted of e ach of the five c ounts. I n his Presentenc e I nvestig ation Report (“PSR”), Amos’ base offe nse level was set at 33, pursuant to United States Sentencing Guidelines (“Guidelines” or “U.S. S.G.”) § 2A2.1(a )(1) ; he

rec eived a two point enhanc ement beca use the victim sustained a serious bodily injury

. There fore , his adjusted offe nse leve l was 35. Amos had four criminal history points, but rec eived an additional two p o i n t s beca use he committed the instant offe nse less than two y ear s afte r the date of his last rele ase from custody

. This

corr elated to a Criminal History Categ ory I I I

. Amos’ rec ommended Gu i d el i n es sentenc e was there fore 210 to 262 months of incarc eration.

5No. 08-4290

The statutory maxi mum sentenc e for the attempted murder and assault char g es was 20 y ear s (240 months), and the statutory maxi mum sentenc e for the felony firea rm char g e was 10 y ear s (120 months). Amos was also subj ect to a st atutory sentenc e of 10 y ear s to life for the use of a f irea rm during a violent crime, pursuant to 18 U.S.C. § 924(c) (1)( A), to run consec utively to any other term of imprisonment. There fore , pursuant to U.S.S.G. § 5G1.1(c )(1) , Amos’ rec ommended sentenc ing rang e wa s 330 to 360 months of im prisonment On Aug ust 18, 2008, Amos was sentenc ed to 330 months of imprisonment and five y ear s of supervised r elea se. On August 27, 2008, Amos filed this ti mely appea l. DISCUSSIO N I. Reasonableness of Sentence A. Stand ard of Review We revie w a sentenc e imposed by the district court for abuse of discretion. United States v. Bolds , 511 F.3d 568, 578 ( 6th Cir. 2007). We r eview first for proce dural rea sonablene ss a nd then for substantive rea sonablene ss. United States v. Barahona-Montene gro , 565 F.3d 980, 983 (6th Cir. 2009). Wit hin-Guidelines sentenc es are aff orded a rebuttable presumption of rea sonablene ss. United States v. Vonne r , 516 F.3d 382, 389 ( 6th Cir. 2008) (en ba nc). I f a party fails to raise an objection to the district court’s proce dure at the time of sentenc ing, then our proce dural rea sonablene ss revie w is for plain err or only

. S ee Un i t ed States v. Herrera- Zuniga , 571 F.3d 568, 578 (6th Cir. 2009). Plain err or i s “(1) err or (2 ) that was obvious or cle ar, ( 3) that af

fec ted defe ndant’s substantial r ights and (4) that aff ecte d the fa irness, integ rity ,

or public reputa

tion of the judicial proce eding s.” United States v. W allace , 597 F.3d 794, 802 (6th

6No. 08-4290

Cir. 2010) (citing Vonner , 516 F.3d at 386). Amos raised no objection to the form or extent of the district’s court ex planation of i t s s entencing considerations at t he ti me of the s entenc ing hear ing. Consequently , we review f o r plain err or. See United States v. Bosti c , 371 F.3d 865, 873 (6th Cir. 2004). I n deter

mining if a sentenc e is proce durally rea sonable, we consider whether the d is trict court “committed [a] signific ant proce dural err or, such as failing to calc ulate (or improperly calc ulating) the Guidelines rang e, treating the Guidelines as mandatory , failing to consider the § 3553(a) fac tors, selec ting a sentenc e based on cl ea rl y err oneous fac ts, or failing to adequately explain the chosen sentenc e—including an ex planation for a ny deviation from the Guidelines rang e.” Gall v. United States , 552 U.S. 38, 51 (2007). At t h e t ime of sentenc ing, the district court must articulate the rationale underly ing its sentenc e in a wa

y that cre ates a

rec ord suffic ient for mea ningf ul appellate r eview. See Bolds , 511 F.3d at 579-80. I n addition, in those instances whe re a defe ndant raises a non-frivolous argument in favor of a lower sen t en ce “t h e re cord must ref lect both that the district judge considere d the defe ndant’s argum ent and that the judge explained the basis for reje cting it.” United States v. Richardson , 437 F.3d 550, 554 (6th Cir. 2006). But, “[a] s entenc ing judg e has no more duty than

we appellate judge s do to discuss ever y argument made by a litigant; arguments clea rly without merit

can, and for the sake of judicial economy should, be passed over in silence.” United States v. Gale , 468 F.3d 929, 940 ( 6th Cir. 2006) (interna l quotations omi tted). “A sentenc e is subst a

nti v e ly unrea sonable if the district court ‘selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider pertinent § 3553(a) fac tors or g ives an

7No. 08-4290

unrea sonable amount of weig ht to any pertinent fac tor.’” United States v. Husein , 478 F.3d 318, 332 (6th Cir. 2007) (quoting United States v. Cave r , 470 F.3d 220, 248 ( 6th Cir. 2006)). B. P roce dural Reasonab leness Amos argues that the district court err ed when it sentenc ed h i m to 330 months of incar cer ation beca

use it “made littl e or no mention of [several mitigating § 3553(a) fac tors raised by the defe nse], particula

rly the unique fac ts of this case which led to the shooting.” I ncluded in these fac ts a re “ evidenc e that Mr. Amos ha d no idea that the pe rson he returne d gunfire to w as a fede ral ag ent” and evidenc e that Amos “immediately turned himself in and expressed g reat conce rn for the office r’s c ondition” after

lear ning tha t Ag ent Smerg lia had bee n shot. I n imposing a sentenc e, the district court must consider w hether the s entenc e it imposes is “suff icient, but not gr eate r than ne cessa ry ”: (A) to ref lect the seriousness of the offe nse, to promote respe ct for the law, and to provide just punishment for the off ense; (B ) to aff ord ade quate de terre nce to c riminal conduct; (C) to protec t the public from fur ther c rimes of the de fenda nt; and (D) to provide the defe ndant with neede d educational or vocational training , medical car e, or othe r cor

rec tional treatment in the most eff ective ma nner. 18 U.S.C. § 3553(a)(2)

. I n this case , afte r the district court acc urate ly calc ulated Amos’ Guidelines sentenc ing rang e and re viewed the 18 U.S.C. § 3553(a) fa ctors, it pronounce d the following : The Court h as re v i ewed the thoroug h prese ntence repor t. I ’ve revie wed the Def endant’ s Sentencing Memorandum, and the Gover nmen t ’s response . And I ’ve listened to both counsel and to Mr. Amos.

. . . I have the benef it of having sat throug h

8No. 08-4290

the trial. So I hear d all the witnesses, including Mr. Amos. Mr. Amos, y ou are fortunate

. . . as Ms. Kelley mentioned, that y our shots only hit the Ag ent in the foot. There was evidenc e there was a second shot, which I believe the testimony was that it g razed the A g ent’s upper arm a nd obviously

that was a

lot closer to the center of his c hest and body and could have been a much more g rave or possibly even a fata l injury

. And t his occur

red barely a y ear afte r y ou wer e re lease d from prison af ter rece iving a two-y ear sentenc e for burg lary . So y ou cer tainly should have learne d y our l esson that y ou don’t eng ag e in drug dealing , having a wea pon. You wer en’t even permitted to have a wea

pon, having been a convicted felon, let alone use one to commit another crime. So it’s clea

r to me that a ve ry

signific ant sentenc e is war rante d.

. . . [W ]hen someone does what y ou do and int en t i o n al l y s hoot at an underc over ag ent, even though y ou didn’t know who he was, y ou intenti o n al l y s h o t at an individual, and it turns out to be a Fe dera l Ag ent, a very serious and signific ant sentenc e is war

rante d beca

use—obviously , to deter y ou, but more important, to deter any one else . And so any

other individual who’s in a situation li ke that and just sort of takes a shot is g oing to take a chanc e may be it’s an underc over ag ent and he or she is goingto prison for a ve ry long time. So in this case , Ifind that a sente nce w ithin the advisory rang e is sufficie nt but not g reater than nece ssary to meet the statutory pu rp o s es of sentenc ing. We’ve g ot a fairly narr ow rang e, and beca use y our only prior signific ant prison sentenc e was two y ear s, I believe a sentenc e at the low end of the rang e is sufficie nt but not g reater than nece ssary . (Sent. Tr. at 10-12.) On this recor d, it is clear that the district c ourt ca ref ully revie wed the arguments prese nted in Amos’ sentenc ing memorandum, and reje cted or acc epted those arguments as appropr iate. I n that memorandum, Amos first argued that the consec utive, mandatar y 10-y ea r s en tence s for the two

wea pons char g es shoul d be m er ged; the di strict court acknowledg ed and acc epted this argument. ( Id. at 3 (“I have rec eived and revie wed the Def endant’ s Sentencing Memorandum and the Gov er nment’s response . I do ag ree with [Defenda nt’s] point that cer

tain of the counts merg e;

9No. 08-4290

particula rly , Counts 2 and 4. And that it’s appropr iate to g ive only one sentenc e for use of a firea rm during a cr ime of violence ”).) Secondly , Amos arg

ued that the district c ourt should c onsider the particula r circ umstances of the crime, namely his la ck of knowledg e of Ag ent Smerg lia’s true identity as a fede ral ag ent, as weig hing in favor of a less leng thy sentenc e. The district court, at the time of sentenc ing, made clea r that it was fully

awa re of all of the details surroundingthe cr ime. ( Id. at 10 (“ Ihave the benef it of having sat throug h the trial. So I hear d all the witnesses, including Mr. Amos”).) Additionally , the district court appar ently cre dited Amos’ asser tion that he was unawa

re of Ag ent Smerg lia’s identity at the time of the shooting. ( Id. (“[W] hen someone does what y ou do and intentionally shoot at an underc over ag ent, even though y ou didn’t know who he was . . . .”).) There fore , the rec ord ref lects that the district court c onsidered A mos’ ignor ance as to Ag ent Smerg lia’s identity

. Amos now contends that the district c ourt should ha ve g iven more weig ht to evidence that “if he had known [t hat Ag ent Smerg lia was a fede ral ag ent], he would not have fired and evidenc e that shot w as fired in a haphazar d manner and out of fea r alone.” At sentenc ing, the district court addre ssed this arg

ument, stating that the jury reje cted the premise that Amos acte d in se lf-def ense, ( id. at 6), and indicating that the court simil arly did not cre dit Amos’ self-de fense claim. ( Id .) Amos raised no new or additional arg uments during s en t en ci n g , and the district court was under no obligation to revisit or re-a djudicate e ach e lement of the c rime bef ore it imposed sentenc e. Finally , Amos reque sted that the court g ive specia l consideration to his ag e at the time of the crime—he was 22—and backg round in cra fting an appropr iate sentenc e. Whil e the d is tric t court was

awa re of Amos’ ag e and b ac k gro u n d from its revie w of the PSR , the court also weig hed Amos’

10No. 08-4290

criminal history

and the f act that he had committed a se rious felony on the hee ls of beingrele ased from prison for another serious felony

. ( Id. (“A nd this occur

red bare ly a y ear afte r y ou wer e rele ased from prison afte r rec eiving a two-y ear sentenc e for burg lary”).) That the district court did not weig h the fac tors raised by Amos in the manner that he would have liked to have had them weig hed does not indicate that the c ourt ac ted improperly or disreg arde d Amos’ ar g uments. Fur thermore , the rec ord does not sug g est that the district court was unawa re of its ability to g rant a sentenc e outside of the Guidelines rang e. Whil e Amos arg ues that this “mer e rec itation of 3 the nece ssary lang uag e” does n o t s u ff i ce to show that the district court was awa re of its power to sentenc e outside of the rang e, rec itation is the only indication that a district court is able to provide, short of actua l perf

ormanc e. And, it s h o u l d go wi thout saying, a district court is not obligated to apply its discretion favor ably to a defe ndant in order to demonstrate to the defe ndant that it understands that it has the power to do so. See United States v. Clark , 385 F.3d 609, 623 (6th Cir. 2004) (“The Court presumes that the district court understood its discretion to depar t, ‘abse nt clea

r evidenc e in the rec ord to the contra ry .’”) (quoting United States v. Crouch , 288 F.3d 907, 910 (6th Cir. 2002)). C. Sub stantive Unre asonab leness Amos raises no additional arguments to suppor t his claim that the sentenc e imposed by the district court was substantively unrea sonable. Under 18 U.S.C. § 924(c) (1)( A), the district court was require d to impose a 120-mon t h m i n imum sentenc e, to run consec utively to any other sentenc e

To the contra

ry , the district court stated, “I want t o go o v er the Advisory Guidelines. Of 3 co u rs e, t h ey are only advisory , but the Court’s require d to compute the advisory Guideline rang e corr ectly .” (Sent. Tr . at 4.) 11No. 08-4290

imposed, for the use of a fi re ar m du ri ng a crime of vi olence

. In order to rea ch a sentenc e of 330- months of incar cer ati o n , t h e district court nece ssarily sentenc ed Amos at the very bottom of the advisory Guidelines ra

ng e on his rema ining c onvictions. Amos does not contend that the district c ourt weig hed any impermissible f

actor s, nor does he claim that t h e sentenc e was arbitra ry . As discussed above, we find that the district court considere d all pertinent § 3 5 5 3 (a ) fac tors, including those raised by Amos in his Sentencing Memorandum and befor e the court at his se ntencing hear ing. And, while the district cour t did not weig h the § 3553(a ) fa ctors to Amos’ satisfa ction, it did not weigh a ny fac tor unrea sonably

. D. Summ ary There fore , we find that the within-Guidelines sentenc e of 330 month s o f i n carce ration imposed by the district court was neither proce durally nor substantively unrea sonable, as the district court considere d all § 3553(a) fac tors, addre ssed Amos’ rea sonable arg uments for a lower sentenc e, and sufficie ntly articulated the rea sons for its decision. T h u s , the district court did not abuse its discretion in sentenc ing Amos. II. Insu ff

iciency of the Evid ence A. Stand ard of Review W e re view a defe ndant’s claim of insufficienc y of the evidenc e to deter mine whethe r, viewing the evidenc e in the light most favor able to the prosec ution, United States v. W hite , 492 F.3d 380, 393 (6th Cir. 2007), “any rational trier of fact could h av e found t he essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). In our inquiry ,

we are require d to resolve all conflicts in testimony in favor of the prosec ution, United State s v.

12No. 08-4290

Bashaw , 982 F.2d 168, 171 (6th Cir. 1992), and “[w]e are bound to make all rea sonable infere nces and credibility choice s in support of t he jury ’s verdict.” United S t a t es v. Hughes , 895 F.2d 1135, 1140 (6th Cir. 1990). B. Analysis Attempted m urder of a f

eder al ag ent is g overne d by 18 U.S.C. § 1114, which criminaliz es “[w]hoever kills or attempts to kill any office r or employ ee of the United States or of any ag ency in any branc h of the Un it e d St a te s Gover nment (including any member of the uniformed service s) while such office r or employ ee is eng ag ed in or on acc ount of the perf ormanc e of officia l duties

. . . in the

case of attempted murde r or mansla ug hter, a s provided in sec tion 1113.” 18 U.S.C. § 1114(3). Section 1113 define s murder a s: [T] he unlawful killing of a human being with malice af o re t h o ug ht. Every murder perpe trated by poison, ly i n g i n wa it, or any other kind of willful, deliberate, malicious, and preme ditated killing; or committed in the perpe tration of, or attempt to perpe trate, any arson, escape , murder, kidna pping, tr eason, e spionag e, sabotag e, ag g ravated sexual abuse or sexual abuse, chi l d abuse, burg lary , or robber y ; or perp et rate d as part of a pattern or prac tice of assault or torture ag ainst a child or children; or perpe trat ed fr o m a preme ditated desig n unlawfully and maliciously to ef fe ct the death of any human being other than him who is killed, is murder in t h e first deg ree . 18 U.S.C. § 1113. “Since the statute does not specify the elements of ‘attempt to kill,’ they are those require d for an ‘attempt’ at common law

. . . which include a specific intent to commit the unlawful act.” Braxton v. United States , 500 U.S. 344, 351 n.1 (1991) (citing Morissette v. United States , 342 U.S. 246, 263 (1952))

. Neither the s tatute criminaliz ing the attempted murder of a fede ral off

icer

nor that criminalizing assault upo n a fe d eral office r “ca n[] be construed as embodying an

13No. 08-4290

unexpressed require ment that an assailant be awa re that his victim is a fede ral office r.” United States v. Fe ola , 420 U.S. 671, 684 (1975). Amos argues that “a rational finder of fac t could not have found all of the nece ssary elements of attempted murder [of a fede ral ag ent]” as “ther e was a lack of evidenc e of specific intent to kill,

as well as the additional element of malice afor ethoug ht.” Whil e Amos prese nts this argument quite skeletally , it is appar ently premised upon Amos ’ fa ct u al as s ertions t hat he “fire d in a random and haphazar d manner ,” which he argues cuts ag ainst intent; and that “the actions of the defe ndant wer e during ‘.

. . a sudden quarr el, heat of passion, or provocation,’” which he argues cuts ag ainst a finding of malice afor ethoug ht. Both of these a ssertions are based solely on the testimony of Amos himself, and both w ere contra dicted by the evidenc e at trial. As discussed above, all conflicts in testimony are resolved in favor of the prosec ution, all cre dibilit y questions are viewed in the light most supportive of the jury ’s verdic t, and all rea sonable infere nces are drawn in the prosec ution ’s fa v o r. The prosec ution prese nted evidenc e thr o u gh A g e nt Sm e r g li a ’ s te s ti mo n y , wh ich the jury found convincing , that Amos followed Ag ent Smerg lia from the J udson house, commanded him to stop running , and then opened fire on him. The fore nsic evidenc e also strong ly supported the pr osecution’s ve rsion of eve nts. Amos’ asser

tion that no rational juror c ould find the element of intent bec ause he “fire d in

a random and haphazar d manner ,” is not s u p p o rt ed b y any thing other than his asser tion. Whil e Amos may not have taken car eful and studied aim at Ag ent Smerg lia, the rec ord is clea r that Amos fired his wea

pon twice, and in doing so manag ed to hit or g raze Ag ent Smerg lia twice. The rec ord

14No. 08-4290

also shows that, while there wer e five men in the J udson house at the time that the transac tion went

awr y , Amos only

aimed at a

nd shot Ag ent Smerg lia. The rec ord also does not support a finding that Amos did not possess malice afor ethoug ht. I n his br ief, Amos cites the definition of “malice afor ethoug ht” provided by the district court in its jury instructions a

t tr ial, wher ein it state d that, “the term malice a fore thought means an absenc e of

a sudden quarr el, heat of passion, or provocation.” The souring of the drug deal, Amos contends, 4 establishes the pre sence of passion, provoc ation and a qua rre l. W h i l e i t may be arguable that there was a “sudden quarr el” inside the J udson house, t h at quarr el would have natura lly come to an end (as to Ag ent Smerg lia, at least) had Amos not followed Ag ent Smerg lia from the house onto the street. Passions, if inflamed, would have died down, and whateve r provocation Amos claims to have pe rce ived would have cea sed t o exis t. I nstead, Amos made a conscious choice to follow Ag ent Smerg lia from the house throug h the side door. I t is in that moment that a rea sonable jury could, and we presume did, find the prese nce of malice afor ethoug ht. Finally , counter to Amos’ asser tions, the fac t that Amos s h o t twice and hit twice—while Ag ent Smerg lia was running in the opposite direc tion, sear ching for cover , an d u n s ucce ssfully attempting to r eturn fire—sug g ests that he was not e ng ulfed in a passion of the kind understood to cast doubt on the prese nce of malice afor ethoug ht. I nstead the evidenc e sug g ests that, while events may have transpire d in fairly quick succe ssion, enough t i m e elapse d for Amos to collect himself,

This instruction is consistent with both the modern and common law understanding of the 4 definition of malice afor ethoug ht. See Mullaney v. W ilbur , 421 U.S. 684, 696 (1975) (stating “the fac t at issue here –the presence or absence of the hea t of passion on sudden provoc ation–has bee n, almost from the inception of the common law of homicide, the single most impo rt ant fac tor in deter mining the de g ree of culpa bility attachingto an unlawf

ul homicide.”). 15No. 08-4290

decide to pursue Ag ent Smerg lia from the house, command the ag ent sever al times to stop running (or to “sit his ass down”) , take aim and shoot twice. Amos was then able to not only calmly flee the

scene , but had the prese n ce o f m ind seconds afte r the incident to defle ct the attention of the ATF backup team from hims el f, and to dispose of both the wea pon and the evidenc e of the drug transac tion. Acc ording ly , a rational trier of fac t c ould ha

ve found that the evidenc e prese nted at Amos’ trial established the prese nce of both intent and malice afor ethoug ht, a nd was sufficie nt to support his conviction. CONCLUSION The district court did not abuse its discr etion in se ntencing Def endant to a 330-month term of imprisonment on convictions for attempted murder of a fede ral ag ent, assault on a fede ral ag ent, being a felon in possession of a firea rm, and use of a firea

rm during a crime of violence; an d the evidenc e prese nted at trial was sufficie nt to find eac h element of the offe nses. We here by AF F IRM the judg ment and sente nce of the district court.

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