United States Court of Appeals

For the Eighth Circuit 

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No. 21-2094

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United States of America

 Plaintiff - Appellee

v.

Teron Deachon Conley

 Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Eastern

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Submitted: April 14, 2022

Filed: July 28, 2022

[Unpublished]

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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges. 

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PER CURIAM.

Teron Deachon Conley was present with companions in a neighborhood in 

Davenport, Iowa around midnight on September 17, 2019. One of Conley’s 

companions quarreled with residents of the neighborhood, took out a firearm, and 

started shooting toward where the residents sat on the porch of a duplex. Conley

then took the firearm. He first advanced toward the duplex and “let off multiple 
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rounds” aiming “towards the house.” One witness testified that Conley was 

“shooting at other individuals” and approaching them “like [the] Terminator.” A 

neighbor, Jesse Howard, approached the duplex as Conley fired, concerned for the 

children inside. Conley fired in Howard’s direction and ran toward him, forcing him 

to take cover behind a van. As he hid, Howard felt “bullets . . . hitting the van” and 

“hear[d] bullets flying by” and striking nearby objects. At least two bullets struck 

the van. Eventually, Conley and his companions fled in their vehicle and were 

arrested following a car chase, crash, and flight on foot. 

Conley pleaded guilty to possession of a firearm as a convicted felon in 

violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1 applied a crossreference to the attempted-murder guideline, adopting the presentence investigation 

report’s advisory sentencing guidelines range of 92 to 115 months’ imprisonment. 

See U.S.S.G. §§ 2K2.1(c)(1)(A), 2X1.1(c), 2A2.1(a)(2). The district court applied 

this cross-reference because it found that Conley possessed the firearm while he 

attempted second-degree murder, acting with “malice aforethought.” Conley was 

sentenced to 96 months’ imprisonment. He appeals, claiming the application of the 

attempted-murder cross-reference was erroneous.

Ordinarily, “[w]e review the district court’s construction and application of 

the sentencing guidelines de novo and its factual findings for clear error.” United 

States v. Hagen, 641 F.3d 268, 270 (8th Cir. 2011). “Clear error exists where, 

viewing the record as a whole, this court is left with the definite and firm conviction 

that a mistake has been committed.” United States v. Thurmond, 914 F.3d 612, 613-

14 (8th Cir. 2019) (internal quotation marks omitted). Arguments raised for the first 

time on appeal, however, are reviewed for plain error. United States v. Callahan, 

800 F.3d 422, 425 (8th Cir. 2015); United States v. Pirani, 406 F.3d 543, 549 (8th 

Cir. 2005); see also United States v. Perrin, 926 F.3d 1044, 1046 (8th Cir. 2019) 

(holding that it was immaterial that the government failed to argue plain-error review 

1

The Honorable John A. Jarvey, then Chief Judge, United States District Court 

for the Southern District of Iowa, now retired.
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applied). On plain-error review, we will reverse only if the defendant “demonstrates 

(1) error, (2) that is plain, and (3) that affects his substantial rights. Even if these 

three prongs are satisfied, we should only exercise our discretion to correct plain 

error if the error seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.” United States v. Ralston, 973 F.3d 896, 908 (8th Cir. 2020)

(brackets omitted). 

Conley argues that the application of the cross-reference was erroneous 

because (1) “specific intent to kill,” not “malice aforethought,” is the applicable 

mens rea standard; (2) Conley’s conduct did not establish specific intent to kill; and

(3) Conley acted in self-defense. We disagree.

 

The guidelines direct that if a defendant unlawfully possessed a firearm “in 

connection with the . . . attempted commission of another offense,” then courts 

should apply § 2X1.1. § 2K2.1(c)(1)(A). Section 2X1.1(c)(1) provides that “[w]hen 

an attempt . . . is expressly covered by another offense guideline section, apply that 

guideline section.” Attempted murder is expressly covered by § 2A2.1(a), which 

establishes a base offense level of 33 “if the object of the offense would have 

constituted first degree murder” and a base offense level of 27 “otherwise.” “Murder 

is the unlawful killing of a human being with malice aforethought.” 18 U.S.C. 

§ 1111(a); cf. U.S.S.G. § 2A2.1 cmt. n.1 (referring to the federal murder statute for 

the determination of what constitutes first-degree murder). A defendant acts with 

malice aforethought if he acts with specific intent to kill—the intention of “tak[ing]

the life of a human being”—or acts “in callous and wanton disregard of the 

consequences to human life.” United States v. Comly, 998 F.3d 340, 343 (8th Cir. 

2021).

Conley cites Braxton v. United States, 500 U.S. 344 (1991), for the 

proposition that the proper standard is specific intent to kill and not the broader 

standard of malice aforethought, which encompasses both specific intent to kill and

callous and wanton disregard of the consequences to human life. See United States 

v. Johnson, 879 F.2d 331, 334 (8th Cir. 1989). Because Conley did not make this 
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argument before the district court, we review it for plain error. See Pirani, 406 F.3d 

at 549 (applying plain-error review where the defendant objected to a crossreference in the presentence investigation report but did not allege the specific legal 

error argued for the first time on appeal). In Braxton, the Supreme Court reversed 

the district court’s application of U.S.S.G. § 1B1.2(a), which directs sentencing 

courts to determine the applicable guideline section by reference to an offense 

specifically established by a defendant’s stipulation. 500 U.S. at 346-47. Holding 

that the defendant’s stipulation did not establish the offense of attempt to kill a 

federal officer under 18 U.S.C. § 1114, the Court reasoned that the stipulation would 

have needed to establish that the defendant fired at federal officers “with the intent 

of killing them.” Id. at 350-51. In a footnote, it explained that

[s]ince the statute does not specify the elements of “attempt to kill,” 

they are those required for an “attempt” at common law, which include 

a specific intent to commit the unlawful act. Although a murder may 

be committed without an intent to kill, an attempt to commit murder 

requires a specific intent to kill.

Id. at 351 n.* (internal quotation marks and citation omitted); see also United States 

v. Grant, 15 F.4th 452, 458 (6th Cir. 2021) (“[F]or the district court in this case to 

apply the cross-reference for attempted murder in the second degree, the government 

needed to show that [the defendant] had a specific intent to kill when he shot [the 

victim].”). 

Although the district court purported to find “malice aforethought” and did 

not specifically find an intent to kill, the alleged error did not prejudice Conley; that 

is, it did not “affect[] his substantial rights,” see Ralston, 973 F.3d at 908 (brackets 

omitted). “In the context of plain error review, prejudice means that there is a 

‘reasonable probability’ that the error affected the outcome of the proceeding.” 

United States v. Ohlmeier, 25 F.4th 571, 573 (8th Cir. 2022) (quoting MolinaMartinez v. United States, 578 U.S. 189, 194 (2016)). Conley bears the burden of 

proving prejudice. See Pirani, 406 F.3d at 550. “The Supreme Court has instructed 

that proving plain error prejudice ‘should not be too easy’ and ‘demand[s] strenuous 
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exertion to get relief.’” Id. at 552 (quoting United States v. Dominguez Benitez, 542 

U.S. 74, 82 (2004)). 

Conley has not met his burden. The district court’s ruling that Conley 

“clearly” acted with malice aforethought followed the Government’s argument that 

“the intended target was Jesse Howard,” an argument consonant with a specificintent-to-kill theory. See Grant, 15 F.4th at 458 (“[O]ne cannot intend to commit a 

reckless murder.” (internal quotation marks omitted)). The Government also 

advanced an argument sounding in recklessness, describing Conley as shooting his 

weapon while “walking around towards where the victims are scattering.” See 

Johnson, 879 F.2d at 334. But in finding that Conley committed “attempted 

murder,” the district court endorsed only the Government’s first argument, stating 

that “Mr. Howard is the victim of this attempted shooting” because Conley was 

“firing into the vehicle where Mr. Howard [wa]s ducking to avoid fire.”

Ample case law shows that similar behavior demonstrates specific intent to 

kill. See, e.g., Grant, 15 F.4th at 458 (“[W]e have upheld a district court’s finding 

of the intent to kill based solely on the fact that the defendant shot in the victim’s 

direction such that the bullet could have struck her.” (brackets omitted)); Ngo v. 

Giurbino, 651 F.3d 1112, 1114 (9th Cir. 2011) (“[W]hen shots are fired toward a 

group of people, the jury may draw a reasonable inference from all the circumstances 

that the shooter intended to kill every person in the group.”); Nelson v. Thieret, 793 

F.2d 146, 148 (7th Cir. 1986) (holding that evidence sufficiently supported specific 

intent to kill where the defendant pointed a weapon at another person and fired); see 

also United States v. Wilson, 992 F.2d 156, 158 (8th Cir. 1993) (affirming the district 

court’s application of a cross-reference for assault with intent to commit first-degree 

murder where the defendant fired a shotgun out of a vehicle toward a group of 

people). Accordingly, Conley cannot show a reasonable probability that the alleged 

error affected the outcome of the proceeding. Cf. United States v. Farah, 899 F.3d 

608, 615 (8th Cir. 2018) (holding that it was harmless beyond a reasonable doubt to 

omit a jury instruction stating that an offense required proof of specific intent to kill 
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where it was clear that “the jury would have convicted [the defendants] . . . even if 

the district court had adopted [the] instruction”).

 

We next address Conley’s theory of self-defense. For the cross-reference to 

apply, the government must prove the absence of any defense by a preponderance 

of the evidence. United States v. Tunley, 664 F.3d 1260, 1262 (8th Cir. 2012).

We agree with the district court that Conley’s theory of self-defense is too 

speculative. Although Conley’s expert opined, based on three shell casings found 

on the scene that were connected to an unknown firearm and a bullet hole in the 

house across the street, that there was another shooter firing at Conley’s group, the 

Government’s evidence strongly indicated that Conley was an aggressor. See United 

States v. Mattox, 27 F.4th 668, 677 (8th Cir. 2022) (holding that the “district court 

did not clearly err in finding that [the defendant] did not act in self-defense” where 

video evidence depicted the defendant shooting at an armed person who was firing 

back).

For the foregoing reasons, we affirm Conley’s sentence. 

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