NOT RECOMMENDED FOR PUBLICATION File Name: 15a0808n.06
No. 15
- 5519
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. COURTNEY SIMMONS , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

BEFORE: BATCHELDER and GRIFFIN , Circuit Judges ; and CARR, District Judge. *
GRIFFIN , Circuit Judge

. Def endant Co urtney Simmons pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1)

. The district court sentenced him to 100 months ’ imprisonment based on a cross - reference to attempted first

- degree murder under the S entencing
Guidelin es. On appeal, defendant both challenges the cross

- reference and argues that the use of an improper identification procedure violated his due process rights

. We disag ree and affirm.
I. On August 25 , 2013, security guard Andrew Tarrell Lee responded to a gambling complaint at the Kimball Cabana apartment complex in Memphis, Tennessee

. Kimball Cabana
i s a “problem spot” fo r Memphis

- area crime . Local prosecutors designated t he complex a

* The Honorable James G. Carr, Senior United States District Judge for the Northern District of Ohio , sitting by designation.No. 15

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United States v. Simmons

2 “Safeway property,” meaning only residents and thei r visitor s are allowed on the premises; “[y] ou can’t be just loitering outside.” Lee enforced th is policy

. I n the parking lot, Lee saw a group of “ s ix or seven” men gambling, inclu d ing defendant. Though he did not know their names, Lee recognized defe ndant and the others from p ri or incidents at the complex and knew they were not residents. Lee approached and asked for
identification

. The men refused and cursed at him

. At that point, L ee contacted the Memphis police for assistance. He ordered the gr oup to leave the property. “Fuck you,” defendant replied, walking back toward the complex. Le e told defendant he was under arrest, and defendant ran around the apartment bui lding and outside the gate. Just then , the police arrived. They pursued
defenda nt bu t could not catch him

. As he ran, defendant shouted back at Lee: “I’m going to get you, punk mother fucker.” Lee ended his shift between 2:00 a.m. and 3:00 a.m. ( Id. at 142 ). While walking out to his car , Lee saw a man “run [out] from the corner of the [apartment] building very fa st.” H e

wore black clot hing with a hoodie and a mask covering his face. The man came within 10 feet of
Lee and cocked a shotgun at him , warning , “[d]rop it off, you punk mother fuck er
. ” He pulled
the t rigger and Lee jumped to the left , narrowly avoiding fire

. Fearing for his safety , Lee grabbed his own gun and returned fire. The man fell to the ground, but Lee was uns ure whe ther
he was hit . Instead of respond ing to Lee’s commands to put up his hands , the man motioned

tow ard his belt as if reaching for a weapon. Lee fired again. The man started yelling for help.
He pulled off his mask , “and that’s when [Lee] got a clear look at his face.” Lee recognized it

was defendant

— the same person who t hreatened him hours earlier

. Property manager Joyce Alan a awoke to “the sound of a humungous boom ” and
witnessed the incident fro m h er apartment window . At first, Alana saw only one man, “dressedNo. 15

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United States v. Simmons

3 like in all b l ack,” with a black hoodie. He f ired a shot gun at another man who came into view
later and returned fire. Alana called 9

- 1

- 1. Once he was hit, the man in bla ck crawled toward
the apartment where police later found defendant. Like Lee, Alana did not know defendant by name, but had seen him around Kimball Cabana and recognized him

. A grand jury indicted defendant on one count of being a felo n in possession of a firearm.
T hough he pleaded g uilty to the charge, defendant denied any involvement in the sh ooting at the sentencing hearing

. He als o denied gambling at the complex

. Defendant explained he went to Kimball Cabana around 1:00 a.m. to give his cousin a haircut. There , he encountered a group of men in the parking l ot. They told defendant they were “ about to mess with the security guard”
b y “pull[ing] a prank” and shooting the guard’s car . Defendant intended to leave, but “stayed and kept walking” in front of the men. Suddenly, one of them fired a gun in the air, and anothe r fired at a nearby car. Defendant ran until he was shot in the b ack of his right shoulder

. He acknowledged wearing dark clothing, but stated he was not we aring a hoodie. Defendant’ s presentence report calculated a base offense level of 33 because of a cross

reference to attempted first

- degree murder under the Senten cing Guidelines

. See U.S.S.G. § 2K2.1(c)(1)(A) & 2X1.1

. With a two

- level reduction for acceptance of responsibility and defendant’s category III criminal history score, the resulting G uidelines range was 135 to 168 months imprisonment , subject to a statutory maximum of 120 months. See 18 U.S.C. § 924 (a)(2)

. Defendant object ed to the attempted murd er cross - reference

. Finding Lee and Alana more credible than defendant , the district co urt determined that “the enhancement . . . for assault with inten t to commit murder i s appropriate in Mr. Simmons’
case.” Applying a downward vari ance from the Guidelines range, the district court sentencedNo. 15

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United States v. Simmons

4 defendant to 100 months ’ imprisonment , followed by three years of supervised release.
Defendant timely appealed

. II.
A. Unlawful possession of a firearm is sentenced under § 2K2.1 of the Guidelines. Section 2K2.1(c) authorizes a district court to substitute or “cross

- reference ” the offense level for any
criminal offense that the defendant committed or attempted to commit in connection with his possession of the firearm , “regardless of wh ether a criminal charge was brought , or a conviction obtained” for the substitute offense. See U.S.S.G. § 2K2.1(c) cmt. 14(C)

. The government m ust prove facts warranting the cross

- reference by a preponderance of the evidence. United States v.
Brika , 487 F.3d 450, 459

– 60 (6th Cir. 2007). Defendant challenges the factual findi ngs underpinning the attempted murder cross

reference . H e contend s th e district court erred in finding : (1) he was the individual who shot at Lee; and (2) that he did so with intent to kill. “We review a district court’s sentencing decision for reasonableness, which has both procedural and substantive components.” United States v. Garcia

- Robles , 640 F.3d 159, 163 (6th Cir. 2011) (citations omitted). A sentence is procedurally unreasonable if, for instance, the district court improperly calculates the Sentencing Guidelines range, treats the Sentencing
Guidelines as mandatory, ignores the factors set forth in 18 U.S.C. § 3553(a), fails to adequately explain a chosen sentence, or

— as defendant argues here

— bases a sentence o n clea rly erroneous
facts

. Gall v. United States , 552 U.S. 38, 51 (2007)

. We review preserved p r ocedural
reasonable ness claims for an abuse of discretion. United States v. Davis , 751 F.3d 769, 773 (6thNo. 15

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United States v. Simmons

5 Cir. 2014). But “ [w] ithin this framework,” we evaluate the district court’s legal determinations de novo and its factual findings for clear error. Id. In support of his claim that the evidence was insufficient to establish his identity as the
shooter , defendant highlights what he sees as c ontradictions in the government’s proofs . For example , Lee and Alana believed that Lee shot his attacker i n t he front of the body, whereas
defendant was shot in the back of his shoulder , consistent with his claim that he ran from the shooting

. Lee’s account of t he incident also varied over time . Defendant notes that the r eport
Lee gave to police immedi ately aft er the shooting did not state that Lee knew the shooter , or that
the shooter wore a hoodie or mask

. Lee similarly fa iled to mention the mask while testifying in

an earlier state

- court proceeding

. But defendant is too selective. N one of these discrepancies leave us with a “ definite and
firm convicti on that a mistake has been committed ” i n view of the evidence as a whole. Easley
v. Cromar tie , 532 U.S. 234, 242 (2001) (citation omitted) . First, Lee and A lana both expressed
uncertai nty about where defendant was shot, describing the location of the injury only “as far as [they] could see

. ” Second, Alana testified she saw only two people in the parking lot, rebutting defendant’s claim th at another group of men w as responsible for the shooting

. Third, regarding defendant’s clothing, Alana and Lee agreed the attacker wore a black hoodie intended to obstruct
his face . T he government also submitted photograph ic evidence of a mask found at the crime

scene corroboratin g Lee’s claim that defendant was wearing a mask

. Finally, as to the police report, Lee clarified that he told the police he did n ot know the shooter’s name, not that he d id not recognize the shooter. Beyond this, the district court questioned Lee direct ly, asking him to describe the mask, his relative position to the attacker, and the lighting in the parking lot . Lee answered to theNo. 15

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United States v. Simmons

6 court’s satisfaction. A n overhead s treetlight gave Lee a “good” look at defendant ’s face . He had “no doubt” defendant wa s the shooter. Under the clear error standard, “the fact that there is evidence in the record to support [a] finding is sufficient to preclude us from second guessing the [ district] court’s determination , ” United States v. Wheaton , 517 F.3d 350, 369 (6th Cir. 2008) , and we will not do so here.
The same goes for defendant’s claim that the district court erred in finding intent to kill.
M urder is “the unlawful killing of a human being with malice aforethought , ” perpetrated by “poison, lying in wait, or a ny other kind of willful, deliberate, malicious, and premeditated” means. 18 U.S.C. § 1111(a). “Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.” Braxton v. United States , 500 U.S.
34 4, 351 n.* (1991) (citation omitted) ; see also State v. Kimbrough , 924 S.W.2d 888, 891 (Tenn. 1996) (describing attempted murder under Tennesse e law). According to the testimony,
d efendant engaged in a confro ntation with Lee a few hours before the shooting and threatened to “get” him . He returned to the complex that night dressed in black clothing intended to conceal his identity. After lying in wait for Lee’s shift to end , defendant ambushed him in the parking lot
and fired a shotgun at him. T he district court did not clearly err in finding defendant intended to
kill Lee.
B.
Defendant next complains that the use of a suggestive photographic identification procedure violated his due process rights. Specifically, Lee testified that when he spoke with police after the shooting, they showed him a single photograph of defendant and “ asked

. . . was this the guy,” to which Lee replied, “yes, tha t’s him.”No. 15

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United States v. Simmons

7 We review preserved c onstitutional sentencing challenges de novo, see United States v.
Jones , 569 F.3d 569, 573 (6th Cir. 2009) , and unpreserved challenges for plain error, see United States v. Yancy , 725 F.3d 596, 600 ( 6th Cir. 2013). D efendant did not object to the ide ntification procedure before the distric t court , but submits the preservation requirement s should be excused
because he did not learn of the suggestive procedure until Le e testified at the sentencing hearing.
Yet , even with the benefit of de novo review, defendant has not established a violation of his due process rights. The Due Process Clause prohibits the use of identification testimony at trial if “ the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifica tion.” Simmons v. United States , 390 U.S. 377, 384 ( 1968). To determine the validity of an identification procedure, we apply a two

- part test: first, the defendant must demonstrate that the identification procedure was im permissibly suggestive; second, assuming the procedure was suggestive , the court considers whether the identification was nevertheless reliable under the totality of the circumstances. United States v. Meyer , 359 F.3d 820, 824 (6th Cir. 2004). Those circumstances include: (1) the wi tness’ opportunity to vi ew the suspect; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the time of the identification; and (5) the time bet ween the crime and the identification

. Haliym v. Mitchell , 492 F.3d 680, 704 (6th Cir. 2007) ( citing Manson v. Brathwaite , 432 U.S. 98,
114 (1977); and Neil v. Biggers , 409 U.S. 188, 199

– 2 00 (1972)). “Although identifications arising from single

- photog raph displays may be viewed in general with suspicion,” t he total circumstances may nevertheless negate the “corrupting effect

o f the suggestive identification, ” particularly where the witness knows the defendant. Manson ,No. 15

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United States v. Simmons

8 432 U.S. at 114 , 116 ; see e.g. , United States v. Shields , 415 F. App’x 692, 702

– 03 (6th Cir. 2011) (use of singl e - photograph was not impermissibly sug gestive where witnesses saw the defendant “numerous times prior to being shown the photograph”). Witnesses may have difficulty observing and later identifyi ng a stranger, but they “ are very likely to recognize . . . the people in their lives with whom they are most familiar, and any prior acquaintance with another person substantially increases the likelihood of an accurate ident ification.” Haliym , 492 F.3d at
706 . Here, Lee knew defendant from p revious encounters at the apartment complex; he recognized defendant when he confronted the gamblers and when defendant removed his mask following the shooting. Alana’s testimony that d efendant was a regular at Kimball Cabana added weight to Lee’s assertion that he recognized defendant . “[R]eliability is the linchpin in determining the admissibil ity of identification testimony , ” Ma n son , 432 U.S. at 114, and Lee’s familiarity with defend ant “ substantially increase[d] the reli ability” of his identification, Haliym , 492 F.3d at 707.
The total ity of the circumsta nc es additionally s upport s a finding of reliability

. Lee had a
clear view of defendant during the gambling incident and immediately after the shooting, and his

concern for his own safety “also suggests a heightened degree of attention. ” Id. at 705. Further,
Lee gave no prior inaccurate description of the perpetrator ; he identified defe ndant at the police
station within ho urs of the shooting, and expressed complete certainty in his identification. On the whole, Lee’s identification was indepen dently reliable and admission of his testimony did not offend defendant’ s due process rights. D efendant is not entitled to remand for resentencing or an opportunity to withdraw his guilty plea based on the suggestive identification procedure

. III. We affirm the district court’s judgment.