NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0736n.06 No. 10-6558 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. CL I NTON TU RNER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TENNESSEE

Be fore : BATCHEL DER, Chief J udg e; MARTI N and KE THL EDGE, Circuit Judges. KETHL EDGE, Ci rcuit J udg e. Clint on Turner arg ues t hat t he dis trict court miscalculate d his rec ommended sentenc e when it applied a cross ref ere nce to att em p t ed s econd- deg ree murder based on a depra

ved hear t. The United States ag ree s. The pa rties ar e rig ht, so we vac ate Tur ner’ s sentenc e and r emand f

or re sentenc ing. The fac ts, as the district cou rt fo u n d them, show that on Aug ust 9, 2009, Turner —while under the influence of alcohol, presc ription medication, and cra ck coca ine—came out of his home wielding a shotgun. There he met his wife, Bonnie Ruffin, and two others. Turner fired the shotgun

once into the air and then pointed it a t Ruff in a nd the others, but did not f ire. Another man, J ames Gates, attempted to wre stle the g un awa y from Turner

. I n the ensuing strug g le, the g un went off andNo. 10-6558

United States v. Turner
sever ely injured Ruffin. The district court found at sentenc ing that Turner ’s actions wer e extremely

rec kless, but that Turner

did not intend to kil l Ruffin (or a ny one else ). Turner pled g uilty to being a felon in possession of a firea rm. His prese ntence investiga tion repor t calcu l at ed a b ase offe nse level of 33 based on a cross ref ere nce to attempted first-deg ree murder under § 2A2.1(a )(1) of the Guidelines. The district court reje cted that cross ref ere nce in light of its finding that Turner did not inte n d t o kill Ruffin. At the g overnme nt’s urg ing, howeve r, the court applied a cross ref

ere nce to attempted se c o n d

- d e g r ee murder under § 2A2.1(a )(2) , on the theory that Turner

acte d with a depr aved he art. The g overnme nt has since chang ed its mind, conce ding that Turner should not have rec eived the cross ref

ere nce to § 2A2.1(a )(2)

. The g overnme nt is corr ect. Under fede ral law, a defe ndant cannot be g uilty of attempted murder without a specific intent to kill. See Braxton v. United States , 500 U.S. 344, 351 n.* (1991) (quoting 4 C. Torcia , W harton’s Criminal Law § 743, p. 522 (14th ed. 1981)) (“A lthough murder may be committed without an intent to kill, an attempt to commit murder

re q u i re s a specific intent to kill”). The same is true under Tenne ssee state law. See Sta t e v. Kimbrough , 924 S.W .2d 888, 891 (Tenn. 1996). S imply stated, the cross ref ere nce here was to a crime tha t does not exis t. See generally2 Way ne R. L afa

ve, Substantive Criminal L aw § 11.3(a) , at 212–13 (2d e d. 2003) (f ootnotes omitt ed). The err oneous cross ref

ere nce cause d the district court to miscalculate Turner ’s Guidelines rang e, which in turn makes his sentenc e proce durally unrea sonable. See Gall v. United States , 552 U.S. 38, 51 (2007). Thus, we vaca te Turne r’s sente nce a

nd rema nd for r e-se ntencing

.

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