FILED

United States Court of Appeals

Tenth Circuit

July 13, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 08-7090

CEDRIC JAMARA CHERRY,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. NO. 6:08-CR-00008-JHP-1)

Robert Ridenour, Assistant Federal Public Defender, (Julia L. O’Connell, Federal

Public Defender; Barry L. Derryberry, Research & Writing Specialist, with him

on the briefs), Office of Federal Public Defender, Eastern District of Oklahoma,

Tulsa, Oklahoma, for Defendant - Appellant

Robert Wallace, Assistant United States Attorney, (Sheldon J. Sperling, United

States Attorney, with him on the brief), Muskogee, Oklahoma, for Plaintiff -

Appellee.

Before KELLY, BRISCOE, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Cedric Cherry was indicted in the United States District Court for the

Eastern District of Oklahoma for being a felon in possession of a firearm. See
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18 U.S.C. § 922(g)(1). The charge resulted from an investigation into a gun fight

that left one participant dead. Mr. Cherry pleaded guilty and the district court

sentenced him to a 94-month term of incarceration. In calculating Mr. Cherry’s

sentencing range under the United States Sentencing Guidelines, the court applied

USSG §§ 2K2.1(c)(1)(B) and 2A1.3 to set his offense level as if he had

committed voluntary manslaughter. Mr. Cherry appeals, contending that the

offense-level calculation was incorrect because there was no proof that he fired

the fatal bullet. We have jurisdiction under 28 U.S.C. § 1291 and affirm. 

I. BACKGROUND

The gun fight occurred on April 27, 2007, in Idabel, Oklahoma. The victim

was Chris Moore. Earlier that day, Moore had made threatening gestures

(displaying gang signs and a red bandana) in a confrontation with two of

Mr. Cherry’s cousins. In the evening the same cousins, accompanied by

Mr. Cherry’s brother and some other associates, again encountered Moore in the

Hillcrest area of Idabel. After a few remarks from Moore and his companions,

Mr. Cherry’s cousin phoned him to report that Moore and others were giving them

trouble. Mr. Cherry drove to Hillcrest. When he arrived, he stopped his car in

the middle of the road, jumped out with a gun in his hand, and cocked the gun. 

He exchanged words with Moore’s group, threatening to kill them. Gunfire broke

out. Several persons on both sides, including Mr. Cherry and Moore, fired shots. 

Law-enforcement officers called to the scene found Moore on the ground and he
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was later pronounced dead. No bullet was recovered from his body. Who fired

the fatal round is thus an open question.

Mr. Cherry, who had a prior felony conviction for methamphetamine

possession, was charged with being a felon in possession of a firearm, and he

pleaded guilty. The probation office prepared a presentence report (PSR) that

calculated Mr. Cherry’s base offense level using USSG § 2K2.1, the guideline for

violations of 18 U.S.C. § 922(g). The guideline contains a cross-reference

providing that the offense level for homicide may be applicable. It states:

If the defendant used or possessed any firearm or ammunition in

connection with the commission or attempted commission of another

offense . . . apply— 

. . .

(B) if death resulted, the most analogous offense guideline from

Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense

level is greater than that determined [under the preceding provisions

of § 2K2.1]. 

USSG § 2K2.1(c)(1). Although the PSR noted that Mr. Cherry had been charged

in Oklahoma state court with second-degree murder stemming from the April 27

gun fight, it selected a lesser offense, voluntary manslaughter, as the most

analogous. Therefore it applied the voluntary-manslaughter guideline, USSG

§ 2A1.3, which set Mr. Cherry’s base offense level at 29. The PSR then

subtracted three points for Mr. Cherry’s acceptance of responsibility, resulting in

a total offense level of 26. (As required for the cross reference to apply, this total
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exceeded the adjusted offense level of 15 that the PSR had calculated under the

other provisions of § 2K2.1.) 

The district court held an evidentiary hearing at which both Mr. Cherry and

the government presented witnesses concerning the events of April 27. At

sentencing, the court ruled that Mr. Cherry’s conduct in connection with his

possession of a firearm was a but-for cause of Moore’s death. The court agreed

with the PSR that it was appropriate to apply the guideline for voluntary

manslaughter. It noted that 18 U.S.C. § 1112 “defines manslaughter as the

unlawful killing of a human being without malice” and found that “Mr. Cherry’s

actions appear[ed] to have been made with spontaneity in the heat of passion.” It

rejected application of the involuntary-manslaughter guideline, saying that

Mr. Cherry’s “action further appears to have been acted out with design and

intention, and would not amount to an involuntary act.” R. Vol. II Doc. 52 at 4. 

With a criminal-history category of IV, Mr. Cherry had a guideline range of 92 to

115 months, and the court imposed a 94-month sentence. 

II. DISCUSSION

When considering a district court’s application of the guidelines, “we

review legal questions de novo and we review any factual findings for clear error,

giving due deference to the district court’s application of the guidelines to the

facts.” United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006) (internal

quotation marks omitted). We review de novo whether the facts found by the
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court support the application of the guideline it selected. See United States v.

Fortier, 180 F.3d 1217, 1225 (10th Cir. 1999). 

In applying the § 2K2.1(c)(1) cross reference to the homicide guidelines in

§ 2A1, the court may look to the federal homicide statutes that correspond to the

various § 2A1 guidelines. See, e.g., id. at 1228 (rejecting application of

voluntary-manslaughter guideline as most analogous after referencing elements of

18 U.S.C. § 1112(a)); see also United States v. Nichols, 169 F.3d 1255, 1273

(10th Cir. 1999). The court, however, is “not bound at sentencing by the terms of

a criminal liability statute” and “a perfect match is not required” between the

defendant’s conduct and the homicide guideline selected as the most analogous. 

Fortier, 180 F.3d at 1229 (internal quotation marks omitted). 

The federal voluntary-manslaughter statute, 18 U.S.C. § 1112(a), defines

the offense as “the unlawful killing of a human being without malice . . . [u]pon a

sudden quarrel or heat of passion.” Mr. Cherry’s sole argument against

application of the voluntary-manslaughter guideline, USSG § 2A1.3, is that there

was no proof that he fired the fatal shot. We are not persuaded. To begin with,

we doubt that such proof is necessary to establish the offense. Although we are

aware of no federal case in point, it appears that criminal liability for homicide

does not turn on proof that the defendant was the actual instrument of the death.

In People v. Kemp, 310 P.2d 680 (Cal. App. 1957), Kemp and a codefendant had

been racing on a residential street when the codefendant’s vehicle struck a third
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car, killing a passenger. The court affirmed Kemp’s conviction of manslaughter,

explaining:

Kemp and [the codefendant] were inciting and encouraging one

another to drive at a fast and reckless rate of speed on a residence

street and as they closely approached a blind intersection. It was by

the merest chance that Kemp was able to avoid hitting the other car,

and that Coffin was not. Only the matter of a split second and a few

inches made the difference. . . . [T]he acts of both led directly to and

were a proximate cause of the result, and the fact that the appellant

happened to narrowly escape the actual collision is not the

controlling element. The evidence is sufficient to show that they

were not acting independently of each other, and that they were

jointly engaged in a series of acts which led directly to the collision.

The language of [California’s manslaughter statute] is broad enough

to impose criminal liability in this situation . . . . 

Id. at 683; see People v. Sanchez, 29 P.3d 209, 216–18 (Cal. 2001) (discussing

Kemp with approval and affirming first-degree murder conviction of defendant

who had engaged in gun battle even though evidence did not show which

participant’s gun had fired shot killing innocent bystander); Commonwealth v.

Gaynor, 648 A.2d 295 (Pa. 1994) (duel participant guilty of first-degree murder

of bystander despite other participant’s firing fatal shot). 

Moreover, even if the federal offense of voluntary manslaughter did not

encompass Mr. Cherry’s conduct, we still think it was a proper analogy for

purposes of the sentencing guidelines. (In our view, the district court may have

been lenient in not analogizing Mr. Cherry’s conduct to a more serious form of

homicide.) The district court found that Mr. Cherry precipitated the gun battle
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that led to Moore’s death and that he had the requisite intent for voluntary

manslaughter. It was only fortuitous if his shot was not the one that killed Moore.

III. CONCLUSION

We AFFIRM the judgment of the district court.