USA v. Frank Snowden

Filing

OPINION filed : Snowden't sentence is AFFIRMED, decision not for publication. Damon J. Keith, Gilbert S. Merritt (AUTHORING) and Danny J. Boggs, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0192n.06

FILED

Case No. 14-5607
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK SNOWDEN,
Defendant-Appellant.
____________________________________/

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Mar 11, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
TENNESSEE

Before: KEITH, MERRITT, and BOGGS, Circuit Judges.
MERRITT, Circuit Judge. Following a domestic dispute, Defendant Frank Snowden
shot at his girlfriend through a wall. He later pointed his gun at police when they arrived on the
scene. He pled guilty to one count of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g), and the district court imposed a 97-month sentence based on a crossreference for attempted second-degree murder under U.S.S.G. § 2A2.1(a)(2) and a six-level
enhancement for assaulting an official victim under U.S.S.G. § 3A1.2(c)(1).

On appeal,

Snowden argues that he lacked the requisite intent for either attempted second-degree murder or
assault. For the following reasons, we AFFIRM Snowden’s sentence.

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Case No. 14-5607
United States v. Snowden
I.

Factual and Procedural Background

In the early morning hours of January 1, 2013, police responded to a domestic
disturbance call where several shots had reportedly been fired. Angela Gilley, Snowden’s live-in
girlfriend, had advised dispatch that she had fled from the house and was hiding in a neighbor’s
garage.
Snowden was in the yard when the police arrived. He pointed his gun directly at several
of the responding officers, who retreated and set up a perimeter. After a few minutes, Snowden
reentered the house before returning to the yard while taping the gun to his hand.1 He proceeded
to alternate between pointing the gun at the officers and under his chin, threatening to commit
suicide. After returning inside once more, Snowden removed the tape from his hand, placed the
gun on the ground, and surrendered.
In a statement to police, Gilley reported that the incident began after she accused
Snowden of stealing three hydrocodone pills and drinking seven beers. A heated argument
ensued, during which Snowden screamed at Gilley, knocked over a lamp, and punched their
bedroom door. Snowden then used the bedroom phone to call his mother to come get him and
his 15-year-old son, who was sleeping upstairs. Meanwhile, Gilley had retreated into an adjacent
bathroom. While still inside, she heard five gunshots. Although no bullets passed into the
bathroom, police later discovered a tight pattern of five bullet holes in the wall separating the
two rooms. They also found shell casings “within inches” of the wall.
Following the incident, police interviewed Gilley’s son, who had been sleeping in an
upstairs bedroom. After being awakened by the commotion below, he heard Gilley crying and

1

In a later statement to police, Snowden said he had taped the gun to his hand because he believed it would
still discharge if he was shot—i.e., he wanted to ensure that he was killed either by officers or by his own hand.

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Case No. 14-5607
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Snowden shout, “Where is the bitch at? I am going to kill her.”2 A few seconds later, he heard
gunshots and believed that Snowden had killed his mother. At some point, he also heard
Snowden say, “There are fixing to be some dead cops in my yard.”
The next day, Snowden made a statement to police. He largely confirmed Gilley’s
version of events, but claimed he never intended any harm by his actions. He stated that he only
grabbed the gun from the bedroom because he “might have intended to kill himself.” In an effort
to explain firing the weapon, Snowden claimed he had been waving the gun around the bedroom
when it accidentally discharged—and then continued to fire due to the recoil mechanism.
Regarding the events in the yard, Snowden claimed that he went outside to kill himself and only
pointed the gun at the responding officers in an effort to make them back away from him.
Snowden pled guilty to one count of being a felon-in-possession of a firearm in violation
of 18 U.S.C. § 922(g). At the sentencing hearing, Snowden acceded to the facts in the PSR but
objected to two Guidelines calculations included in it: the application of the second-degree
murder cross-reference under U.S.S.G. § 2A2.1(a)(2) and a six-level enhancement under
§ 3A1.2(c)(1) (because the offense included an “official victim”). The district court adopted
these recommendations and imposed a 97-month sentence. This timely appeal followed.
II.
A.

Analysis

Attempted Second-Degree Murder Cross-Reference—U.S.S.G. § 2A2.1

Snowden argues that the district court should not have applied a cross-reference for
attempted murder—raising his Base Offense Level from 14 to 27—because there was
insufficient evidence to find that he intended to kill Gilley. Because a determination of criminal
responsibility is a mixed question of fact and law, we review it de novo. See United States v.
2

Gilley’s son changed this timeline slightly at the sentencing hearing, where he testified that he heard
Snowden make this threatening statement after the shooting.

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Whited, 473 F.3d 296, 297 (6th Cir. 2007). We review the facts employed by the district court to
decide criminal responsibility for clear error. See United States v. Katzopoulos, 437 F.3d 569,
574 (6th Cir. 2006).
To establish attempted second-degree murder, the Government was required to
demonstrate by a preponderance of the evidence that Snowden acted with “malice aforethought,”
United States v. Milton, 27 F.3d 203, 206 (6th Cir. 1994), and that he “committed an overt act
that constitute[d] a ‘substantial step’ toward commission of the crime.” United States v. Wesley,
417 F.3d 612, 618 (6th Cir. 2005). “Malice aforethought may be inferred when the defendant
grossly deviates from the standard of care to such an extent that a jury could conclude that he
must have been aware of a serious risk of death or serious bodily injury.” United States v.
Conatser, 514 F.3d 508, 523 (6th Cir. 2008) (internal quotation marks omitted).
In this case, the Government showed by a preponderance of the evidence that Snowden
intended to kill Gilley. After arguing with her, Snowden screamed, knocked things over, and
punched a door. When Gilley retreated to the bathroom, Snowden retrieved a handgun in the
adjacent bedroom. He fired five shots into the wall separating the two rooms, and around that
same time yelled out, “Where’s the bitch at? I’m going to kill her.” Although testimony was
inconsistent regarding whether Snowden made this statement before or after firing the gun, it is
irrelevant when he made this threat—simply that he made the statement evidences his intent to
inflict bodily harm. Additionally, the evidence demonstrated that Snowden must have fired the
gun at close range: responding officers noted that the bullet holes were in a tight pattern and
found shell casings inches from the wall. Finally, additional proof at sentencing established that
the gunshot pattern was such that the gun could not have been discharged accidentally due to the
recoil mechanism, as Snowden claims. This evidence discredits Snowden’s version of events.

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B.

Assault on Official Victim Enhancement—U.S.S.G. § 3A1.2(c)(1)

Snowden further contends that the district court erred in assessing a six-level
enhancement under U.S.S.G. § 3A1.2(c)(1)3 for assaulting the responding officers. This subsection “applies in circumstances tantamount to aggravated assault . . . [and] its applicability is
limited to assaultive conduct against such official victims that is sufficiently serious to create at
least a ‘substantial risk of serious bodily injury.’” U.S.S.G. § 3A1.2 app. n.4(A).
Snowden mistakenly argues that he could not have committed aggravated assault upon
the officers because he lacked the specific intent to cause bodily injury. Neither the text nor the
commentary to § 3A1.2(c)(1) suggests an intent requirement—rather, this enhancement only
requires that Snowden acted recklessly. See United States v. Coleman, 664 F.3d 1047, 1051 (6th
Cir. 2012) (citing, inter alia, Tenn. Code Ann. § 39-11-302(c) (“[A] person . . . acts recklessly
with respect to circumstances surrounding the conduct or the result of the conduct when the
person is aware of but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur.”)). Because Snowden pointed his firearm directly at
several of the responding officers, there is no error.
III.

Conclusion

For the foregoing reasons, we AFFIRM Snowden’s sentence.

3

U.S.S.G. § 3A1.2(c)(1) provides for a six-level increase “[i]f, in a manner creating a substantial risk of
serious bodily injury, the defendant . . . knowing or having reasonable cause to believe that a person was a law
enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom.”

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