United States v. Joshua Walker

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0268n.06

Case No. 19-3966

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 03, 2021
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
JOSHUA WALKER,
) DISTRICT OF OHIO
Defendant-Appellant. )

Before: BATCHELDER, GRIFFIN, and BUSH, Circuit Judges

JOHN K. BUSH, Circuit Judge. Joshua Walker sat at the Westender Bar in Cleveland

quietly sipping a drink one evening when, without warning or provocation, a man descended on

him from behind and began to beat him mercilessly. The attack continued for several seconds

until it spilled out into the street, where Walker pulled out a gun and shot his assailant. Walker, a

convicted felon on supervised release, was not allowed to have a firearm. So he was charged, and

later convicted, as a felon in possession of ammunition, a crime for which the Sentencing

Guidelines recommend a sentence between 41- and 51-months’ imprisonment. After a brief

hearing, the district court enhanced Walker’s sentence to 90 months based on a cross-reference to

voluntary manslaughter. Because that enhancement was based on insufficient factual findings, we

vacate and remand for resentencing.
Case No. 19-3966, United States v. Walker

I.

A. FACTUAL BACKGROUND

The bar’s surveillance cameras captured most of the few-second altercation, which

occurred on October 25, 2017. Video shows Walker seated at the bar counter having a drink.

Aaron Mason sits down on the other side of the bar, his gaze locked on Walker. Mason dons

fingerless gloves and anxiously fidgets in place. He then approaches Walker from behind. Walker

turns, and Mason punches him squarely in the face. Mason then lets fly a torrent of blows as

Walker tries to fend Mason off with his left hand while seeming to reach with his right hand for a

gun concealed in his waistband. After grappling for a short time, the two men tumble into the

street outside, and Mason attempts to pin Walker to the concrete. With Mason on top of him,

Walker draws his gun, wedges it between them, and fires. Mason then collapses to the ground.

Walker rises quickly to his feet, briefly points the gun at his now-supine attacker, and flees the

scene, leaving behind his cell phone and three spent 9mm shell casings. Mason later died from

the gunshot wounds. No firearm was ever recovered.

B. STATE COURT PROCEEDINGS

Walker was arrested a year later and charged in state court with murder, felonious assault,

voluntary manslaughter, and possession of a weapon under disability. He was held in the

Cuyahoga County Jail until state prosecutors dismissed the charges against him without prejudice

in March 2019. In a press release following the dismissal, the prosecutor’s office explained that it

had decided to drop the charges against Walker after reviewing the surveillance footage, which a

spokesman said prosecutors had not reviewed prior to the grand jury indictment. According to the

spokesman, the state concluded from the footage that Walker was the victim of “an unprovoked

physical attack.” Not coincidently, Ohio’s new self-defense law, which shifted the burden of proof

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for self-defense in a homicide case from the defendant to the prosecution, took effect the same

month that the state chose to drop its charges against Walker. See Ohio Rev. Code Ann.

§ 2901.05(B).

C. FEDERAL INDICTMENT AND TRIAL

Immediately upon dismissal of the state charges, federal prosecutors in Ohio indicted

Walker for being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Before trial, Walker and the government agreed to four stipulations: (1) that Walker is

the person depicted in the surveillance footage wearing a blue jacket and seated near the door;

(2) that Walker is a convicted felon; (3) that the 9mm casings found at the crime scene “traveled

in and affected interstate commerce”; and (4) that a forensic examiner determined that all three

9mm rounds were fired from the same weapon.

Walker’s argument at trial was twofold. First, he argued that he did not possess the firearm

at any point before Mason attacked him. Rather, according to Walker, it was Mason who entered

the bar armed with the handgun; Walker merely swiped the gun from Mason during the brawl and

fired it in self-defense. Second, Walker asserted a justification defense, arguing that his violation

of the felon-in-possession statute was justified in the circumstances. The jury rejected both

arguments and convicted Walker for the felon-in-possession charge.

D. SENTENCING

The presentence report set Walker’s offense level at 29 based on a recommended cross-

reference to the federal voluntary manslaughter statute (18 U.S.C. § 1112) under USSG § 2K2.1(c)

and on the probation officer’s conclusion that Walker did not qualify for an acceptance-of-

responsibility reduction. Walker was in a criminal history category of III. Thus, according to the

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PSR, the advisory sentencing range under the Guidelines was 108 to 120 months’ imprisonment.1

Walker objected to all aspects of the PSR, including the manslaughter enhancement, the

recommended denial of the acceptance of responsibility reduction, and the sentencing range.

At the sentencing hearing, the district court adopted the PSR’s findings over Walker’s

objections. The court concluded that Walker was not entitled to a two-level reduction for

acceptance of responsibility because he contested his factual guilt by asserting the affirmative

defense of justification.

Walker objected to the voluntary manslaughter enhancement on the ground that he shot

Mason in self-defense rather than in the heat of passion. The court overruled Walker’s objection

for two reasons. First, it concluded that the jury heard and rejected the self-defense argument when

it convicted him despite a jury instruction on a justification defense. Second, the court opined that

Walker’s conduct in response to the unprovoked attack seemed “more akin to voluntary

manslaughter” than to self-defense.

In response to Walker’s objection to the cross-reference, the government urged, “It could

have been murder based on the video we played at trial. The defendant shot Mr. Mason while

running away from him. The threat had been neutralized.” The government also expressed its

“belie[f]” that Walker fired an additional shot “after Mr. Mason was on the ground,” even as it

acknowledged that the government “did not enter any evidence from any medical examiner” to

support that belief and that no witness testified to “an additional shot” fired after “[t]he threat had

been neutralized.”

1
The full Guidelines range for an offense level of 29 and criminal history category of III is 108 to 135 months’
imprisonment. USSG § 5A. However, the maximum sentence under the felon-in-possession statute is 10 years.
18 U.S.C. § 924(a)(2). Therefore, the PSR limited the recommended sentencing range to 108 to 120 months’
imprisonment.

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Case No. 19-3966, United States v. Walker

Despite the acknowledged lack of evidence, the court accepted the government’s account

of the surveillance footage played at trial and made the following findings of fact based on its

admittedly hazy recollection of the video:

He was then assaulted by Mr. Mason, and the two of them tumbled out to the front
of the bar. The Defendant then shot Mason, and as well as I can remember, I think
there were three shots fired. And my recall is that at least one of them may—or
there may have been testimony, one of them was when Mason was already down
on the ground.
....

As I best recall the evidence, you weren’t responding solely to a fight
brought on by the victim. You also could have walked away at least after he was
shot once and was on the ground. Those are major factors to me recommending the
90-month sentence.

The district court sentenced Walker to 90 months in prison, which is below the Guidelines

range for the offense level calculated in the PSR but above what the range would have been absent

the manslaughter enhancement. The district court explained its sentencing decision by engaging

in a detailed discussion of the § 3553(a) factors. The court also noted that it had conducted a poll

of the jury to determine what the jurors who convicted Walker thought to be a just sentence for his

felon-in-possession crime. On average, the jurors indicated that Walker should spend “about

50 months” in prison.

II.

We review sentences based on the advisory Sentencing Guidelines for reasonableness

under an abuse of discretion standard. United States v. Booker, 543 U.S. 220, 260–61 (2005). The

reasonableness determination has both a procedural and a substantive component. United States

v. Jones, 445 F.3d 865, 869 (6th Cir. 2006). For a sentence to be procedurally reasonable, “the

court must properly calculate the guidelines range, treat that range as advisory, consider the

sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select

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Case No. 19-3966, United States v. Walker

the sentence based on facts that are not clearly erroneous, and adequately explain why it chose the

sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). A defendant’s claim that

a sentence is substantively unreasonable is a claim that the sentence is “too long.” Id. at 442. The

substantive reasonableness inquiry is concerned, not with whether the district court “failed to

consider a factor or considered an inappropriate factor; that’s the job of procedural

unreasonableness”; rather, a sentence is substantively unreasonable if the district court “placed too

much weight on some of the [§ 3553(a)] factors and too little on others.” Id. at 442 (citing Gall v.

United States, 552 U.S. 38, 51 (2007)). We review the procedural and substantive reasonableness

of a sentence imposed by the district court for abuse of discretion, bearing in mind that factual

findings will stand unless clearly erroneous and that legal conclusions will stand unless our review

leads to a contrary conclusion. United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007).

III.

Walker’s sentence is procedurally unreasonable because the court made no factual findings

disproving any element of Walker’s self-defense argument.2 “District courts may cross-reference

under § 2K2.1 only where a preponderance of the evidence supports the conclusion that the

defendant committed or attempted to commit the offense that provides the cross-reference.”

United States v. Frost, 521 Fed. App’x 484, 490 (6th Cir. 2013). Thus, to enhance a sentence

based on a cross-reference to another offense, the court must find “by a preponderance of the

2
Though the issue was not raised directly by the parties, we also question the procedural reasonableness of the district
court’s reliance on the federal manslaughter statute, 18 U.S.C. § 1112, as the basis for the cross-reference. For the
cross-reference to be proper, the government must prove all elements of the cross-reference offense by a
preponderance of the evidence. One element of the federal manslaughter statute is that the crime must have occurred
“[w]ithin the special maritime and territorial jurisdiction of the United States.” 18 U.S.C. § 1112(b). Mason was
killed at a privately owned bar in Cleveland. Therefore, the requirements of § 1112(b) are not satisfied. The
Guidelines permit the court to base the cross-reference on state and local offenses as well as violations of federal law.
USSG § 2K2.1 n.14(c); Betts, 509 F.3d at 445 (cross-reference based on violation of a Missouri statute). On remand,
the district court should consider whether it would be more appropriate to apply Ohio law or some other federal law
when considering the cross-reference.

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Case No. 19-3966, United States v. Walker

evidence all of the essential elements of the underlying offense, including the absence of any

defenses.” United States v. Betts, 509 F.3d 441, 445 (8th Cir. 2007); see United States v. Hamilton,

550 F. App’x 291, 292 (6th Cir. 2014).

The Ohio self-defense statute requires a showing that the defendant “(1) was not at fault in

creating the situation giving rise to the affray; (2) had a bona fide belief that he was in imminent

danger of death or great bodily harm and that his only means of escape from such danger was in

the use of such force; and (3) did not violate any duty to retreat or avoid the danger.” State v.

Warren, No. 29455, 2020 WL 7863471, at *3 (Ohio Ct. App. 2020) (citing State v. Barnes,

759 N.E.3d 1240, 1243 (Ohio 2002)). To overcome the defense, the prosecution must disprove at

least one of those three elements. Id. At sentencing, “the government has the burden to prove the

absence of any defense by a preponderance of the evidence.” Betts, 509 F.3d at 445.

When Walker raised a self-defense objection to the manslaughter cross-reference at

sentencing, the district court gave no consideration to any of the elements of that defense. Rather,

the court simply noted that Walker raised a justification defense at trial, which the jury rejected,

then summarily concluded that the facts were “more akin to voluntary manslaughter” than

self-defense.

That approach was insufficient for two reasons. First, the justification defense at trial was

a defense only to the felon-in-possession charge, not the manslaughter cross-reference.

Justification and self-defense are different defenses with different elements and different burdens

of proof. Compare United States v. Kemp, 546 F.3d 759, 765 (6th Cir. 2008) (outlining elements

of a justification defense), with Warren, 2020 WL 7863471, at *3 (outlining elements of self-

defense). The jury’s determination that Walker was not justified in possessing ammunition has

little bearing on whether he was defending himself when he shot Mason. Second, in summarily

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concluding that the facts of this case are “more akin to voluntary manslaughter” than self-defense,

the district court made no reference to the self-defense standard, nor did it make factual findings

that were sufficiently stated to show that any element of that standard was unmet.3 The court

cannot just “summarily adopt the factual findings in the presentence report” over the defendant’s

objection or simply declare ipse dixit that the evidence supports those findings. United States v.

White, 492 F.3d 380, 415 (6th Cir. 2007) (quotation omitted). “Rather, the district court must

actually find facts, and it must do so by a preponderance of the evidence.” Id. at 416. “[F]ailure

to actually ‘find’ facts by a preponderance of the evidence on contested matters during sentencing

is error.” United States v. Shannon, 803 F.3d 778, 788 (6th Cir. 2015).4 Because the district court

failed to make actual findings of fact showing that all elements of the manslaughter cross-reference

were satisfied, “including the absence of any defenses,” Betts, 509 F.3d at 445, Walker’s enhanced

sentence is procedurally unreasonable.5

3
The dissent suggests that Walker forfeited the self-defense argument because he did not argue at sentencing that the
court was obliged to make detailed factual findings on the elements of self-defense. Dissent at 12. To preserve an
objection for appeal, a defendant need only clearly articulate the objection and the grounds for making the objection.
See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). At sentencing, Walker clearly articulated his
objection that the manslaughter cross-reference was inappropriate because he acted in self-defense, and he expressly
grounded that objection on the video evidence. Walker did not forfeit the argument.
4
Nothing in our decision would require the district court to conduct a “mini bench trial,” as the dissent asserts that it
would. Dissent at 14. We only require that sentencing courts engage in actual factfinding before applying an
enhancement. White, 492 F.3d at 416. Where facts contributing to an enhancement are in dispute, district courts have
often deemed it advisable to allow parties to call witnesses or to present video recordings and other evidence at the
sentencing hearing. See, e.g., United States v. Bucio, __F. App’x __, 2021 WL 2030077, at *4 (6th Cir. May 21,
2021); United States v. Bickerstaff, __ F. App’x __, 2021 WL 1511258, at *2 (6th Cir. Apr. 16, 2021). This is certainly
not necessary in all cases, and we take no position as to the advisability of such measures on remand. But see United
States v. McMeen, 49 F.3d 225, 226 (6th Cir. 1995) (“If a ‘contested sentencing enhancement factor appears in the
probation report and is not proved by the government at the hearing, the court must insure that the factor is otherwise
proved by reliable evidence before using it to increase the sentence.”).
5
We also note that the district court’s recitation of the facts may be inconsistent with what the surveillance footage
actually shows. At sentencing, the court itself expressed misgivings about its own recall of the evidence presented at
trial three months earlier. Because the court’s failure to make sufficient factual findings on self-defense is enough on
its own to warrant vacatur, we need not determine whether any of the factual findings the court did make were clearly
erroneous. However, on remand the district court should undertake a fresh review of the surveillance footage and
other evidence presented at trial before it makes any further findings of fact.

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Case No. 19-3966, United States v. Walker

IV.

Walker also raises a series of other challenges to his sentence. Because these challenges

are independent of the discussion above, and would otherwise persist on remand, we decide them

now.

First, he challenges the district court’s denial of an acceptance of responsibility reduction.

A defendant qualifies for a two-level reduction under the Guidelines if he “clearly demonstrates

acceptance of responsibility for his offense,” USSG § 3E1.1, by “truthfully admitting the conduct

comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any

additional relevant conduct.” Id. § 3E1.1 n.1. Though it is possible for a defendant to receive the

reduction despite “exercis[ing] his constitutional right to a trial,” such an outcome is “rare” and is

only appropriate where the defendant’s purpose in going to trial is “to assert and preserve issues

that do not relate to factual guilt,” such as a challenge to the constitutionality of a statute or the

applicability of a statute to his conduct. Id. § 3E1.1 n.2. Walker contested his factual guilt by

insisting that he did not possess the gun when he entered the bar. He claimed that the gun was

Mason’s and that he took it from Mason during the fight. What’s more, Walker argued that his

possession of the ammunition was justified in light of Mason’s unprovoked attack. The jury found

otherwise. An affirmative defense, like justification, is effectively a denial of factual guilt. By

denying his guilt, Walker declined to accept responsibility for his criminal conduct; therefore, the

district court correctly determined that he does not qualify for the reduction. See United States v.

Greene, 71 F.3d 232, 235 (6th Cir. 1995) (“Where, as the district court found here, a

defendant concocts a story that excuses his illegal conduct, a court may find no acceptance of

responsibility.”).

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Walker further argues that his sentence was procedurally unreasonable because the district

court denied his request for a downward departure under USSG §§ 5K2.10 and 5K2.12. The

former provision says that the sentencing court “may reduce the sentence below the guideline

range” where “the victim’s wrongful conduct contributed significantly to provoking the offense

behavior.” Id. § 5K2.10. The latter allows a downward departure where “the defendant committed

the offense because of serious coercion, blackmail or duress, under circumstances not amounting

to a complete defense.” Id. § 5K2.12. Walker notes that the district court did not refer to either

of these requested departures at sentencing and relies on United States v. Duane, 533 F.3d 441,

451 (6th Cir. 2008) for the proposition that the district court was required to provide “a reasoned

basis” for its decision not to grant the downward departures. That reliance is misplaced. In Duane,

we did not require that district courts respond to every argument for a downward departure. We

merely noted that it would be “ideal[]” for the district court to “address a defendant’s nonfrivolous

arguments for a lesser sentence.” Id. at 452. We “do not review a district court’s decision not to

depart downward unless the record shows that the district court was unaware of, or did not

understand, its discretion to make such a departure.” United States v. Santillana, 540 F.3d 428,

431 (6th Cir. 2008). Nor do we require that the district court “explicitly state that it is aware of its

discretion to make such a departure.” Id. “Rather, we presume that the district court understood

its discretion, absent clear evidence to the contrary.” Id. Walker has presented no such “clear

evidence.” Therefore, the district court did not abuse its discretion by declining to depart

downward under USSG 5K2.10 and 5K2.12.

Finally, Walker challenges two elements of his sentence as substantively unreasonable:

(i) the district court’s calculation of his criminal history score and (ii) its consideration of his

“acquitted conduct” at sentencing. The thrust of the first argument is that the court improperly

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based Walker’s entire criminal history category calculation on a single prior federal conviction.

But Walker cites no authority for why doing so would constitute an abuse of discretion, and in any

event, that is not what happened. Three of Walker’s criminal history points came from his prior

federal conviction, but he received two more points under USSG § 4A1.1(d) because the instant

felon-in-possession offense occurred while Walker was on supervised release, resulting in a

criminal history score of five and a criminal history category of III. Such a mechanical application

of the Guidelines is not an abuse of discretion.

As for the second argument, Walker contends that he was “acquitted” of manslaughter in

state court; thus, the manslaughter enhancement is improper. But the state trial court did not acquit

Walker. It merely dismissed the charges against him without prejudice. As discussed previously,

the manslaughter enhancement was improper, but not for this reason.

V.

Because Walker’s sentence enhancement was based on insufficient factual findings, we

vacate Walker’s sentence and remand for further proceedings consistent with this opinion.

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Case No. 19-3966, United States v. Walker

ALICE M. BATCHELDER, Circuit Judge, dissenting. For what it’s worth, I agree

with all but Section III of the majority opinion, which finds reversible error in the district court’s

application of the voluntary-manslaughter cross-reference. Even if the judge’s misstatements

during sentencing were substantive errors, those do not, in my view, amount to an abuse of

discretion. Walker did not contest those misstatements at sentencing, nor did he contend at that

hearing that the judge was obliged to make express findings of the self-defense elements, nor did

he object when the judge failed to do so. Ordinarily, we require a defendant to raise his issues at

sentencing to avoid forfeiture. And because, in my view, the evidence does not support Walker’s

self-defense claim, I would find voluntary manslaughter. So, even without granting deference or

discretion to the district court judge, I would find the errors harmless.

As the majority opinion makes clear, neither the events nor the evidence of those events is

in any real dispute. Walker was sitting at a bar, having a drink, and minding his own business.

But, as the jury found, he was armed with a loaded handgun and, being a convicted felon, was in

violation of 18 U.S.C. § 922(g)(1). The bar’s surveillance cameras recorded the events. Mason,

who was unarmed, attacked Walker from behind without warning, punching him savagely in the

face and head. Under this two-fisted barrage, Walker turned to fend off the blows with his left

arm while reaching for his pocket with his right hand. As Walker retreated towards the front door,

he had drawn his gun from his righthand pocket, but Mason’s continued attack brought the two of

them staggering out the door and onto the ground, grappling on the sidewalk, with Mason on top

of Walker. Walker fired three shots, hitting Mason in the abdomen and thigh. Walker fled, taking

the gun with him. Those gunshots killed Mason. It is noteworthy that it was Walker who escalated

this fight from non-deadly to deadly force and he did so in a matter of seconds.

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When the federal prosecutor charged Walker with the § 922(g)(1) felon-in-possession

violation, Walker asserted a justification defense, claiming that his need to defend himself against

Mason’s violent attack justified his having the gun and ammunition. When the evidence proved

that Walker had entered the bar armed with the loaded gun, long before the attack, that defense

had no reasonable likelihood of success. The jury convicted Walker as charged.

The presentence report (PSR) recommended a cross-reference to voluntary manslaughter,

which would increase the Guidelines’ base-offense level from 20 to 29. The PSR explained:

The guideline for 18 U.S.C. § 922(g)(1) offenses is found in USSG §2K2.1.
Subsection (c)(1)(B) provides [that] if the defendant used or possessed any firearm
or ammunition cited in connection with the commission of another offense, and if
death resulted, apply the most analogous offense guideline from Chapter Two, Part
A, Subpart 1 (Homicide).
This offense most closely aligns with Voluntary Manslaughter as defined by
18 U.S.C. § 1112(a) – Upon a sudden quarrel or heat of passion.
Voluntary Manslaughter has a base offense level of 29. USSG §2A1.3(a).

PSR at p. 4, ¶ 13 (paragraph break added) (relying on U.S.S.G. § 2K2.1(c)(1)(B)). There is no

dispute that a “death resulted” and there is no legitimate dispute that the most “analogous”

homicide offense is voluntary manslaughter: this was the outcome of “a sudden quarrel,” 18 U.S.C.

§ 1112(a), or “brought on by serious provocation occasioned by the victim that is reasonably

sufficient to incite the person into using deadly force,” O.R.C. § 2903.03.

At sentencing, Walker argued that the § 2K2.1(c)(1)(B) cross reference did not apply

because he shot Mason in self-defense, so he was not guilty of any homicide offense, including

voluntary manslaughter; that is, there was no “commission of another offense,” so there could be

no cross reference. Relying on § 2K2.1’s Commentary Note 14(C), which defines “another

offense” to “mean[] any federal, state, or local offense, . . . regardless of whether a criminal charge

was brought, or a conviction obtained,” the prosecutor argued: “So the consideration is not whether

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we could have charged [Walker] with manslaughter[,] [i]t’s whether or not the death happened as

a result of hi[s] carrying the ammunition in this case.” The prosecutor concluded his argument by

framing the analysis for the court this way:

[T]his is a preponderance of the evidence issue at this point. We weren’t required
to prove [Walker] guilty of manslaughter at trial. This is merely - - the evidence
does show [that Walker] carried the firearm and the ammunition for which he was
found guilty and [that] resulted in the death of Mr. Mason after a bar fight.

Neither Walker nor his attorney challenged this.

As a brief aside, Walker’s theory in this appeal is that, at the sentencing hearing, the

prosecutor had to produce specific evidence and the judge had to make express findings on the

record as to each of several elements in order to both prove voluntary manslaughter and disprove

self-defense. Under this theory, the judge had to conduct a mini bench trial on the voluntary-

manslaughter charge and self-defense defense. I do not believe that proposition is correct but,

even if it were, Walker never asked the district court for that: not in his sentencing memorandum

nor at any time during the sentencing hearing. At sentencing, he did not even object to or argue

against the prosecutor’s drastically different analytical approach. So even if a mini bench trial

were the proper approach, the judge did not abuse his discretion by failing to use an approach that

Walker never even requested, much less argued, and our review would be for plain error.

More importantly, I have found no support for the idea that the district court may not apply

a sentencing cross reference unless it conducts a bench trial on the cross-reference offense, at

which it requires that the prosecutor produce sufficient evidence to prove every element of the

cross-reference offense, and from which the court must detail, on the record, its findings as to

every one of those elements. Such micromanagement of a district court’s sentencing procedure is

improper. Moreover, it is unclear exactly what this mini bench trial (within the sentencing hearing)

would entail but given that it would apparently involve the defendant’s presenting affirmative

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defenses, which the prosecutor would have to overcome, it suggests witnesses and cross-

examination, evidentiary objections and rulings, and jury-instruction-type legal argument to

properly frame the offense, defense, and elements for each. Maybe it also requires experts, expert

reports, and opening and closing arguments. I cannot imagine.

The way I see it, the cross-reference Guidelines, like the consideration of relevant conduct,

were written to advise the district court in exercising its discretion when sentencing a defendant

whose actions led to consequences beyond those of the immediate conviction. The general premise

of § 922(g)(1), as I understand it, is that bad things tend to happen when convicted felons have

guns, so they are prohibited from possessing guns. A simple violation of § 922(g)(1), without

more, warrants some punishment; here, 41 to 51 months in prison. But a violation that leads to

bad results warrants more severe punishment, and a violation of § 922(g)(1) that leads to very bad

results (such as when a death results) warrants very severe punishment; here 108 to 120 months in

prison. The additional penalty is not because Walker was, would be, could be, or should be

convicted of voluntary manslaughter; it is because Walker’s decision to arm himself with a loaded

gun led to a very bad end, warranting a very severe punishment. The cross-reference aids

sentencing courts in quantifying consistently the additional punishment; here an additional 67 to

69 months. The prosecutor said this very well at the sentencing hearing:

But I go back to the original point, your Honor, that it was the decision to walk
around with a firearm. Whether or not it was at the [Westender] [B]ar that night or
anywhere else, while he was on supervised release, he was carrying a loaded
firearm and he should have known the consequences of those actions.
Whether or not it could have resulted in the death at a bar or not, it was a knowing
choice on his behalf and resulted in the death of Mr. Mason. What could have been
a fist fight was not.

If the court cannot apply a cross reference unless it has a mini trial on competing evidence at

sentencing and makes findings on every element of the cross-reference offense (and any defenses),

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then the cross-reference concept is useless. I think it is enough that the district court—considering

the record evidence, the PSR, and the defendant’s objections—finds the cross-reference offense

by a preponderance of the evidence.

Ordinarily “[e]ven if the district [court] judge does not make detailed findings as to these

supporting facts, the Court of Appeals need not remand the case; we may look to the record to

determine whether the district judge’s decision was clear error.” United States v. Vaught, 133 F.

App’x 229, 233 (6th Cir. 2005) (quoted with approval by United States v. Rios, 830 F.3d 403, 440

(6th Cir. 2016)). Here, the district court said the most “analogous” homicide offense would be

voluntary manslaughter, as the product of “a sudden quarrel.” Whether we consider the state or

federal definition of manslaughter, there is no legitimate claim that this was involuntary rather than

voluntary manslaughter and the judge’s characterization of it as voluntary manslaughter was not

clear error. The most analogous homicide offense is voluntary manslaughter.

Walker’s real argument is that the district court judge did not make an express statement

on the record finding that the prosecutor had disproven any element of Walker’s self-defense

claim.1 In Ohio, “[t]he elements of a self-defense claim differ based on whether the defendant

employed deadly or non-deadly force to defend against their perceived assailant.” Ohio v. Crowe,

145 N.E.3d 1180, 1185-86, ¶15 (Ohio Ct. App. 2019). For deadly force, the elements are that the

defendant: “(1) was not at fault in creating the violent situation, (2) had a bona fide belief that he

was in imminent danger of death or great bodily harm and that his only means of escape was the

use of force, and (3) did not violate any duty to retreat or avoid the danger.” Ohio v. Claren,

152 N.E.3d 449, 454-55, ¶14, (Ohio Ct. App. 2020) (quoting Ohio v. Goff, 942 N.E.2d 1075, 1082,

1
Walker’s self-defense claim and arguments are based entirely on Ohio law, with no mention of federal law. See
United States v. Desinor, 525 F.3d 193, 199 (2d Cir. 2008) (explaining that, in federal courts, self-defense is under
federal common law); United States v. Butler, 485 F.3d 569, 572 n.1 (10th Cir.2007) (same).

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Case No. 19-3966, United States v. Walker

¶36 (Ohio 2010)) (editorial corrections omitted). And “the force used [must] be reasonable. A

person is only privileged to use that force which is reasonably necessary to repel the attack.” Ohio

v. Reyes-Figueroa, 158 N.E.3d 939, 946, ¶ 27 (Ohio Ct. App. 2020). Under Ohio statute, the

burden is on the prosecutor to “prove beyond a reasonable doubt that the accused person did not

use the force in self-defense.” O.R.C. § 2901.05(B)(1).2

In my view, the record evidence clearly demonstrates that Walker’s use of deadly force

was unreasonable and unnecessary under the circumstances and, therefore, he did not meet the

elements of self-defense. When Mason—unexpectedly and viciously—started landing punches

with both hands to Walker’s face and head, Walker did not duck, flee, or fight back; Walker did

not even protect himself with both hands. Walker immediately reached for his handgun, turned

his body to free himself to shoot, and at his first opportunity, within seconds, fired his gun—three

times. That was not self-defense, it was an intentionally deadly response to a violent, but unarmed

assault. It was unnecessary for Walker to shoot Mason to defend himself, and his immediate

escalation to deadly force was unreasonable. I am confident, based on the record evidence, that

this was not self-defense. It is possible that the jury found likewise in rejecting Walker’s defense

claim at trial. Of course, a jury need not explain its findings for each element of a charge and

defense; only a judge conducting a sentencing mini trial would have to do that.

But it turns out that, in this case, the judge did reveal his view of, or his thoughts on, this

issue. Consider this exchange the judge had with Walker at the sentencing hearing:

2
Ohio revised this statute, effective March 28, 2019, to switch the burden of proof for a self-defense claim from the
defendant to the prosecutor. The Ohio Supreme Court has not considered a challenge to it or even applied it in an
opinion. The three Ohio Appellate Court opinions cited here are from Ohio’s Eighth District Court of Appeals, which
governs the City of Cleveland and Cuyahoga County, where this case took place. The Eighth District Court has
applied the statute as written, but other Ohio judges have questioned its constitutionality. See, e.g., Ohio v. Warren,
No. 29455, 2020 WL 7863471, 2020-Ohio-6990, ¶ 32 (Callahan, P.J., concurring).

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Case No. 19-3966, United States v. Walker

Court: How do you shoot him in the leg if he’s on top of you?
Walker: I don’t -- I don’t know. I mean I was afraid. I mean -- I was once told
that when you’re in fear of your life, any shirt fits. In that situation,
hood on, gloves on, this guy was seriously trying to mangle me, sir.
Court: So you’re afraid for your life? Probably all of us have been in fights
before, right?
Walker: Yes, sir. That wasn’t.
Court: How many times have you gotten the better of somebody or somebody’s
got the better of you that it didn’t result in death to you, or maybe you
win all your fights, but for most people, they win some, they lose some.
But you’re not in imminent danger of being killed because somebody
punches you.
Walker: True. The fear came from I see gloves, I see the hood, and there’s other
people here. I don’t know what’s going on, period.
No one puts on gloves to fight you. I mean again, you say we’ve been
in fights. I have fought before. I had a fifth.
Court: You’ve not been in fights when people have put on gloves before the
fight?
Walker: No, I never saw this.
Court: Okay. You’re living in a different world than I.

The judge did not add a “finding” such as: I find that Walker’s use of deadly force was

unreasonable and unnecessary under the circumstances and, therefore, this was not self-defense.

But I am confident that on this record he could have.

Because the most analogous homicide offense is voluntary manslaughter and because the

record contains sufficient evidence to prove that this was not self-defense, I would hold that the

district court properly calculated the advisory range at 108 to 120 months. If the court made a

mistake, it was departing downward from that range. In doing so, the judge relied on his ad hoc

polling of the jurors and their arbitrary recommendation of about 50 months (the other § 3553

factors actually favored a longer sentence), but that might have had a Mason-had-it-coming aspect.

The jurors convicted Walker of the § 922(g)(1) offense, but they heard argument that Mason was

a violent and irrational man; they heard testimony implying that Mason was a dealer of heroin,

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Case No. 19-3966, United States v. Walker

fentanyl and cocaine; and they saw the video of Mason as the provocateur and aggressor who

launched the premeditated and vicious surprise attack, so it is likely, or at least possible, that those

jurors had little sympathy for Mason. But “Walker shot Mason” is not the whole story. Walker

fired his handgun three times on a public street in a populated urban area. One of those shots—

we know that at least two hit Mason—could have hit a bystander, a passerby, or a neighbor at

home. If Mason had been a more sympathetic victim, the jurors might have been less inclined to

leniency with Walker’s hypothetical sentence.

I would have expected a sentence within the advisory range based on this record and the

district court’s consideration of the § 3553 factors. But because I do not find that the court

committed reversible error, I would affirm the judgment. Therefore, I respectfully dissent.

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