IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50405
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY SPARKS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CR-70-3
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December 14, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Tony Sparks appeals his sentence from his guilty-plea
conviction for aiding and abetting carjacking which resulted in
the shooting death of Todd Bagley. See 18 U.S.C. §§ 2, 2119(3).
Sparks challenges the district court’s application of
U.S.S.G. § 2B3.1(c)(1), which cross-references to the base
offense level for murder, U.S.S.G. § 2A1.1(a). Sparks asserts
that he was sentenced for a murder that he did not commit. He
contends that he was at home when the remaining group of
carjackers bought lighter fluid, shot the two victims in the car
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-50405
-2-
trunk, and then burned the carjacked vehicle. He contends that
the murders were not reasonably foreseeable to him and, even if
they were, the district court failed to make the requisite
findings under U.S.S.G. § 1B1.3, relevant conduct.
Contrary to Sparks’ contention, he was not sentenced for
murder; he was sentenced from his guilty-plea conviction for
aiding and abetting carjacking which resulted in the death of
Bagley. See 18 U.S.C. §§ 2, 2119(3); United States v. Harris,
104 F.3d 1465, 1475 (5th Cir. 1997). Sparks’ responsibility for
the death of Todd Bagley arises as an element of the offense to
which he pleaded guilty. See Jones v. United States, 526 U.S.
227, 252 (1999). The sentencing court was not required to make
findings of fact about the reasonable foreseeability of Bagley’s
murder. The relevant conduct for which Sparks is held
accountable is pursuant to U.S.S.G. § 1B1.3(a)(1)(A), not
subsection (a)(1)(B), based on Sparks’ own conduct. See United
States v. Carreon, 11 F.3d 1225, 1237 n.60 (5th Cir. 1994). The
district court properly applied the cross reference to the murder
guideline.
Sparks’ remaining argument, concerning the district court’s
determination not to adjust Sparks’ offense level for acceptance
of responsibility, is equally unavailing. The district court did
not clearly err. See United States v. Tremelling, 43 F.3d 148,
152 (5th Cir. 1995).
AFFIRMED.