NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 

File Name: 18a0132n.06 

Case Nos. 17-5803/5804 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

BRANDON S. WOODLEY, 

 Defendant-Appellant. 

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

TENNESSEE 

Before: KEITH, KETHLEDGE, and DONALD, Circuit Judges. 

DAMON J. KEITH, Circuit Judge. Appellant Brandon S. Woodley appeals his 

conviction and sentence. Woodley challenges the sufficiency of the evidence underlying his 

conviction and contends that the district court abused its discretion by admitting evidence 

pertaining to his prior firearm possession and his alleged gang affiliation. Additionally, 

Woodley argues that the district court abused its discretion by applying an incorrect sentencing 

enhancement, elevating Woodley’s offense level to 29 after applying a cross-reference guideline 

for attempted voluntary manslaughter. 

I. 

On August 12, 2015, a grand jury indictment was returned, charging Woodley with one 

count of felon in possession of ammunition, in and affecting commerce, in violation of 18 U.S.C. 
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§ 922(g)(1). After a jury trial, a guilty verdict was returned on December 21, 2016. Woodley 

was subsequently sentenced to 120 months of incarceration, to be served consecutively to an 

eighteen-month sentence imposed in connection with a prior offense, followed by a three-year 

term of supervised release. Woodley’s motion for acquittal filed after the return of the jury 

verdict was denied by the district court. Woodley timely appealed his conviction and sentence. 

II. 

A. Sufficiency of the Evidence 

Woodley first challenges the sufficiency of the evidence to sustain his conviction. Upon 

review of a challenge to the sufficiency of the evidence, we must determine “whether, after 

viewing the evidence in the light most favorable to the prosecution, and after giving the 

government the benefit of all inferences that could reasonably be drawn from the testimony, any 

rational trier of fact could find the elements of the crime beyond a reasonable doubt.” United 

States v. Gravely, 282 F. App’x 401, 404 (6th Cir. 2008) (emphasis omitted). “[T]his court does 

not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that 

of the jury.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007) (internal quotations 

omitted). A judgment will be reversed “only if [the] judgment is not supported by substantial 

and competent evidence upon the record as a whole.” United States v. Barnett, 398 F.3d 516, 

522 (6th Cir. 2005). 

The offense at issue, possession of ammunition by a felon, requires the government to 

prove beyond a reasonable doubt that: 1) Woodley had a prior felony conviction; (2) Woodley 

knowingly possessed ammunition; and (3) the ammunition possessed had been transported in or 

affected interstate commerce. See 18 U.S.C. § 922(g)(1); Gardner, 488 F.3d at 713. 
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The record reflects that Woodley stipulated to the first and third elements of the offense, 

leaving element two—knowing possession—the only remaining issue in dispute at trial. During 

Woodley’s trial, the government relied on the testimony of Anthony Hall, who stated that he was 

shot by Woodley in the parking lot of the hotel where he temporarily resided. The jury also 

heard the accounts of two other witnesses, Marco Cianfarani, who testified that he heard a 

gunshot and then observed a man, wearing a red cap and a red hooded sweatshirt, searching the 

ground for what he believed was a shell casing, and Latoysha Burton, who called 911 after the 

shooting.1 In addition to the testimony of Hall, Cianfarani and Burton, physical evidence—

consisting of a live round, found near the sidewalk abutting the hotel, and a shell casing found in 

the parking lot of the hotel—was recovered from the scene of the shooting. Woodley contends 

that this evidence was insufficient to prove that he knowingly possessed ammunition on the date 

of the shooting. We disagree. 

The element of possession can be proven by either direct or circumstantial evidence. 

United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). “Circumstantial evidence alone is 

sufficient to sustain a conviction and such evidence need not remove every reasonable 

hypothesis except that of guilt.” Barnett, 398 F.3d at 522. Based on the record evidence, we 

find that a reasonable jury could have found that Woodley knowingly possessed the ammunition 

recovered from the scene of the shooting. This satisfactory showing of element two of the 

offense, coupled with Woodley’s stipulation of elements one and three, proves sufficient to 

sustain Woodley’s conviction of the charged offense. 

B. Admission of Prior Firearm Possession and Gang-Related Evidence 

Next, Woodley asserts that the district court abused its discretion by allowing evidence of 

Woodley’s prior firearm possession and gang affiliation to be heard by the jury at trial. We 

 

1

 Woodley testified that he was wearing a red sweatshirt on the night of the shooting. 
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review evidentiary rulings for an abuse of discretion. United States v. Allen, 619 F.3d 518, 523 

(6th Cir. 2010). An abuse of discretion occurs when the district court “relies on clearly 

erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal 

standard.” Id. 

Character evidence and other evidence of crimes, wrongs, or prior acts are generally 

inadmissible to prove a defendant’s propensity towards committing an alleged offense. See Fed. 

R. Evid. 404. Pursuant to Federal Rule of Evidence 404(b)(2), however, evidence of prior acts 

“may be admissible for another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 

404(b)(2). “Prior to admitting Rule 404(b) evidence, the district court must: (1) make a 

preliminary finding as to whether sufficient evidence exists that the prior act occurred; 

(2) determine whether the other act is admissible for one of the proper purposes outlined in Rule 

404(b); and (3) apply Rule 403 balancing to determine whether the evidence’s probative value is 

substantially outweighed by the danger of unfair prejudice or the other concerns embodied in 

Rule 403.” Allen, 619 F.3d at 523.2

 

Woodley challenges the admissibility of testimony relating to his prior firearm possession 

and his involvement with a gang, asserting that the prejudice of said evidence outweighed its 

probative value. As to the evidence relating to Woodley’s prior firearm possession, the court 

found that evidence intimating that the defendant previously and regularly possessed a firearm 

was admissible for a proper purpose, specifically, the defendant’s opportunity to commit the 

shooting at issue in this case. Where, as here, the evidence relating to Woodley’s prior firearm 

possession was directly related to Woodley’s opportunity to have carried out the offense against 

Hall on the night of the shooting, the district court’s admission of the prior possession evidence 

 

2

 The government filed a notice of its intent to use Rule 404(b) evidence prior to trial. 
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was not an abuse of discretion. Moreover, limiting instructions were given to the jury in relation 

to the testimony of Casey Howren, Woodley’s ex-girlfriend, Burton and Hall regarding 

Woodley’s prior use and possession of a firearm, further protecting the defendant from the 

occurrence of any unfair prejudice on account of the evidentiary admission. 

As to the gang-related evidence, the district court held that is was admissible for the 

purpose of demonstrating Woodley’s motive for shooting Hall. But for Hall’s earlier testimony 

that a conversation about Woodley’s gang affiliation sparked a disagreement between the two, 

ultimately initiating the breakdown in his friendship with Woodley, gang evidence would likely 

be inadmissible. However, here, Woodley’s gang affiliation was probative of the deteriorating 

relationship between Woodley and Hall, and furthered the government’s theory that this incident 

with Woodley, where he confronted Hall about allegedly speaking to a member of another gang, 

initiated a shift in the relationship and contributed to Woodley’s motive for shooting Hall. 

Woodley points to no occurrence in the record which would indicate that the limited reference to 

Woodley’s gang affiliation was unduly prejudicial or unfairly affected the outcome of the case; 

thus the district court’s admission of relevant gang-related evidence was not an abuse of 

discretion. See United States v. Anderson, 333 F. App’x 17, 24 (6th Cir. 2009) (“Even if the trial 

court abused its discretion in admitting gang evidence, . . . a defendant is not entitled to reversal 

of his conviction if admission of the evidence was harmless.”). 

C. Application of the Cross-Reference Guideline for Attempted Voluntary Manslaughter

Woodley contends that the district court erred in denying his objections to the 

presentence investigation report (“PSR”), primarily his objection to the application of a cross-
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reference offense level for attempted voluntary manslaughter.3

 In reviewing the district court’s 

application of the United States Sentencing Guidelines (“U.S.S.G.”), “[t]he district court’s 

interpretation of the advisory Guidelines is reviewed de novo, and its findings of fact are 

reviewed for clear error.” United States v. Harris, 552 F. App’x 432, 436 (6th Cir. 2014) 

(quoting United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009)). The Sentencing Guidelines 

corresponding to crimes involving the unlawful receipt, possession or transportation of firearms 

or ammunition are outlined in U.S.S.G. § 2K2.1. 

Section 2K2.1’s cross-reference provision instructs: 

[i]f the defendant used or possessed any firearm or ammunition 

cited in the offense of conviction in connection with the 

commission or attempted commission of another offense, or 

possessed or transferred a firearm or ammunition cited in the 

offense of conviction with knowledge or intent that it would be 

used or possessed in connection with another offense, apply . . . 

§2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that 

other offense, if the resulting offense level is greater than that 

determined above . . . . 

“District courts may cross-reference under § 2K2.1 only where a preponderance of the 

evidence supports the conclusion that the defendant committed or attempted to commit the 

offense that provides the cross-reference.” United States v. Frost, 521 F. App’x 484, 490 (6th 

Cir. 2013). “We afford due deference to the district court’s determination that a cross-reference 

to the Homicide Guidelines was necessary.” Harris, 522 F. App’x at 439 (internal quotations 

omitted). 

The PSR reflects that a base offense level of 20 was applicable for a violation of 18 

U.S.C. § 922(g)(1) under § 2K2.1(a)(4)(A). The base offense level was increased by four points, 

pursuant to § 2K2.1(b)(6)(B), which applies if a defendant “used or possessed any . . . 

 

3

 As it pertains to Woodley’s second contention on appeal regarding objections made to the PSR, we find no error in 

the district court’s determination regarding the PSR’s summarization of the evidence presented at trial, and certainly 

no error that ultimately affected Woodley’s sentence. 
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ammunition in connection with another felony offense,” here, attempted voluntary manslaughter, 

elevating Woodley’s offense level to 24. Next, the probation office utilized the cross-reference 

provision of the Guidelines, § 2K2.1(c)(1)(A), substituting Woodley’s base offense level for the 

base offense level associated with attempted voluntary manslaughter, 29. See U.S.S.G. § 2A1.3. 

The PSR indicates that because Woodley used ammunition in connection with the attempted 

commission of voluntary manslaughter, the greater offense level is applicable. 

Unlike the more commonly asserted challenge to the sufficiency of the evidence 

establishing the elements of the cross-referenced offense, or a challenge to the propriety of 

applying a cross-reference guideline generally, Woodley’s argument on appeal simply asserts 

that the application of the cross-referenced guideline associated with aggravated assault would be 

“more appropriate.” Woodley asserts that because the offense of aggravated assault carries with 

it a base offense level of 14, the appropriate calculation, adjusted for the applicable 

enhancements for discharging a firearm under § 2A2.2(b)(2)(A), and the resulting serious bodily 

injury under § 2A2.2(b)(3)(B), would be a base offense level of 24—the equivalent of the base 

level calculated prior to the § 2K2.1(c)(1)(A) enhancement. 

In response to Woodley’s objections to the PSR, the district court found sufficient 

evidence to establish the elements of attempted voluntary manslaughter, as defined in 18 U.S.C. 

§ 1112 (an unlawful killing of a human being without malice, upon a sudden quarrel or heat of 

passion). 

The jurors in this case heard testimony from victim Anthony Hall 

that he and the defendant argued in a motel room. According to 

Hall, the two men then went into the parking lot where the 

defendant shot Hall once from fairly close range and attempted to 

continue firing. The jurors also heard the testimony of Marco 

Cianfarani who stated that he observed the defendant combing the 

pavement for items the size of spent shell casings. Latoysha Burton 

testified that Hall told her that the defendant shot him. 
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The court heard the above-cited testimony at each trial and found 

that testimony to be credible. The court accordingly finds by a 

preponderance of the evidence that the defendant used the 

ammunition cited in the offense of conviction in connection with 

the attempted commission of voluntary manslaughter. The 

defendant shot Hall from fairly close range immediately following 

a sudden quarrel and tried to continue firing. As such, the 

probation officer properly cross referenced the voluntary 

manslaughter guideline in this case, and the defendant’s third 

objection will be overruled. 

Contrary to Woodley’s assertions on appeal, it is not the role of this court to engage in a 

balancing test to determine a defendant’s optimal sentencing outcome. As we have emphasized 

in cases past, “[o]ur task on appeal is limited to considering whether the district court’s 

application of the cross reference was correct under existing law.” United States v. James, 

575 F. App’x 588, 593 (6th Cir. 2014). Reviewing the district court’s finding for clear error, and 

according the sentencing court the appropriate deference, we conclude that our circuit precedent 

allows uncharged conduct to form the basis for the base offense level and, here, the elements of 

attempted voluntary manslaughter were established by a preponderance of the evidence. 

III. 

 For the foregoing reasons, the district court’s judgment and sentence are affirmed.