IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2009
No. 08-10120
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIFFANY MICHELLE JOHNSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH and SOUTHWICK, Circuit Judges, and RODRIGUEZ,
District Judge.*
JERRY E. SMITH, Circuit Judge:
Tiffany Johnston (“Tiffany”) appeals her sentence. We vacate and remand
for resentencing.
*
District Judge of the Western District of Texas, sitting by designation.
No. 08-10120
I.
Tiffany’s husband Jason Johnston, along with Cleties Conley, escaped
from prison and made their way to a friend’s house. Jason called Tiffany to pick
him up and asked her to bring his handgun. She obligingly packed the weapon
in the trunk of her car, loaded her son into the back seat, and collected the es-
capees. Once on the road, Jason retrieved his gun from the trunk.
Law enforcement officers initiated a traffic stop and ordered the foursome
to exit the vehicle. Tiffany pulled over and opened the door to comply, but Jason
fired a shot toward the officers. Tiffany slammed the door and sped away, then
stopped in a parking lot and indicated that she would surrender. She, her son,
and Conley got out of the car; Jason drove off alone and was caught.
Tiffany pleaded guilty of aiding and abetting the possession of a firearm
by a convicted felon. Section 2K2.1 of the United States Sentencing Guidelines,
which outlines the penalty for various firearm offenses, includes a cross-refer-
ence that substitutes the guideline sentence of another offense if the firearm was
used “in connection with” that other offense. Because the gun Tiffany trans-
ferred to her husband was used to fire at a police officerSSan attempted murder
SSthe district court followed the cross-reference and sentenced her for attempted
murder. After several adjustments,1 the court determined a criminal history
category of I and a total offense level of 38, yielding a guideline range of 235-293
months of imprisonment.
The statutory maximum for Tiffany’s crime, aiding and abetting the pos-
1
The base offense level for attempted murder is 33. The court applied a six-level up-
ward adjustment because the target of the attempted murder was a police officer; a two- level
upward adjustment for obstruction of justice; and a three-level downward adjustment for ac-
ceptance of responsibility.
2
No. 08-10120
session of a firearm by a convicted felon, is 120 months. The district court
granted two motions for downward departure: one from the government for Tif-
fany’s assistance in Jason’s prosecution and one from Tiffany for various back-
ground factors (e.g., spousal abuse). As a result, the court imposed a sentence
of 96 months.
Tiffany argues that the court should not have followed the cross-reference.
She contends that, if sentenced under the firearm section (rather than the at-
tempted murder section), she would have a criminal history category I and total
offense level 17, for a sentencing range of 24-30 months.
II.
We review the interpretation and application of the guidelines de novo.
United States v. Mitchell, 366 F.3d 376, 378 (5th Cir. 2004). We first determine
the correct interpretation of the cross-reference and then turn to whether the
district court properly applied it.
The cross-reference at issue states,
If the defendant . . . transferred a firearm . . . with knowledge or
intent that it would be used or possessed in connection with another
offense, apply . . . § 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, in turn, directs the dis-
trict court to § 2A2.1 (Assault with Intent to Commit Murder; Attempted Mur-
der).
The primary question is the meaning of the cross-reference’s “knowledge
3
No. 08-10120
or intent” requirement.2 Tiffany admits that she transferred the gun to Jason
with knowledge that it would be possessed in connection with the escape3 but de-
nies that she knew or intended that it would be used in connection with attempt-
ed murder. In response, the government relies on Application Note 14:
“In Connection With”.SS
(A) In General - Subsections (b)(6) and (c)(1) apply if the fire-
arm or ammunition facilitated, or had the potential of facilitating,
another felony offense or another offense, respectively.
U.S.S.G. § 2K2.1 cmt. n.14.4 The government, quoting the language of the appli-
cation note, claims that Tiffany did know that the firearm “had the potential of
facilitating” attempted murder, so the cross-reference should be followed.
2
The government briefly raises an alternative justification for affirming that avoids the
“knowledge or intent” issue. It argues that the attempted murder was relevant conduct within
the scope of § 1B1.3 (Relevant Conduct), which provides that “[u]nless otherwise specified
. . . cross references . . . shall be determined on the basis of . . . all acts . . . aided [and] abetted”
and “all reasonably foreseeable acts and omissions of others in furtherance of the jointly under-
taken criminal activity . . . .” The government suggests that the cross-reference should be fol-
lowed, because Tiffany aided and abetted the attempted murder by transferring the gun and
because the attempted murder was a “reasonably foreseeable” act in furtherance of the escape.
That is incorrect, because § 1B1.3(a) applies only “unless otherwise specified.” And
§ 2K2.1 does otherwise specify that the cross-reference should be followed only where the de-
fendant transferred a firearm knowing or intending it to be used in connection with another
offense. Cf. United States v. Gonzales, 996 F.2d 88, 91-92 (5th Cir. 1993) (finding that § 2K2.1-
(c)(1) “otherwise specified” because the offenses that could be considered were broader than the
relevant-conduct offenses).
3
If the district court followed the cross-reference based on Tiffany’s transferring the
firearm to aid in the escape, it would point to § 2P1.1 (Escape, Instigating or Assisting Escape).
Because the assisting-escape offense calculation does not result in a greater offense level than
does the firearm calculation, the cross-reference is not followed.
4
“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is au-
thoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or
a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38
(1993).
4
No. 08-10120
The government’s construction of the cross-reference is in error. Applica-
tion Note 14 clarifies the meaning of the “in connection with” phraseSSspecifical-
ly, the firearm must have facilitated or had the potential of facilitating another
offense.5 The note does not change the requirement that the defendant trans-
ferred the firearm with the “knowledge or intent” that it would be “used or pos-
sessed” for that other offense. To follow the cross-reference and apply the sen-
tence for another offense, the district court must find two elements: that (i) the
firearm facilitated or had the potential to facilitate another offense, and (ii) the
defendant transferred the firearm knowing or intending it to be used or pos-
sessed for that offense. Stated another way, it is not enough for the defendant
to know that the firearm is capable of facilitating another offense; he must know
that the firearm will be used to facilitate or potentially facilitate that offense.6
Thus, in the present case, the cross-reference should be followed only if
Tiffany transferred the gun knowing7 that Jason would shoot at anyone who
tried to stop him. On the other hand, if Tiffany knew a firearm could potentially
facilitate attempted murder, but did not know Jason would make such an at-
tempt, then the cross-reference should not be followed. The cross-reference also
5
The clarification of the “in connection with” language is significant in cases in which
the firearm was not actually used during an offense but had the potential to facilitate it. The
Amendment commentary for Application Note 14 instructs, for example, that the cross-refer-
ence applies where a defendant “takes a firearm during the course of [a] burglary, even if the
defendant did not engage in any other conduct with that firearm during the course of the burg-
lary.” U.S. SENTENCING GUIDELINES MANUAL, Supplement to Appendix C, Amendment 691.
6
The meaning of “offense” is broad. The defendant need not know the specific details
of the offense that will be committed. See, e.g., United States v. Cobb, 250 F.3d 346, 348-50
(6th Cir. 2001) (affirming cross-reference for attempted murder where recipient of gun did not
use it to kill the person defendant intended to be killed).
7
Neither the district court nor the government appears to suggest that Tiffany intended
for Jason to attempt murder.
5
No. 08-10120
should not be followed if Tiffany should have known (but did not actually know)
Jason would attempt murder.8
The district court did not properly apply the cross-reference. In its state-
ment of reasons, it indicated that it adopted the presentence report, which con-
cluded that the cross-reference applied because “the defendant knew or should
have known that providing the firearm to [Jason] would allow him to use the
firearm against law enforcement during the escape” (emphasis added). Addition-
ally, during the sentencing hearing, the court agreed with the government’s
statement that “[t]he question is did [the firearm] facilitate or did it have the po-
tential to facilitate an attempted murder.” Both are impermissible grounds for
following the cross-reference.
We therefore VACATE the judgment of sentence and REMAND for resen-
tencing consistent with this opinion. We express no view on what sentence the
district court should impose on remand.
8
The cross-reference is triggered only where there is intent or knowledge; it is not fol-
lowed where the defendant merely had reason to believe the firearm would be used to commit
another offense. By comparison, U.S.S.G. § 2K2.1(b)(6), also addressed by Application Note
14, explicitly includes such situations: “If the defendant . . . transferred any firearm . . . with
knowledge, intent, or reason to believe that it would be used or possessed in connection with
another felony offense, increase by 4 levels. If the resulting offense level is less than level 18,
increase to level 18” (emphasis added).
6