NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 18a0607n.06

Case No. 18-3228

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEON MCGREGOR,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF 

OHIO

BEFORE: MOORE, GIBBONS, and COOK, Circuit Judges.

COOK, Circuit Judge. After Deon McGregor pleaded guilty to possessing ammunition as 

a felon, the district court applied USSG § 2K2.1(b)(6)(B)’s four-level sentencing enhancement for 

possession “in connection with another felony offense”—felonious assault under Ohio 

law. McGregor appeals. For the reasons that follow, we AFFIRM. 

I.

The court discerned the facts important to sentencing Deon McGregor from surveillance 

camera footage of events leading to his arrest in connection with an April 2017 shooting. 

McGregor pulled into the local bar where he confronted his girlfriend during her bartending shift. 

The footage shows him walking in, slapping her, and then leaving for the parking lot with her. 

Three individuals followed, including R.K., whom McGregor suspected to be romantically 

involved with his girlfriend. The men argued briefly before R.K. and his friends turned to walk 
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away. As they did, McGregor fired five rounds at their backs, hitting R.K.’s vehicle three times

as the group ran for cover behind it.

McGregor eventually pleaded guilty to unlawfully possessing ammunition as a felon, 

18 U.S.C. § 922(g)(1), and this appeal concerns his objection to a recommended four-level 

sentencing enhancement under USSG § 2K2.1(b)(6)(B) for possessing ammunition in connection 

with another felony offense, specifically felonious assault.

From its review of the parties’ sentencing memoranda, its viewing of the surveillance 

video, and oral argument, the district court found that a preponderance of the evidence supported 

finding McGregor committed felonious assault. It decided to adopt the reasoning offered in the 

United States’ sentencing memorandum, which stated as follows:

The four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for 

possession of ammunition in connection with another felony offense applies in 

this case. This enhancement applies “if the firearm or ammunition facilitated, or 

had the potential of facilitating, another felony offense.” U.S.S.G. § 2K2.1 n. 14. 

Notably, the ammunition need not actually be used to facilitate the offense; it is 

sufficient that it “had the potential” to facilitate the offense.

McGregor’s ammunition possession facilitated or had the potential to 

facilitate felonious assault in violation of Ohio Rev. Code § 2903.11(A)(2). This 

statute provides that “[n]o person shall knowingly . . . [c]ause or attempt to cause 

physical harm to another . . . by means of a deadly weapon or dangerous 

ordnance.” Ohio Rev. Code § 2903.11(A)(2). Although Defendant contends that 

he “shot at R.K.’s unoccupied car,” the surveillance video belies this self-serving 

contention. Surveillance video shows McGregor facing R.K. and his friends 

while they walk away and then opening fire at their backs. It further shows R.K. 

and his friends running and hiding behind parked cars when the shots commence. 

As the PSR succinctly concludes: “Moments after McGregor violently hit his 

girlfriend (R.J.) over the head and subsequently exited the bar with R.J., 

McGregor knowingly and intentionally shot at R.K. and two others five times as 

they walked toward R.K.’s vehicle, three of which rounds in fact hit R.K.’s 

vehicle.”

Moreover, although McGregor claims has [sic] “intent was to damage 

their property and not to harm their person,” Ohio law does not require that 

Defendant specifically intended physical harm to a person. Rather, the felonious 

assault statute requires that the offender act “knowingly,” which Ohio law defines 
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as follows: “A person acts knowingly, regardless of his purpose, when he is aware 

that his conduct will probably cause a certain result or will probably be of a certain 

nature. A person has knowledge of circumstances when he is aware that such 

circumstances probably exist.” Id. § 2901.22(B) (emphasis added); compare Ohio 

Rev. Code § 2901.22(A) (“A person acts purposely when it is the person’s specific 

intention to cause a certain result”). 

This Court may find by a preponderance of the evidence that McGregor 

knowingly attempted to cause harm to R.K. with a deadly weapon. McGregor 

had ample motive: he believed R.K. was involved in a romantic relationship with 

R.J. Indeed, Defendant violently slapped R.J. in the face minutes earlier over this 

dispute. Moreover, having just argued with R.K. and his friends in the parking 

lot, McGregor clearly knew that they were present in the parking lot and could be 

physically harmed when he fired the shots. That R.K. and his friends ran for cover 

immediately upon hearing the shots also suggests that McGregor was shooting in 

their direction. Indeed, McGregor actually hit R.K.’s car three times, close to 

where the three were hiding. Regardless of whether McGregor specifically 

intended to shoot R.K., he knew that “his conduct will probably cause a certain 

result or will probably be of a certain nature.” Ohio Rev. Code § 2901.22(B). 

Under these circumstances, this Court may find that Defendant acted knowingly 

in committing felonious assault. See State v. Gregory, 628 N.E.2d 86, 91 (Ohio 

Ct. App. 1993) (“The shooting of a gun in a place where there is a risk of injury 

to one or more persons supports the inference that [defendant] acted knowingly.”). 

Thus, the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession 

of ammunition in connection with another felony offense is appropriate.

R. 20, U.S. Sentencing Memo., PageID 117–19 (footnote and record citations omitted).

The district court also issued a written memorandum opinion on sentencing.

McGregor appeals the court’s application of the enhancement to his Guidelines range

calculation.

II.

We review for clear error the district court’s factual finding that McGregor acted 

“knowingly” and give due deference to the district court’s determination that McGregor possessed 

ammunition in connection with another felony, namely felonious assault, such that the USSG 

§ 2K2.1(b)(6)(B) enhancement applies. United States v. Taylor, 648 F.3d 417, 431–32 (6th Cir. 

2011).
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We find nothing clearly erroneous about the court’s finding that McGregor acted 

knowingly. The surveillance footage amply supports finding that McGregor, having just argued 

with R.K., knew the group was in the parking lot. Under Ohio law, firing in the direction of another 

individual supports finding the defendant acted knowingly. See, e.g., State v. Salinas, 706 N.E.2d 

381, 389–90 (Ohio Ct. App. 1997); State v. Owens, 678 N.E.2d 956, 958 (Ohio Ct. App. 1996).

That McGregor’s shots hit close to where the group hid further supports the court’s finding that,

regardless of his purpose, McGregor was aware that his conduct would probably cause a certain 

result. See Ohio Rev. Code § 2901.22(B).

McGregor seeks to defend using our distinguishable decision in United States v. Gillespie, 

713 F. App’x 471 (6th Cir. 2017). True, video evidence prompted a reversal in favor of the 

defendant in that case. But there, video contradicted the police officer’s statements that the 

defendant pointed a gun at him, an element of the charged offense. Id. at 476. Precisely the 

opposite holds here: footage of McGregor firing after R.K. and his friends contradicts his claimed 

defense and bolsters the court’s finding that he acted knowingly.

III.

The district court did not err—much less clearly err—in finding that McGregor acted 

knowingly in committing felonious assault by firing ammunition in these circumstances. Thus, 

giving due deference to the district court’s determination that the four-level enhancement applies 

to McGregor’s conduct, we AFFIRM.