United States v. Tory John Starr

Case: 16-15227 Date Filed: 11/30/2017 Page: 1 of 15

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-15227
________________________

D.C. Docket No. 1:16-cr-20031-UU-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TORY JOHN STARR,

Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(November 30, 2017)

Before WILSON and ROSENBAUM, Circuit Judges, and ROBRENO, ∗ District
Judge.

PER CURIAM:

∗
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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Tory Starr appeals his 120-month sentence imposed after pleading guilty to

possession of ammunition by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). The district court sentenced Starr to the maximum sentence allowed

under the statute based on an implicit determination that the ammunition was used

in connection with attempted first-degree murder. On appeal, Starr argues that the

district court did not make the required findings to apply the cross-reference

provision in subsection (c)(1) of United States Sentencing Guidelines § 2K2.1,

which would apply if Starr’s ammunition was used “in connection with” the

“attempted commission of another offense.” Starr also argues that the district court

did not make the findings required to apply the guideline section for attempted

first-degree murder using that cross-reference provision. After careful review of

the parties’ briefs and the record, and with the benefit of oral argument, we vacate

Starr’s sentence and remand for resentencing. We also remand for the district

court to correct a clerical error in the judgment.

I.

Starr pled guilty to one count of knowing possession of ammunition by a

convicted felon in violation of § 922(g)(1). In the process, he stipulated to the

following facts: A police officer approached Starr, who was standing outside a

convenience store in Miami Gardens, Florida. The officer spoke with Starr, but

Starr went into the store. Starr then fled to his car and drove off. He eventually

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stopped and was taken into custody. While arresting Starr, officers saw two rounds

of .22 caliber ammunition on the floor of the car. The officers then obtained a

search warrant and found another 71 rounds of .22 caliber ammunition in Starr’s

trunk. After the officers gave Starr his Miranda 1 warnings, Starr told them that he

owned the car, that he bought the ammunition from Wal-Mart, and that “the

incident in [the convenience store] was a build-up from previous harassment by

Hispanic officers.” The factual stipulation included no details about what the

“incident” was.

The presentence investigation report (PSR) added further details, most of

which Starr disputed. The PSR said: Officer Brian Blanco approached Starr, who

was loitering in front of the convenience store. Starr did not follow Officer

Blanco’s instructions, but instead went into the store. The store’s video camera

showed Starr run to the back of the store and remove a revolver from his

waistband. Starr then fired at Officer Blanco as he entered the store. Officer

Blanco took cover and fired two shots back. Starr then fled from the store and

drove away, but was eventually arrested. While in the police car being taken into

custody, Starr “spontaneously” said that he was trying to kill Officer Blanco, a

Hispanic officer, because he was “tired of being harassed” by Hispanic officers.

1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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Based on these facts, the PSR concluded that Starr used the ammunition in

connection with attempted first-degree murder. Following U.S.S.G.

§§ 2K2.1(c)(1) and 2X1.1, the PSR calculated Starr’s base offense level as 33

under the attempted first-degree murder guideline, § 2A2.1. The resulting

guideline range of 324 to 405 months was well beyond the statutory maximum of

120 months under 18 U.S.C. § 924(a)(2). Thus, the PSR placed the guideline

sentence at 120 months of imprisonment.

Starr repeatedly objected to the PSR’s facts and to its reliance on the

attempted first-degree murder guideline in determining Starr’s sentence. In his

memorandum specifying his PSR objections, Starr stated that he “objects to and

denies the accuracy and completeness of the factual allegations set forth in

paragraphs 3–12[2] of the [PSR],” that the “attempted murder [guideline] is

incorrectly applied,” and that even if the district court rejected his argument that

there is no applicable cross-reference offense, “the most analogous offense to what

occurred in this case would be aggravated assault.” Then, at his sentencing

hearing, Starr stated that “there is no nexus between the ammunition that they

found” and the incident at the convenience store, that “they found ammunition in

his car sometime later,” and that Starr is “contesting the facts.” Further, Starr

2
Paragraphs 3–12 of the presentence investigation report (PSR) described the alleged offense
conduct, which included Starr’s alleged post-arrest spontaneous confession that he was trying to
kill Officer Blanco.
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asked the court to listen to testimony on this issue and to make factual findings

based on the preponderance of the evidence.

The government called Officer Blanco to testify at the sentencing hearing.

At first, he testified that Starr shot at him and patrons of the store. But in response

to questions from the district court, Officer Blanco said that he actually did not

recall if Starr fired at him. Officer Blanco said that he recalled only that Starr

“produced the black handgun and pointed it at [him].” The government also

showed video surveillance of the incident. Officer Blanco pointed out the gun in

Starr’s hand in the video.

On cross-examination, Officer Blanco again said he could not remember

Starr shooting at him, explaining that he had “tunnel vision.” Officer Blanco also

admitted that the only cartridges found at the crime scene came from his own gun.

Officer Blanco said that he approached Starr because the store had been known to

harbor drug dealers. But he acknowledged that when he approached Starr, Starr

was simply loitering outside the store. Finally, Officer Blanco said he could not

recall anything about the firearm other than it was black.

Based on this testimony, the district court found:

[T]he defendant’s own statements after he was apprehended
make it clear that this is all relevant conduct. It’s all highly related,
and I believe that the evidence shows probably beyond a reasonable
doubt that, but certainly by a preponderance, that the defendant was
the person who went into the convenience store with the gun; that he
pointed the gun at the officer; that there were shots fired; that he fled;
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that he was apprehended. And since this was the only gun in the
defendant’s possession, as far as I know—maybe I’m wrong about
that—that the circumstantial evidence is that this is the gun that he
used inside the convenience store.

Starr then corrected the court, pointing out that there was no gun found in his case.

The court replied, “I’m sorry. You’re right. . . . But there’s ammunition. . . . I

think there’s enough.” The district court then sentenced Starr to 120 months of

imprisonment and three years of supervised release, without explicitly stating that

it was adopting the PSR’s determination that the guidelines section for attempted

first-degree murder, U.S.S.G. § 2A2.1, applied in Starr’s case.

II.

“We review the district court’s application and interpretation of the

Sentencing Guidelines de novo and its factual findings for clear error.” United

States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007). A factual finding is clearly

erroneous when the record leaves us with “the definite and firm conviction that a

mistake has been committed.” United States v. Barrington, 648 F.3d 1178, 1195

(11th Cir. 2011) (internal quotation marks omitted). “When a defendant challenges

one of the factual bases of his sentence as set forth in the PSR, the Government has

the burden of establishing the disputed fact by a preponderance of the evidence.”

United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). “[T]he

preponderance standard is not toothless. It is the district court’s duty to ensure that

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the Government carries this burden by presenting reliable and specific evidence.”

Id.

“[T]o facilitate judicial review of sentencing decisions and avoid

unnecessary remands, sentencing judges should make explicit findings of fact and

conclusions of law.” United States v. Mock, 523 F.3d 1299, 1304 (11th Cir. 2008)

(alteration in original). The sentencing court’s factual findings may be based on

evidence heard during trial, facts admitted by the guilty plea, undisputed

statements in the PSR, or evidence presented during the sentencing hearing.

United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). However, “a

sentencing court’s failure to make individualized findings regarding the scope of

the defendant’s activity is not grounds for vacating a sentence if the record

support[s] the court’s determination with respect to the offense conduct.” United

States v. Daniels, 685 F.3d 1237, 1253 (11th Cir. 2012) (per curiam) (alteration in

original) (internal quotation marks omitted).

The cross reference in U.S.S.G. § 2K2.1 used to calculate Starr’s guideline

range, subsection (c)(1), applies “if the . . . ammunition [cited in the offense of

conviction] facilitated, or had the potential of facilitating . . . another offense.”

U.S.S.G. § 2K2.1 cmt. n.14(A).

To sentence a defendant pursuant to the attempted first-degree murder

guideline, U.S.S.G. § 2A2.1, the district court must find by a preponderance of the

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evidence that the defendant had the specific intent to kill the victim and took a

substantial step toward doing so. Braxton v. United States, 500 U.S. 344, 350–51

& n*, 111 S. Ct. 1854, 1858–59 & n* (1991) (“[E]ven if one could properly

conclude that the stipulation ‘specifically established’ that [the defendant] had shot

‘at the marshals,’ it would also have to have established that he did so with the

intent of killing them.”).

We will address the “in connection with” issue and then turn to the

attempted first-degree murder guideline.

A.

The district court sentenced Starr under the “Cross Reference” provision of

guideline § 2K2.1, which states,

If 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 . . . apply—

(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that
other offense, if the resulting offense level is greater than that
determined above . . . .

....

U.S.S.G. § 2K2.1(c)(1) (emphasis added). Section 2X1.1(a), which applies to

attempt, solicitation, or conspiracy, states to use the base offense level for the

underlying substantive offense. The district court adopted the PSR’s

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recommendation, which determined the substantive offense was attempted first-

degree murder and applied § 2A2.1. 3

U.S.S.G. § 2K2.1(c)(1) requires that the firearm or ammunition be “cited in

the offense of conviction.” Id. Application Note 14(E) further states that in order

to apply subsection (c)(1), the weapon cited in the conviction must also be used in

the other offense. Id. § 2K2.1 cmt. n.14(E). The Note gives two examples: (1) If a

defendant is convicted for unlawful possession of a shotgun and the court

determines that the shotgun was used in a previous crime, then the court can apply

subsection (c)(1); and (2) if a defendant is convicted for unlawful possession of a

shotgun and the court determines that the defendant possessed and used a handgun

in a previous crime, then the court cannot apply subsection (c)(1) “because the

handgun was not cited in the offense of conviction.” Id. Therefore, in order for

this subsection to apply, it must be the ammunition cited in Starr’s conviction for

possession of ammunition by a convicted felon that facilitated, or had the potential

of facilitating, the attempted commission of another offense. See U.S.S.G. § 2K2.1

cmt. n.14(A).

Starr argues that the district court did not make the requisite findings to

apply the cross-reference in the firearms or ammunition guideline, U.S.S.G.

§ 2K2.1(c)(1). Specifically, Starr argues that the district court failed to find by a

3
Starr’s offense level using the attempted first-degree murder guideline was greater than his
offense level using the firearms or ammunition guideline.
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preponderance of the evidence that the ammunition was used “in connection with”

the “attempted commission of another offense.” See Lawrence, 47 F.3d at 1566;

U.S.S.G. § 2K2.1(c)(1)(A) & cmt. n.14(A).

The government argues that Starr admitted to the factual allegations in the

PSR because he did not properly object to them. But, at sentencing Starr clearly

objected to the finding that the incident inside the convenience store was “relevant

conduct” (relevant, presumably, to the offense with which he was charged). And

as we have stated, Starr expressly complained that “there is no nexus between the

ammunition that they found” and the incident at the convenience store, that “they

found ammunition in his car sometime later,” and that Starr is “contesting the

facts.” These statements triggered a full evidentiary hearing in which the

government presented Officer Blanco’s testimony and a video of the incident.

Throughout cross-examination and argument at this hearing, Starr disputed many

facts Blanco alleged. Therefore, Starr properly alerted the district court to

“whether a challenge [was] being mounted as well as what [he] wishe[d] to

contest.” United States v. Aleman, 832 F.2d 142, 145 (11th Cir. 1987).

Significantly, the government did not object that any of the facts challenged

in the hearing were undisputed in the PSR. Instead, it offered evidence to try to

prove the challenged allegations. After the district court understood Starr to have

objected to the PSR’s factual allegations concerning the nexus between the

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ammunition and the alleged attempted murder, and after the court went on to hold

a full-blown evidentiary hearing on that issue, it is too late on appeal for the

government to assert that Starr waived these objections before that hearing even

happened.

Indeed, the district court’s decision to conduct a hearing on the issue itself

reflects that the district court did not consider Starr’s objections waived. Rule 32

of the Federal Rules of Criminal Procedure provides that a sentencing court “may

accept any undisputed portion of the presentence report as a finding of fact,” Fed.

R. Crim. P. 32(i)(3)(A) (emphasis added), not that it must. Yet to the extent a fact

is disputed, the sentencing court “must . . . rule on the dispute or determine that a

ruling is unnecessary either because the matter will not affect sentencing, or

because the court will not consider the matter in sentencing . . . .” Fed. R. Crim. P.

(i)(3)(B) (emphasis added). Here, the district court chose to hold a hearing on the

challenged facts alleged in the PSR. These circumstances demonstrate that the

district court did not view the objections as waived.

We therefore must consider what the district court did with the objected-to

allegations following the evidentiary hearing. As it turns out, that is where the

problem here arises.

After all the parties put on all their evidence, the district court did not make

findings on at least some of the PSR’s allegations that Starr challenged during the

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course of the hearing. Instead, the district court found only that “the defendant was

the person who went into the convenience store with the gun; that he pointed the

gun at the officer; that there were shots fired; that he fled; that he was

apprehended.” And with respect to these findings that the district court did make,

the evidence presented at the hearing supported all of these findings but one: that

the ammunition was used in connection with the offense because “there were shots

fired.” While shots were indeed fired, the government did not prove that Starr was

the person who fired them. Officer Blanco testified repeatedly that he did not

remember Starr firing the gun at all, and admitted that the only casings found at the

scene were from his own gun. There was no evidence to support the contested

claim in the PSR that Starr fired at Officer Blanco, and the district court did not

make that finding.

The district court also did not find that the ammunition in Starr’s car

facilitated or had the potential of facilitating attempted first-degree murder. See

U.S.S.G. § 2K2.1 cmt. n.14(A). The only evidence connecting the ammunition to

the incident in the store is that ammunition was found in the car Starr used to flee.

The court made no finding that the ammunition was related to the gun Starr used,

nor was there any evidence that Starr’s gun and the ammunition in the car were of

the same caliber. Officer Blanco testified only that the gun was black and that

Starr pointed it at him.

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The government points to Smith, 480 F.3d 1277, to argue for an expansive

view of the phrase “in connection with.” True, this phrase is given expansive

meaning in this circuit. However, in Smith, the defendant had ammunition in his

pocket while attempting to conceal a gun and drugs before struggling with and

eventually fleeing from the officer. Id. at 1279. And Smith was sentenced under

U.S.S.G. § 2K2.1(b)(5) (2005), 4 id. at 1279–80, not subsection (c)(1), which is at

issue here. Application Note 14(E) to § 2K2.1 specifically requires more from

subsection (c)(1): the ammunition must be both used in the other offense and cited

in the offense of conviction. U.S.S.G. § 2K2.1 cmt. n.14(E).5 The government’s

evidence did not support a finding that Starr used the ammunition in the incident

with Officer Blanco, and the rest of the record does not support that determination.

Cf. Daniels, 685 F.3d at 1253. Therefore, we vacate and remand for the district

court to make explicit factual findings that support a determination that the cross-

reference, U.S.S.G. § 2K2.1(c)(1), applies, if it makes that determination at Starr’s

resentencing.

B.

Starr next argues that the district court should not have applied the attempted

first-degree murder guideline, § 2A2.1, to Starr. Specifically, Starr argues that the

4
That section is now U.S.S.G. § 2K2.1(b)(6).
5
Application Note 14(E) was “effective November 1, 2014, [and] eliminates the incorporation of
offenses that involved a firearm other than the firearm used in the offense of conviction.” United
States v. Harper, 766 F.3d 741, 747 (7th Cir. 2014).
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court failed to find by a preponderance of the evidence that he had the requisite

intent to attempt to murder Officer Blanco in the first degree or that he took a

substantial step in the commission of that offense. See Lawrence, 47 F.3d at 1566;

U.S.S.G. § 2A2.1.

The government concedes that “[o]rdinarily, sentencing courts should make

specific factual findings to facilitate judicial review, and the failure to do so can

merit reversal if it frustrates meaningful review.” The government points to our

decision in Mock, 523 F.3d 1299, in which the district court did not make explicit

findings before applying § 2A2.1 for first-degree murder. Id. at 1304. In Mock,

we vacated Mock’s sentence and remanded to the district court to reexamine the

applicability of § 2A2.1 and, if necessary, make explicit findings. Id.

The same result follows here. In Starr’s case the district court similarly

adopted the PSR’s application of the guideline for first-degree murder without

making any explicit findings that Starr intended to commit that crime or that he

took a substantial step toward committing that crime. Nor did the court adopt

relevant facts from the PSR, something the court was permitted, but not required,

to do. See Fed. R. Crim. P. 32(i)(3)(A). The record is thus also not sufficient to

support these determinations on the first-degree murder cross-reference. Cf.

Daniels, 685 F.3d at 1253. This is not a case where “[t]he thought process of the

district court is evident.” Cf. Feazell v. Tropicana Prods., Inc., 819 F.2d 1036,

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1043 (11th Cir. 1987). Thus, we are precluded from meaningful appellate review.

See Mock, 523 F.3d at 1304.

As a result, we vacate Starr’s sentence and remand his case to the district

court to reexamine the applicability of § 2A2.1 to Starr and to make explicit factual

findings about whether this guidelines section or another is appropriate in

determining Starr’s sentence, see Mock, 523 F.3d at 1304, if the cross-reference,

U.S.S.G. § 2K2.1(c)(1), should be applied at all.

Finally, the district court should also correct a clerical error in the judgment

on remand. Starr’s judgment states that he was convicted of “possession of a

firearm and ammunition by a convicted felon,” 6 rather than “possession of

ammunition by a convicted felon.” Starr’s indictment is clear that he was never

charged with possession of a firearm by a convicted felon, and therefore the district

court should correct the judgment in this regard. See United States v. Massey, 443

F.3d 814, 822 (11th Cir. 2006) (“We may sua sponte raise the issue of clerical

errors in the judgment and remand with instructions that the district court correct

the errors. . . . It is fundamental error for a court to enter a judgment of conviction

against a defendant who has not been charged, tried, or found guilty of the crime

recited in the judgment.”) (internal quotation marks omitted).

VACATED AND REMANDED.

6
(emphasis added).
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