In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2068

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TRIMAINE JONES,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01-CR-218—Rudolph T. Randa, Chief Judge.

____________

ARGUED OCTOBER 17, 2002—DECIDED DECEMBER 24, 2002

____________

Before EASTERBROOK, MANION, and KANNE, Circuit

Judges.

KANNE, Circuit Judge. Appellant Trimaine Jones appeals his sentence on a felon in possession of a firearm

charge. He argues that the district court incorrectly applied the homicide cross-reference found in § 2K2.1(c) of

the federal sentencing guidelines, resulting in an incorrectly increased base offense level and sentence. Because

we believe the district court did not err in applying the

cross-reference, we affirm the sentence imposed below.

I. History

On August 28, 2001, Trimaine Jones was indicted by a

federal grand jury on two counts: (1) being a felon in
2 No. 02-2068

possession of a firearm and (2) being a felon in possession

of ammunition. While these charges were pending, on

September 6th, Trimaine was released from custody on

his own recognizance, under the condition that he reside

at a halfway house. Unfortunately, on September 20th, he

disappeared from the halfway house and a warrant was

issued for his arrest. It was not until October 4th, after

Trimaine was involved in an armed robbery that resulted

in the death of a sixteen-year-old boy, that he was reapprehended.

On September 30th, Milwaukee police officers were

called to the scene of a robbery and shooting. There they

found sixteen-year-old Jemarcus Beck shot to death. After

some investigation, the police determined that Trimaine,

his brother Neimyiah, and their friend Rashaad Cotton

were responsible for the robbery and murder. Earlier that

day, the three had agreed to commit a robbery, driving

around in Cotton’s car until they happened upon three

teenage males. At that point, Cotton stopped the car, and

Neimyiah and Trimaine—both armed—got out and approached the young men. While two of them fled safely,

Beck could not get away. Neimyiah demanded that

Beck give up his money, and when he did not act quickly

enough, Neimyiah shot him. Cotton and the Jones brothers fled. Beck was pronounced dead at the scene.

On October 4th, Milwaukee police had begun a search

for the Jones brothers after concluding that they were

involved in the September 30th armed robbery and murder. As the arresting officers took Neimyiah into custody,

they saw Trimaine walking by the scene. The police ordered him to stop, but instead he fled. During a brief

foot pursuit, the police saw Trimaine clutch at the waistband of his pants. The police eventually arrested Trimaine

as he attempted to scale a fence; a black 9mm semi-automatic handgun was found at the base of the fence where

Trimaine had attempted to climb it. Trimaine later ad-
No. 02-2068 3

mitted to the police that he had been in possession of the

gun found at the scene and had possessed that same gun

during the September 30th robbery.

Trimaine was subsequently indicted by a second federal

grand jury on one count of being a felon in possession of

a firearm, based on his October 4th arrest. On December

3rd, Trimaine was found guilty on both counts charged

in the first indictment, and was later sentenced to 70

months incarceration on those charges. On March 6, 2002,

Trimaine pleaded guilty to the second felon-in-possession charge, pursuant to an agreement with the government, and was sentenced to 120 months imprisonment

on this count. It is this second sentence at issue in this

appeal.

II. Analysis

In reviewing the sentence imposed by the district court,

we review factual determinations underlying the application of the sentencing guidelines for clear error; interpretation of a guidelines provision is a legal question we review de novo. United States v. Taylor, 272 F.3d 980, 982

(7th Cir. 2001). Application of the homicide cross-reference

is reviewed for clear error. United States v. Westmoreland,

240 F.3d 618, 635 (7th Cir. 2001).

Generally, the federal sentencing guideline applicable

to a violation of 18 U.S.C. § 922(g)(1), prohibiting possession of a firearm by a felon, is § 2K2.1, which provides for

varying base offense levels depending on the offense and

offender characteristics. See U.S.S.G. § 2K2.1(a), (b) (2002).

Additionally, § 2K2.1(c) provides for a “Cross Reference,”

authorizing a sentencing court to look to other guidelines

provisions to impose a higher sentence on an offender under certain circumstances. In this case, Trimaine was sentenced pursuant to the homicide cross-reference found in

§ 2K2.1(c)(1)(B):
4 No. 02-2068

1 The district court apparently reached this base offense level by

“splitting the difference” between a base offense level of 33 for

second-degree murder, U.S.S.G. § 2A1.2, and a base offense level

of 25 for voluntary manslaughter, U.S.S.G. § 2A1.3. We have

previously endorsed such an approach. See United States v. Walls,

80 F.3d 238, 242 (7th Cir. 1996) (“In following the cross-referencing dictates of U.S.S.G. § 2K2.1(c), the district court is permitted to use common sense in identifying the ‘analogous’ variety

of homicide, a necessarily fact-intensive endeavor . . . . The district court did not err in identifying Walls’ conduct as falling

halfway between second-degree murder and manslaughter.”

(citation omitted)).

If the defendant used or possessed any firearm . . . in

connection with the 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 above.

U.S.S.G. § 2K2.1(c)(1). The district court reasoned that

because Trimaine had been arrested for possession of the

same firearm he had previously used during the armedrobbery/felony-murder incident four days earlier, the

homicide cross-reference applied. Employing that provision, the district court determined Trimaine’s base offense

level to be 29,1

 adjusted that level downward to 26 based

on the defendant’s acceptance of responsibility, and accordingly sentenced Trimaine to the statutory maximum

of 120 months imprisonment. According to the presentence investigation report, had the district court found

the homicide cross-reference inapplicable, Trimaine would

have faced a base offense level of 20, with a corresponding sentence range of 63 to 78 months.

In this appeal, Trimaine argues that it was error for the

district court to consider the armed-robbery/felony-murder episode of September 30th in determining his base
No. 02-2068 5

2 As we noted in United States v. Ritsema, the language of

§ 2K2.1’s cross-reference provision is no more specific than that

of § 1B1.3(a), and therefore does not preempt application of the

relevant conduct guideline’s definitions. 31 F.3d 559, 565 (7th Cir.

1994); see also U.S.S.G. § 1B1.3 cmt. background (“Subsection (a)

establishes a rule of construction by specifying, in the absence

of more explicit instructions in the context of a specific guideline,

the range of conduct that is relevant to determining the applicable offense level . . . .” (emphasis added)). We therefore focus our inquiry on the definition of relevant conduct found in

§ 1B1.3(a).

offense level. Essentially, Trimaine contends that the

armed robbery/felony murder was not “relevant conduct”

that should have been considered in determining his

sentence. He concedes that the sentencing court is free

to look beyond the conduct of the offense of conviction;

the issue in this appeal is how far beyond the offense of

conviction the district court was permitted to reach to determine an appropriate sentence.

We begin by emphasizing that the language of the

guidelines and decisions by this Court make clear that

§ 1B1.3, the relevant conduct provision of the guidelines,

governs the application of the homicide cross-reference

found in § 2K2.1(c).2

 “The general principle which controls

whether a cross-reference is appropriate is the relevant

conduct guideline. . . . [but] [t]he relevant conduct guideline is not without limits.” Taylor, 272 F.3d at 982-83

(citation omitted). Specifically, the relevant conduct provision states:

Unless otherwise specified, (i) the base offense level

where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii)

cross references in Chapter Two . . . shall be determined

based on the following:
6 No. 02-2068

(1)(A) all acts and omissions committed, aided,

abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant . . .

that occurred during the commission of the offense

of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that offense . . . .

U.S.S.G. § 1B1.3(a). This section thus constrains what

conduct a sentencing court may consider when determining the appropriate base offense level, cross-references,

and adjustments for a particular offender. We note that

the relevant conduct guideline is not limited temporally:

“the Relevant Conduct provision directs a court to sentence a defendant for uncharged conduct germane to the

charge-offense by authorizing it to consider events before,

during, and after the offense conduct.” United States v.

Ritsema, 31 F.3d 559, 566 (7th Cir. 1994).

Therefore, before the district court could apply the

§ 2K2.1 homicide cross-reference to Trimaine, it was required to find that the armed robbery/felony murder of

September 30th was relevant to the task of sentencing

him for the firearm-possession offense. Section 1B1.3(a)(1)

sets out three general situations in which conduct will be

considered relevant: conduct that occurs “during the

commission of the offense,” conduct that occurs “in preparation for” an offense, or conduct that occurs “in the course

of attempting to avoid detection or responsibility” for an

offense. U.S.S.G. § 1B1.3(a)(1). In this case, the armedrobbery/felony-murder incident was not conduct “in preparation for” the offense of being a felon in possession of a

firearm, nor was it conduct occurring “in the course of

attempting to avoid detection or responsibility” for that

offense. That leaves the possibility that the armed robbery/felony murder is relevant conduct if it “occurred dur-
No. 02-2068 7

3 It was additionally argued that consideration of the armed

robbery/felony murder as relevant conduct was appropriate under

guideline § 1B1.3(a)(2), which includes within its definition of

“relevant conduct” “all acts and omissions . . . that were part of

the same course of conduct or common scheme or plan as the

offense of conviction,” but only with respect to offenses for which

grouping under § 3D1.2(d) would be required. Grouping would

not be required in this case—in fact, grouping of the felon in possession count with the homicide charge is specifically excluded

from the operation of § 3D1.2(d)—rendering § 1B1.3(a)(2)’s relevant-conduct definition inapplicable here.

ing the commission of the offense of conviction.” We think

that clearly to be the case.3

In United States v. Smith, we approved the sentencing

court’s consideration of the offender’s use of a firearm to

shoot and kill a fellow partygoer when it sentenced that

offender for illegally possessing the firearm as a felon. 5

F.3d 259, 261-62 (7th Cir. 1993). We noted that “[w]hile

Smith carried the handgun, his ‘other offense’ (not his

‘offense of conviction’) involved the death of [the fellow

partygoer].” Id. at 261 (emphasis added). Trimaine’s

conduct during the armed robbery/felony murder is similarly relevant to the charge of being a felon in possession. While Trimaine carried his firearm, he participated

in the armed robbery of September 30th. The armed

robbery/felony murder not only occurred “during the

commission of” the felon-in-possession offense, but

Trimaine’s status as a felon in possession was a factor

enabling him to undertake the armed robbery. The district court did not err in finding this incident to be relevant conduct.

Having concluded that the armed robbery/felony murder was relevant conduct for the purpose of applying

the homicide cross-reference, we must further determine

whether “death resulted” from Trimaine’s use and posses-
8 No. 02-2068

sion of the firearm. Under the terms of § 2K2.1(c)(1)(B),

only if “death resulted” from the use or possession of a

firearm is the homicide cross-reference applicable. We

have previously held that “[t]o determine ‘if death resulted,’ the sentencing court must ascertain whether the

defendant’s conduct was ‘intentional or reckless’ and whether death was ‘a foreseeable risk’ of that conduct.” United

States v. Thomas, 280 F.3d 1149, 1155 (7th Cir. 2002)

(quoting United States v. Walls, 80 F.3d 238, 241 (7th Cir.

1996)). “Generally, this means that the defendant’s possession of a weapon during the commission of another offense

‘put into motion a chain of events that ended in a tragedy.’ ” Id. (citing Walls, 80 F.3d at 241).

We have no hesitation in concluding that Trimaine’s

actions on September 30th were “reckless” and involved

a “foreseeable risk” of death. His participation in the

armed robbery “put into motion” a series of events that

resulted in the death of Jemarcus Beck. Trimaine, his

brother, and his friend agreed to commit an armed robbery,

then drove around in a search of potential victims. When

they came across three young men, Trimaine and his

brother, both armed, got out of the car and confronted them.

While two of the young men fled, the third was told to

give up his property, and when he did not act fast enough,

Trimaine’s brother shot him. Trimaine’s participation

in this incident was reckless and clearly involved a foreseeable risk that one of the robbery victims would be

killed, even if it was not Trimaine’s gun that fired the

fatal shot. Accord Walls, 80 F.3d at 241-42 (approving

application of the § 2K2.1 homicide cross-reference to

a defendant who fired blindly at a house during a gunfight in which an uninvolved neighbor was killed, noting

that “[r]egardless of whether Walls fired the fatal shot, for

purposes of § 2K2.1, Walls’ conduct resulted in [another’s]

death.”); United States v. White, 979 F.2d 539, 545 (7th Cir.

1992) (approving application of the general “death results”
No. 02-2068 9

guideline, U.S.S.G. § 5K2.1, to a defendant who transported a minor across state lines for the purpose of prostitution, when the minor was later killed, presumably by

a customer). We therefore find that “death resulted” from

Trimaine’s participation in the armed robbery.

III. Conclusion

In imposing the sentence at issue in this appeal, the

district court’s decision to consider Trimaine Jones’ participation in the September 30th armed robbery and

accompanying murder—an incident accomplished in part

through the use of the firearm illegally possessed by

Trimaine—simply reflected “the common sense notion

that one who puts a firearm to a nefarious use deserves

a sentence more harsh than one who does no more than

possess the gun.” United States v. Corbin, 998 F.2d 1377,

1385 (7th Cir. 1993). We agree with the district court that

Trimaine’s participation in this armed robbery/felony

murder was clearly “relevant conduct” that resulted in

death, and as such was properly considered in sentencing him on the firearm charge. The sentence imposed by

the district court is therefore AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-24-02