United States of America v. James Anthony Ashford, a/k/a Pop-A-Lot

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4477
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES ANTHONY ASHFORD, a/k/a Pop−A−Lot,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, Chief
District Judge. (3:11-cr-02264-MBS-1)
Argued: March 22, 2013 Decided: June 20, 2013
Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Duncan and Senior Judge Hamilton joined.
ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank
Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: Allen B. Burnside,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. William N.
Nettles, United States Attorney, Stacey D. Haynes, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.

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DIAZ, Circuit Judge:
Pursuant to a guilty plea, a federal district court
convicted James Ashford of illegal possession of a firearm under
18 U.S.C. §§ 922(g)(1), 924(a)(2). Because Ashford had used the
firearm on the day of his arrest to shoot another person, the
district court applied a “cross reference” under § 2K2.1(c) of
the United States Sentencing Guidelines (“USSG”) and substituted
the offense level for attempted second-degree murder.
Ashford appeals, posing two claims of error--one legal, one
factual--regarding the application of that cross reference.
First, Ashford contends that attempted second-degree murder was
not a proper cross reference because as a non-groupable offense
under USSG § 3D1.2, it is categorically excluded from the
“Relevant Conduct” Guideline of USSG § 1B1.3(a)(2). Second,
Ashford argues that the facts elicited at sentencing did not
establish the requisite “malice” to substantiate the attempted
commission of second-degree murder.
For the reasons set forth below, we affirm.
I.
A.
The relevant events concern an altercation at an apartment
complex in Columbia, South Carolina, between two couples: James
Ashford and his girlfriend Elicia Jackson, and Marcus Chaplin

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and his girlfriend Takeya Lake. The dispute began on the
morning of April 20, 2011, after Jackson learned that Chaplin
had told her family members she had been arrested for
shoplifting. Jackson confronted Chaplin about the comments, and
the two argued until Ashford intervened. Ashford and Chaplin
then discussed the matter and conciliated, as did their
respective girlfriends later that day, who decided to “let it
go.” J.A. 274. As far as Chaplin and Lake were concerned,
therefore, the matter was “squashed.” J.A. 57.
For reasons not evident from the record, however, the
dispute escalated. Ashford subsequently ventured across town to
retrieve his .38 caliber revolver, which as a convicted felon he
possessed illegally. When Ashford returned, he sported the
revolver about the apartment complex and “told a couple of
people that the gun was for [Chaplin].” J.A. 58. Lake relayed
Ashford’s threats to Chaplin, who then returned to the apartment
complex. By the time Chaplin returned, Ashford had left to
visit the local store. Chaplin, joined by his cousin Tevin
Richardson, decided to pursue Ashford--purportedly to resolve
the dispute away from the presence of children who were playing
at the apartment complex.
Chaplin and Richardson caught up with Ashford in a narrow
alleyway between the store and the apartment complex. After a
short confrontation, Ashford drew his firearm, at which point

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Chaplin and Richardson retreated to a vehicle at the apartment
complex. Ashford pursued Chaplin, who pushed a young girl away
from his car and told her to go inside. Chaplin then opened the
passenger side door and “reached in” to grab a firearm in the
glove compartment. J.A. 215. However, Chaplin did not retrieve
the weapon, and informed Ashford he was unarmed.
Ashford then stated “I should kill you,” J.A. 74, and fired
three shots. The first shot struck Chaplin in the groin, the
second struck Chaplin’s buttocks as he turned to flee, and the
third missed. The wounded Chaplin stumbled before sitting down
on the sidewalk. Ashford recalled that he was “not angry,” but
“scared” when he shot Chaplin. J.A. 219. After the initial gun
fire, Lake retrieved Chaplin’s firearm from the vehicle, which,
in turn, prompted Ashford to fire two errant shots at Lake.
Ashford then asked a neighbor to drive him away from the scene.
However, the police stopped the car, arrested Ashford, and
seized the firearm.
B.
Ashford pleaded guilty to illegally possessing a firearm as
a convicted felon in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). The presentence investigation report (“PSR”)
calculated a Guidelines range of the statutory maximum--120
months--based on a cross reference to attempted first-degree
murder under USSG § 2K2.1(c). Ashford objected to the cross

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reference. Following a hearing, the court adopted the facts in
the PSR and concluded that the appropriate cross-referenced
offense was attempted second-degree murder--resulting in a
Guidelines range of 110–120 months’ imprisonment. The court
sentenced Ashford to 120 months. Ashford now appeals.
II.
A.
We first consider the appropriate standard of review.
Ordinarily, when “determining whether a district court properly
applied the advisory Guidelines,” including its application of a
cross reference, “we review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009)
(emphasis omitted). Just days before oral argument, however,
the government filed a letter pursuant to Federal Rule of
Appellate Procedure 28(j), which permits the submission of
supplemental authorities, asserting that Ashford waived the
issue of whether USSG § 1B1.3(a)(2) prohibits a cross reference
to a non-groupable offense.
We decline this eleventh-hour request to review Ashford’s
claim for plain error, as the government itself failed to raise
any such argument in its opening brief. Regardless of whether a
party may truly “waive[] waiver,” United States v. Cone, 714

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F.3d 197, 224 (4th Cir. 2013) (Wynn, J., concurring in part and
dissenting in part), we exercise our discretion in this case to
excuse any supposed waiver by Ashford. See United States v.
Holness, 706 F.3d 579, 592 (4th Cir. 2013) (“Thus, we possess
the discretion under appropriate circumstances to disregard the
parties’ inattention to a particular argument or issue.”).
We do not countenance a litigant’s use of Rule 28(j) as a
means to advance new arguments couched as supplemental
authorities. “Indeed, considering an argument advanced for the
first time in a Rule 28(j) filing is not only unfair to the
appell[ant], it also creates the risk of an improvident or ill-
advised opinion being issued on an unbriefed issue.” United
States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006). Here
the late timing of the government’s Rule 28(j) letter prevented
Ashford from contesting the government’s waiver argument, and
under these circumstances waiver must be a two-way street. In
fact, we have identified “procedural ambush” as a scenario that
warrants an exception to the rules of waiver. United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Accordingly, in the
interests of fairness and the integrity of the Federal Rules of
Appellate Procedure, we reject the government’s plain error
argument and review Ashford’s first claim of error de novo.

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B.
In the event of a conviction for illegal possession of a
firearm, USSG § 2K2.1(c) authorizes a district court to
substitute the offense level for any criminal offense that the
defendant committed or attempted to commit in connection with
the possession of the firearm. This “cross reference” may only
apply if the underlying offense qualifies as “relevant conduct”
as defined by USSG § 1B1.3(a). See United States v. Pauley, 289
F.3d 254, 258 (4th Cir. 2002). USSG § 1B1.3(a) provides that
cross references “shall be determined on the basis of the
following:”
(1) (A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured,
or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity,
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;
(2) solely with respect to offenses of a character for
which § 3D1.2(d) would require grouping of multiple
counts, all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part of
the same course of conduct or common scheme or plan as
the offense of conviction;

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(3) all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above, and
all harm that was the object of such acts and
omissions; and
(4) any other information specified in the applicable
guideline.
USSG § 1B1.3(a) (emphasis added).
Ashford maintains that all four subsections must apply to
sustain a cross reference. Because USSG § 3D1.2 expressly
excludes crimes against the person from grouping, including
attempted murder, Ashford contends that USSG § 1B1.3(a)(2) is
not satisfied, and the district court should not have applied a
cross reference. The government, however, reads the four
subsections disjunctively. In other words, a cross reference
may apply either to a non-groupable offense committed “during
the commission of the offense of conviction” under USSG
§ 1B1.3(a)(1), or to a groupable offense committed within “the
same course of conduct or common scheme or plan as the offense
of conviction” under USSG § 1B1.3(a)(2). Because the attempted
murder occurred on the same day using the very firearm that
Ashford had illegally possessed, the government contends that
this non-groupable offense satisfies--and need only satisfy--
subsection (a)(1) of the Relevant Conduct Guideline.
“We interpret the Sentencing Guidelines according to the
ordinary rules of statutory construction.” United States v.
Strieper, 666 F.3d 288, 293-94 (4th Cir. 2012). “As in all

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cases of statutory interpretation, our inquiry begins with the
text of the statute.” Chesapeake Ranch Water Co. v. Bd. of
Comm’rs of Calvert Cnty., 401 F.3d 274, 279 (4th Cir. 2005).
“We determine the plainness or ambiguity of the statutory
language . . . by reference to the language itself, the specific
context in which that language is used, and the broader context
of the statute as a whole.” United States ex rel. Carter v.
Halliburton Co., 710 F.3d 171, 189 (4th Cir. 2013) (internal
quotations omitted). “[W]here the statutory language is
ambiguous we turn to other evidence to interpret the meaning of
the provision,” Johnson v. Zimmer, 686 F.3d 224, 236 (4th Cir.
2012), including the Sentencing Guidelines commentary. See
United States v. Divens, 650 F.3d 343, 346 (4th Cir. 2011)
(citing Stinson v. United States, 508 U.S. 36, 38 (1993)).
Applying these principles, we observe that the text of USSG
§ 1B1.3(a) indeed connects subsections (3) and (4) with the word
“and,” suggesting that a district court must apply all
provisions in order to impose a cross reference. Despite the
conjunction, however, subsections (a)(3) and (a)(4) do not
logically constitute additional conditions of some four-part
test for cross-referenced offenses. Rather, those provisions
merely supplement the district court’s consideration of the two
antecedent subsections.

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In our view, there is no reason why the Guidelines would
exclude all non-groupable offenses from serving as cross
references when such acts are committed “during the commission”
of the offense of conviction under subsection (a)(1). As we
explained in United States v. Horton, 693 F.3d 463, 476 (4th
Cir. 2012), “Subsection (a)(1) of the Relevant Conduct Guideline
requires a closer connection between the acts and omissions
committed and the offense of conviction than does Subsection
(a)(2).” As the Relevant Conduct Guideline concerns criminal
acts that have a factual contiguity to the offense of
conviction, there is no reason to require acts that satisfy this
requirement to also satisfy the less proximate criteria for
relevant conduct under subsection (a)(2). See United States v.
Johnson, 347 F.3d 635, 640 (7th Cir. 2003) (“[T]he trailing
clause of § (a)(1) is not applicable in the case of a groupable
offense . . . . Subsection (a)(2) allows a court to consider a
broader range of conduct than does the trailing clause of
(a)(1).”).
Moreover, the guideline that authorizes a cross reference
in this case directs courts to apply a homicide guideline “if
death resulted” from the cross-referenced offense. See USSG
§ 2K2.1(c)(1)(B). This provision would make no sense if, as
Ashford argues, homicide crimes are ineligible for cross
references as non-groupable offenses under USSG § 1B1.3(a)(2).

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Just as the purpose of the Relevant Conduct Guideline and
the language of USSG § 2K2.1(c)(1)(B) militate against a
conjunctive reading, there are also multiple provisions in the
commentary to USSG § 1B1.3 that confirm that the Relevant
Conduct Guideline should be read disjunctively. First, the
commentary states that “[i]n certain cases, a defendant may be
accountable for particular conduct under more than one
subsection of this guideline.” USSG § 1B1.3 cmt. n. 2(a)(1).
Second, the commentary distinguishes “Subsections (a)(1) and
(a)(2)” as “different rules.” Id. cmt. background. Finally,
the commentary discusses certain “offense conduct” that is
“relevant conduct under subsection (a)(1), not (a)(2).” Id.
cmt. n. 8.
Taken together, these provisions demonstrate that USSG
§ 1B1.3(a)(1) and (a)(2) prescribe separate and sufficient
conditions for relevant conduct. Indeed, the principal
precedent cited by Ashford actually supports this reading. In
Horton, a defendant convicted of illegal firearm possession was
sentenced based on a cross reference to first-degree murder.
693 F.3d at 465. Because that offense, USSG § 2A1.1, was
expressly excluded from grouping, we held that the cross
reference under USSG § 1B1.3(a)(2) could not apply and vacated
the sentence. Id. at 478-80. The corollary of this principle,
however, is what we have hereto concluded--a non-groupable

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offense must instead satisfy the criteria of subsection (a)(1).
In a footnote that Ashford characterizes as “dicta,” Reply Br.
at 12, Horton suggested as much by indicating that subsection
(a)(1) is an alternative basis for relevant conduct. See
Horton, 693 F.3d at 476 n.13.
To the extent we need to affirmatively state that
principle, we do so now.∗ Because a disjunctive interpretation
of the Relevant Conduct Guideline “ensure[s] that the statutory
scheme is coherent and consistent,” Healthkeepers, Inc. v.
Richmond Ambulance Auth., 642 F.3d 466, 472 (4th Cir. 2011), we
agree with our sister circuits that a cross-referenced offense
may satisfy either subsection (a)(1) or (a)(2) of the Relevant
Conduct Guideline. See United States v. McCants, 434 F.3d 557,
563 (D.C. Cir. 2006); United States v. Williams, 431 F.3d 767,
772-73 (11th Cir. 2005); Jansen v. United States, 369 F.3d 237,
248; Johnson, 347 F.3d at 637-40; United States v. Cuthbertson,
138 F.3d 1325, 1327 (10th Cir. 1998).
Accordingly, where the substituted offense would require
grouping, subsection (a)(2) applies and “allows a court to
consider a broader range of conduct than . . . (a)(1).”
∗ Ashford also claims the district court erred by not
specifying which provision of the Relevant Conduct Guideline
justified the cross reference. Ashford though abandoned this
claim by waiting until his reply brief to raise it. Yousefi v.
INS, 260 F.3d 318, 326 (4th Cir. 2001) (per curiam).

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Johnson, 347 F.3d at 640. But where, as here, a substituted
offense cannot be grouped, the act must satisfy subsection
(a)(1) and have “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.” USSG § 1B1.3(a)(1). Because Ashford’s substituted
offense of attempted second-degree murder clearly occurred
“during the commission” of the offense of conviction, the
district court properly imposed a cross reference pursuant to
USSG § 1B1.3(a)(1).
C.
We next address Ashford’s secondary argument that even if a
cross reference applies, the district court erred in determining
the substituted offense. According to Ashford, the facts in the
PSR failed to establish the elements of attempted second-degree
murder, and at most substantiate a finding of attempted
voluntary manslaughter. We review the factual findings of the
district court for clear error and all legal conclusions de
novo. United States v. Medina-Campo, 714 F.3d 232, 234 (4th
Cir. 2013).
“Murder is the unlawful killing of a human being with
malice aforethought,” 18 U.S.C. § 1111, while “[voluntary]
manslaughter is the unlawful killing of a human being without
malice. . . . [u]pon a sudden quarrel or heat of passion.” 18

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U.S.C. § 1112(a). First-degree murder requires proof of
premeditation, while second-degree murder simply requires proof
of “malice aforethought, [which] may be established by evidence
of conduct which is reckless and wanton and a gross deviation
from a reasonable standard of care, of such a nature that a jury
is warranted in inferring that defendant was aware of a serious
risk of death or serious bodily harm.” United States v.
Williams, 342 F.3d 350, 356 (4th Cir. 2003).
We have no trouble affirming the district court’s decision
on the facts of record. It was Ashford who reignited the
dispute by driving across town to retrieve his revolver hours
after the initial altercation that morning, and warning
neighbors that he intended to use the firearm on Chaplin.
Ashford then made good on his threat, telling Chaplin “I should
kill you” before firing three shots, two of which hit Chaplin.
Even if Chaplin shares some blame by virtue of his decision to
confront Ashford in the alleyway, Ashford was “not angry” or in
danger when he drew his firearm and pursued the fleeing Chaplin.
These facts exhibit the wanton behavior that warranted an
inference of malice. There was nothing “sudden” about the
quarrel, and the “heat of passion” mitigator plainly does not
apply to an aggressor who is “not angry,” and has multiple
opportunities to walk away from a dispute that he incited.

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Accordingly, the district court did not clearly err in
imposing a cross reference to attempted second-degree murder.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED

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