United States of America v. Clinton Turner

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0736n.06
No. 10-6558
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLINTON TURNER,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
TENNESSEE
Before: BATCHELDER, Chief Judge; MARTIN and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Clinton Turner argues that the district court miscalculated
his recommended sentence when it applied a cross reference to attempted second-degree murder
based on a depraved heart. The United States agrees. The parties are right, so we vacate Turner’s
sentence and remand for resentencing.
The facts, as the district court found them, show that on August 9, 2009, Turner—while
under the influence of alcohol, prescription medication, and crack cocaine—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 at Ruffin and the others, but did not fire. Another man, James
Gates, attempted to wrestle the gun away from Turner. In the ensuing struggle, the gun went off and

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No. 10-6558
United States v. Turner
severely injured Ruffin. The district court found at sentencing that Turner’s actions were extremely
reckless, but that Turner did not intend to kill Ruffin (or anyone else).
Turner pled guilty to being a felon in possession of a firearm. His presentence investigation
report calculated a base offense level of 33 based on a cross reference to attempted first-degree
murder under § 2A2.1(a)(1) of the Guidelines. The district court rejected that cross reference in light
of its finding that Turner did not intend to kill Ruffin. At the government’s urging, however, the
court applied a cross reference to attempted second-degree murder under § 2A2.1(a)(2), on the theory
that Turner acted with a depraved heart.
The government has since changed its mind, conceding that Turner should not have received
the cross reference to § 2A2.1(a)(2). The government is correct. Under federal law, a defendant
cannot be guilty 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, Wharton’s Criminal Law § 743, p. 522 (14th ed.
1981)) (“Although murder may be committed without an intent to kill, an attempt to commit murder
requires a specific intent to kill”). The same is true under Tennessee state law. See State v.
Kimbrough, 924 S.W.2d 888, 891 (Tenn. 1996). Simply stated, the cross reference here was to a
crime that does not exist. See generally 2 Wayne R. Lafave, Substantive Criminal Law § 11.3(a),
at 212–13 (2d ed. 2003) (footnotes omitted).
The erroneous cross reference caused the district court to miscalculate Turner’s Guidelines
range, which in turn makes his sentence procedurally unreasonable. See Gall v. United States, 552
U.S. 38, 51 (2007). Thus, we vacate Turner’s sentence and remand for re-sentencing.
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