NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1215n.06 No. 12-5027 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintif f-Appellee ,

v. MARCUS DEAN, a/k/a MARCUS L EE Defendant-

Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE O P I N I O N

BEF ORE: DAUGH TREY, COL E, and GI BB ONS, Circuit J udg es. COL E, Circuit J udg e. Def endant- Appellant Marc us Dea n pled g uilty to attempted robber y , in violation of 18 U. S

. C

. § 1951 (Count 1); the use or car rying of a firea

rm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 2); and bein g a fe l o n in possession of ammunition, in vi o l ation of 18 U.S.C. § 922(g ) (Count 3). He now appea ls his sentenc e. For the

rea sons that follow, we a ffirm. I . BA CKGROUND On J uly 21, 2010, at approximately 11:00 p.m., Marc us Dea n enter ed the Americ an I nn Hotel i n M em p h is, Tenne ssee, and rang the bell for assistance

. When Dipesh Patel, a hotel employ ee , g ree ted Dea

n at the courte sy window, Dea n said to him, “Give me whateve r y ou have or I will shoot y ou.” As Patel turned to run, Dea n shot him in the rig ht l o we r h ip. Offic ers wer e aler ted to a robber y and dispatche d to the scene , wher e they rec overe d one spent shell ca sing.No. 12-5027

United States v. De an As a result o f the shooting, Patel suffe red perma nent and debilitating injuries, including damag e to his intestines and colon, and para ly sis for two and a half months. Patel rema ins confine d to a wheelcha ir and is unable to work. Patel h as only a one perc ent chance that he will ever walk ag ain. Following Dea

n’s g uilty plea to all three counts, the U. S

. P robation and Pretrial Service s prepa red a Presentenc e I nvestig ation Report (PSR), rec ommending a base offe nse level of 33. This offe nse level was rea ched by cross-r efe renc ing to U.S.S.G. §§ 2K2.1(c )(1) (A), 2X1.1, and 2A2.1. The base offe nse level for a felon in possession of ammunition is found at § 2K2.1. I f the defe ndant used the firea

rm or ammunition in connec tion with the commiss ion or attempted commission of another offe nse, § 2K2.1 require s appli cation of § 2X1.1. § 2X1.1(c ) require s application of § 2A2.1, the Guideline f

or attempted murde r, which se ts the base of fense level at 33. The PSR added four levels pursuant to § 2A2.1(b)( 1)(A) beca use Patel suffe red a perma nent

or life threa tening injury , which resulted in a total offe nse level of 37. Ba sed on this and on Dea n’s criminal history cate g ory of V, the PSR rec ommended a restric ted Guideline custody rang e of 324 to 360 months. I n addition, the § 924(c) conviction car ries a minimum sentenc e of ten y ear s to be

serve d consec utively

to any other ter m of imprisonment. 18 U.S.C. § 924(g). At Dea n’s sentenc ing hear ing, the district court considere d whether Dea n possessed the specific intent nece ssary to have committed attempted murder. T h e co urt hear d testimony from J ames Tay lor, an officer with the M emphis Police Depa rt m en t and a member of the FBI Robbery Task For ce, who had revie wed the hotel’s secur ity video and interviewe d Patel, and conclude d that the shooting was not ac cidental. The video showed D ean c hamber ing a round in his .9 milli meter - 2 -No. 12-5027

United States v. De an automatic pistol, rea ching throug h an opening in the secur ity g lass at the courte sy window, and firing

one round at Patel. Taylor stated that “an acc ident would have been shooting the gu n i n t o t h e counter .” Dea

n has consist ently maintained, however, that the gun we n t o ff acc identally and that he lac ked spec ific intent to kill P atel. The district court found by a preponde ranc e of the evidence that the cross ref ere nce to attempted murder in the PSR was corr ect beca use Dea n attempted to murder Patel. The court based its decision on the following fac ts: (1) De an t h re at ened to shoot Patel; (2) as Patel fled, Dea n chambe red a round i n his pistol; and (3) Dea n stu ck his arm through the hole i n the s ecur ity g lass and fire d in Patel’s direc tion. Fr om the offe nse level of 37 rec ommended in the PSR , the district court lowere d Dea n’s total offe nse level by three levels to 34, g iving Dea n full cre dit for acc epting responsibility

. This resulted i n a Guideline rang e of 235 to 293 months for Counts 1 and 3. The court sentenc ed Dea n to 2 0 0 months of imprisonment as to Count 1 and 120 months of imprisonment as to Count 3, to be serve d

concur rently with the sentenc e for Count 1. I n addition, the court sentenc ed Dea n to the mandatory sentenc e of 120 months as to Count 2, to be serve d consec utively to the sentenc es for Counts 1 and 3

. This resulted in an eff ective sentenc e of 320 months. The court also imposed two y ear s of supervised r elea se. This appe al followed. I I . ANAL YSI S We revie w the district court’s sentenc ing judgme nt for rea sonablene ss u n der an abuse- ofdiscretion standard. Gall v. United States , 552 U.S. 38, 51 (2007). We must “ensur e that the district

cour t co m m i t t ed no signific ant proce dural err or, such as failing to calc ulate (or improperly - 3 -No. 12-5027

United States v. De an

ca l cu l at ing) the Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider th e § 355 3 (a ) fac tors, selec ting a sentenc e based on clea rly err oneous fac ts, or failing to adequately explain the chosen sente n c e

— in c lu d in g a n e xp la n a ti o n f o r a ny d e v iation from the Guidelines rang e.” Id. I n doing so, we “‘a cce pt the finding s of fac t of the district court unless they are clea rly err oneous and

. . . g ive due defe renc e to the district court’s application of the g uidelines to the fac ts.’” United States v. W

illiams , 355 F.3d 893, 897-98 (6th Cir. 2003) (quoting 18 U.S.C. § 3742 (e ))

. “A l l

. . . finding s of fact t hat are crucial to a determination of a defe ndant’s base offe nse l evel

. . . m ust be based on a prepo n d er an ce of t he evidence.” United St ates v. Russell , 156 F.3d 687, 690 (6th Cir. 1998) (c itations omi tted). Dea n makes two m ai n ar gu m en ts: (1) the district court clea rly err ed in finding that he possessed the specific intent nece ssary to commit attempted murder; and (2) if the district court had to apply a cr oss refe renc e, it should not have used § 2A2.1. First, Dea n contends that the shooting was an acc ident. He argues that chambe ring a round in the pistol was just as consistent with an intent to frig hten Patel as it wa s with a specific intent to kill. Dea n also disputes T ay

lor’s statement that an ac cidental shooting would have hit the counter rathe r than Patel. To commit attempted murder, a defe ndant m u s t p o s sess the s pecif ic i ntent to kill. United States v. Turner , 436 F. App’x. 631, 631 (6th Cir. 2011) (citing Braxton v. United States , 500 U.S. 344, 351 n.* (1991)). The district court did not clea rly err in finding the requisite intent. The evidenc e shows that Dea

n threa tened to shoot Patel, chambe red a round, extended his arm throug h the hole in the sec urity

g lass, and fire d in Patel’s direc tion.

- 4 -No. 12-5027

United States v. De an Under the clea

r err or standard, we “‘w ill not reve rse a lower court’s finding s of fac t simply beca use [ we] would have decided the case differ ently .’” United St ates v. Orlando , 363 F.3d 596, 603 (6th Cir. 2004) (quoting Easley v . Cromartie , 532 U.S. 234, 242 (2001) (additional quotation marks and citation omitted)). I nstead, we must deter mine “‘whether on the entire evidenc e [we are ] left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Easley , 532 U.S. at 242) (c itations omi tted). “[T]he fac t that there is evidenc e in the re cord to support [a] finding is sufficie nt to prec lude us from s e c o n d g u e s s ing the [di strict] court’s deter mination.” United States v. W

heaton , 517 F.3d 350, 369 (6th Cir. 2008) (citation omitted). Her e, the evidenc e supports the district court’s f

inding of a spec ific intent to kill. Given this fac tual finding , the district court was bound to apply the g uidelines for attempted murder, not the robber

y g uidelines as Dea

n argues. See United States v. Helton , 32 F. App’x. 707, 715 (6th Cir. 2002) (noting that when the district court sent en ce s u n d er U.S.S.G. § 2K2.1, the Guideline for f

elon-in-possession of a

firea rm or ammunition, and the district c ourt deter mines by

a preponde ranc e of the evidenc e that defe ndant possesses the intent to attempt murder , the district court is bound to apply § 2A2.1, the Guideline for attempted murder)

. Acc ording ly , the district court did not abuse its discretion in apply ing § 2A2.1, and the d i s t ri ct co urt’s cross-r efe renc e was appropr iate. I I I . CONCL USI ON For the re asons stated a

bove, we aff

irm.

- 5 -