FILED
United States Court of Appeals
Tenth Circuit
July 13, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 08-7090
CEDRIC JAMARA CHERRY,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 6:08-CR-00008-JHP-1)
Robert Ridenour, Assistant Federal Public Defender, (Julia L. O’Connell, Federal
Public Defender; Barry L. Derryberry, Research & Writing Specialist, with him
on the briefs), Office of Federal Public Defender, Eastern District of Oklahoma,
Tulsa, Oklahoma, for Defendant - Appellant
Robert Wallace, Assistant United States Attorney, (Sheldon J. Sperling, United
States Attorney, with him on the brief), Muskogee, Oklahoma, for Plaintiff -
Appellee.
Before KELLY, BRISCOE, and HARTZ, Circuit Judges.
HARTZ, Circuit Judge.
Cedric Cherry was indicted in the United States District Court for the
Eastern District of Oklahoma for being a felon in possession of a firearm. See
18 U.S.C. § 922(g)(1). The charge resulted from an investigation into a gun fight
that left one participant dead. Mr. Cherry pleaded guilty and the district court
sentenced him to a 94-month term of incarceration. In calculating Mr. Cherry’s
sentencing range under the United States Sentencing Guidelines, the court applied
USSG §§ 2K2.1(c)(1)(B) and 2A1.3 to set his offense level as if he had
committed voluntary manslaughter. Mr. Cherry appeals, contending that the
offense-level calculation was incorrect because there was no proof that he fired
the fatal bullet. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
The gun fight occurred on April 27, 2007, in Idabel, Oklahoma. The victim
was Chris Moore. Earlier that day, Moore had made threatening gestures
(displaying gang signs and a red bandana) in a confrontation with two of
Mr. Cherry’s cousins. In the evening the same cousins, accompanied by
Mr. Cherry’s brother and some other associates, again encountered Moore in the
Hillcrest area of Idabel. After a few remarks from Moore and his companions,
Mr. Cherry’s cousin phoned him to report that Moore and others were giving them
trouble. Mr. Cherry drove to Hillcrest. When he arrived, he stopped his car in
the middle of the road, jumped out with a gun in his hand, and cocked the gun.
He exchanged words with Moore’s group, threatening to kill them. Gunfire broke
out. Several persons on both sides, including Mr. Cherry and Moore, fired shots.
Law-enforcement officers called to the scene found Moore on the ground and he
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was later pronounced dead. No bullet was recovered from his body. Who fired
the fatal round is thus an open question.
Mr. Cherry, who had a prior felony conviction for methamphetamine
possession, was charged with being a felon in possession of a firearm, and he
pleaded guilty. The probation office prepared a presentence report (PSR) that
calculated Mr. Cherry’s base offense level using USSG § 2K2.1, the guideline for
violations of 18 U.S.C. § 922(g). The guideline contains a cross-reference
providing that the offense level for homicide may be applicable. It states:
If the defendant used or possessed any firearm or ammunition in
connection with the commission or attempted commission of another
offense . . . apply—
...
(B) if death resulted, the most analogous offense guideline from
Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense
level is greater than that determined [under the preceding provisions
of § 2K2.1].
USSG § 2K2.1(c)(1). Although the PSR noted that Mr. Cherry had been charged
in Oklahoma state court with second-degree murder stemming from the April 27
gun fight, it selected a lesser offense, voluntary manslaughter, as the most
analogous. Therefore it applied the voluntary-manslaughter guideline, USSG
§ 2A1.3, which set Mr. Cherry’s base offense level at 29. The PSR then
subtracted three points for Mr. Cherry’s acceptance of responsibility, resulting in
a total offense level of 26. (As required for the cross reference to apply, this total
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exceeded the adjusted offense level of 15 that the PSR had calculated under the
other provisions of § 2K2.1.)
The district court held an evidentiary hearing at which both Mr. Cherry and
the government presented witnesses concerning the events of April 27. At
sentencing, the court ruled that Mr. Cherry’s conduct in connection with his
possession of a firearm was a but-for cause of Moore’s death. The court agreed
with the PSR that it was appropriate to apply the guideline for voluntary
manslaughter. It noted that 18 U.S.C. § 1112 “defines manslaughter as the
unlawful killing of a human being without malice” and found that “Mr. Cherry’s
actions appear[ed] to have been made with spontaneity in the heat of passion.” It
rejected application of the involuntary-manslaughter guideline, saying that
Mr. Cherry’s “action further appears to have been acted out with design and
intention, and would not amount to an involuntary act.” R. Vol. II Doc. 52 at 4.
With a criminal-history category of IV, Mr. Cherry had a guideline range of 92 to
115 months, and the court imposed a 94-month sentence.
II. DISCUSSION
When considering a district court’s application of the guidelines, “we
review legal questions de novo and we review any factual findings for clear error,
giving due deference to the district court’s application of the guidelines to the
facts.” United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006) (internal
quotation marks omitted). We review de novo whether the facts found by the
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court support the application of the guideline it selected. See United States v.
Fortier, 180 F.3d 1217, 1225 (10th Cir. 1999).
In applying the § 2K2.1(c)(1) cross reference to the homicide guidelines in
§ 2A1, the court may look to the federal homicide statutes that correspond to the
various § 2A1 guidelines. See, e.g., id. at 1228 (rejecting application of
voluntary-manslaughter guideline as most analogous after referencing elements of
18 U.S.C. § 1112(a)); see also United States v. Nichols, 169 F.3d 1255, 1273
(10th Cir. 1999). The court, however, is “not bound at sentencing by the terms of
a criminal liability statute” and “a perfect match is not required” between the
defendant’s conduct and the homicide guideline selected as the most analogous.
Fortier, 180 F.3d at 1229 (internal quotation marks omitted).
The federal voluntary-manslaughter statute, 18 U.S.C. § 1112(a), defines
the offense as “the unlawful killing of a human being without malice . . . [u]pon a
sudden quarrel or heat of passion.” Mr. Cherry’s sole argument against
application of the voluntary-manslaughter guideline, USSG § 2A1.3, is that there
was no proof that he fired the fatal shot. We are not persuaded. To begin with,
we doubt that such proof is necessary to establish the offense. Although we are
aware of no federal case in point, it appears that criminal liability for homicide
does not turn on proof that the defendant was the actual instrument of the death.
In People v. Kemp, 310 P.2d 680 (Cal. App. 1957), Kemp and a codefendant had
been racing on a residential street when the codefendant’s vehicle struck a third
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car, killing a passenger. The court affirmed Kemp’s conviction of manslaughter,
explaining:
Kemp and [the codefendant] were inciting and encouraging one
another to drive at a fast and reckless rate of speed on a residence
street and as they closely approached a blind intersection. It was by
the merest chance that Kemp was able to avoid hitting the other car,
and that Coffin was not. Only the matter of a split second and a few
inches made the difference. . . . [T]he acts of both led directly to and
were a proximate cause of the result, and the fact that the appellant
happened to narrowly escape the actual collision is not the
controlling element. The evidence is sufficient to show that they
were not acting independently of each other, and that they were
jointly engaged in a series of acts which led directly to the collision.
The language of [California’s manslaughter statute] is broad enough
to impose criminal liability in this situation . . . .
Id. at 683; see People v. Sanchez, 29 P.3d 209, 216–18 (Cal. 2001) (discussing
Kemp with approval and affirming first-degree murder conviction of defendant
who had engaged in gun battle even though evidence did not show which
participant’s gun had fired shot killing innocent bystander); Commonwealth v.
Gaynor, 648 A.2d 295 (Pa. 1994) (duel participant guilty of first-degree murder
of bystander despite other participant’s firing fatal shot).
Moreover, even if the federal offense of voluntary manslaughter did not
encompass Mr. Cherry’s conduct, we still think it was a proper analogy for
purposes of the sentencing guidelines. (In our view, the district court may have
been lenient in not analogizing Mr. Cherry’s conduct to a more serious form of
homicide.) The district court found that Mr. Cherry precipitated the gun battle
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that led to Moore’s death and that he had the requisite intent for voluntary
manslaughter. It was only fortuitous if his shot was not the one that killed Moore.
III. CONCLUSION
We AFFIRM the judgment of the district court.
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