USA v. Tory Starr

Filing

Opinion issued by court as to Appellant Tory John Starr. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]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.

Case: 16-15227

Date Filed: 11/30/2017

Page: 2 of 15

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
2

Case: 16-15227

Date Filed: 11/30/2017

Page: 3 of 15

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).
3

Case: 16-15227

Date Filed: 11/30/2017

Page: 4 of 15

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.
4

Case: 16-15227

Date Filed: 11/30/2017

Page: 5 of 15

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;
5

Case: 16-15227

Date Filed: 11/30/2017

Page: 6 of 15

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

6

Case: 16-15227

Date Filed: 11/30/2017

Page: 7 of 15

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
7

Case: 16-15227

Date Filed: 11/30/2017

Page: 8 of 15

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

8

Case: 16-15227

Date Filed: 11/30/2017

Page: 9 of 15

recommendation, which determined the substantive offense was attempted firstdegree 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.
9

Case: 16-15227

Date Filed: 11/30/2017

Page: 10 of 15

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
10

Case: 16-15227

Date Filed: 11/30/2017

Page: 11 of 15

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
11

Case: 16-15227

Date Filed: 11/30/2017

Page: 12 of 15

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.
12

Case: 16-15227

Date Filed: 11/30/2017

Page: 13 of 15

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 crossreference, 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).
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).
5

13

Case: 16-15227

Date Filed: 11/30/2017

Page: 14 of 15

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,
14

Case: 16-15227

Date Filed: 11/30/2017

Page: 15 of 15

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).
15