NOT RECOMMENDED FOR PUBLICATION File Name: 25a0049n.06
No. 24-1491
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 28, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN JOSHUA FORDHAM, ) Defendant-Appellant. ) OPINION )
Before: SUTTON, Chief Judge; MOORE and RITZ, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Joshua Fordham robbed two individuals in
the parking lot of a Detroit deli at gunpoint. During the robbery, one of the victims pulled his own
concealed firearm on Fordham, shooting Fordham in the chest; Fordham shot back, missing the
victim. Following his arrest, Fordham was charged with possessing a firearm as a felon in violation
of 18 U.S.C. § 922(g)(1). At the motions stage, Fordham unsuccessfully moved to dismiss the
indictment, arguing that § 922(g)(1) was unconstitutional both on its face and as applied to him.
After entering a guilty plea, at sentencing Fordham argued against the application of a cross-
reference provision of the United States Sentencing Guidelines (“the Guidelines”) that increased
his sentencing exposure due to his attempt to murder the victim who had shot him; that challenge
was also unsuccessful. The district court ultimately sentenced Fordham to 121 months in prison.
On appeal, Fordham challenges the district court’s denial of his motion to dismiss, arguing
that § 922(g)(1) is unconstitutional as applied to him. And he challenges the propriety of the
district court’s application of the U.S.S.G. § 2K2.1(c)(1) cross-reference provision, arguing that No. 24-1491, United States v. Fordham
he did not possess the requisite intent at the time of the crime for his conduct to qualify as attempted
first-degree murder. But because Fordham’s criminal history presents ample evidence of his
dangerousness, the Second Amendment does not bar his disarmament and conviction. And the
district court did not clearly err in determining that Fordham’s conduct constituted attempted first-
degree murder and applying the appropriate Guidelines. For those reasons, we AFFIRM the
district court.
I. FACTUAL BACKGROUND
A. Fordham’s Attempted Robbery
On February 8, 2023, Joshua Fordham followed two individuals into and out of a
delicatessen in Detroit, Michigan. R. 52 (PSR at ¶ 11) (Page ID #257). Once in the parking lot
outside the deli, Fordham approached the individuals (Victims 1 and 2), threatening Victim 1 if he
did not give Fordham his wallet. Id. After Victim 1 handed his wallet to Fordham, Fordham
turned his firearm on Victim 1 and proceeded to pat down his pockets. Id. Victim 1—who had a
concealed pistol license—then pulled out his own firearm, shooting at Fordham and hitting him in
the chest. Id. at ¶ 11, 12 (Page ID #257). Fordham shot back, firing once before his firearm
malfunctioned. Id. at ¶ 11 (Page ID #257). The two then ran in opposite directions. Id.1
Police arrived on the scene shortly after the shooting, having detected gunfire through the
police department’s Shot-Spotter technology. Id. at ¶ 12 (Page ID #257). Upon arriving, they
discovered Fordham lying on the ground at the side of the building. Id. A firearm and a wallet
containing Victim 1’s identification were in his possession. Id.
1 The entire encounter was caught on a surveillance camera affixed to the exterior of the deli. That video was made available to all parties in the case below and was provided to this court on appeal.
2 No. 24-1491, United States v. Fordham
B. The Proceedings Below
A grand jury indicted Fordham on one count of possessing a firearm after being convicted
of a felony offense in violation of 18 U.S.C. § 922(g)(1). R. 24 (Indictment at 1) (Page ID #61).
At the time of the shooting outside the deli, Fordham had a criminal record including felony
convictions for attempting to carry a concealed weapon, carrying a concealed weapon, armed
robbery, and felony firearm possession. R. 52 (PSR at ¶ 14) (Page ID #257).
After entering an initial plea of not guilty, Fordham moved to dismiss the indictment,
arguing that 18 U.S.C. § 922(g)(1) was unconstitutional both on its face and as applied to him
under the framework set forth in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1
(2022). R. 42 (Mot. to Dismiss at 12) (Page ID #159). After hearing oral arguments from both
parties as to the motion, the district court denied the motion from the bench. R. 68 (Mot. to Dismiss
Hr’g Tr. at 11–13) (Page ID #413–15). Adopting in full its reasoning from a prior case, United
States v. Keels, 680 F. Supp. 3d 841 (E.D. Mich. 2023), the district court reasoned that there was
no need to conduct an individualized analysis of Fordham’s criminal history to determine the
constitutionality of § 922(g)(1) as applied to him because the felon-disarmament statute is
supported by history and consistent with Supreme Court precedent. Id. at 12–13 (Page ID #414–
15); see Keels, 680 F. Supp. 3d at 849. The district court then issued an order denying the motion
the same day. R. 47 (Mot. to Dismiss Order) (Page ID #224).
Shortly thereafter, Fordham entered a guilty plea. R. 69 (Plea Hr’g Tr. at 13) (Page ID
#430). Fordham entered his plea without a written plea agreement. Id. at 4, 18 (Page ID #421,
435); R. 52 (PSR at ¶ 71) (Page ID #266).
3 No. 24-1491, United States v. Fordham
In preparation for sentencing, the United States Probation Office prepared a presentence
investigation report (“PSR”) calculating Fordham’s proposed sentence under the Guidelines. R.
52 (PSR at ¶¶ 20–30) (Page ID #258–59). Beginning with U.S.S.G. § 2K2.1, the Guidelines
provision applicable to firearms offenses, the Probation Office then applied § 2K2.1(c)(1), a cross-
reference provision that increases a defendant’s base offense level “[i]f 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.” Id. at ¶ 21 (Page ID #258) (quoting
§ 2K2.1(c)(1)). The PSR concluded that Fordham had used the firearm in connection with an
assault with the intent to murder Victim 1. Id. at ¶ 21–22 (Page ID #258). Under the cross-
reference, the Probation Office then applied § 2X1.1, the Guidelines provision applicable to
attempt, solicitation, and conspiracy offenses, upon determining that the resulting base offense
level of 33—the base offense level under § 2A2.1(a)(1), the Guidelines provision for assault with
the intent to commit first-degree murder—would be greater than Fordham’s base offense level
without applying the cross-reference. Id. at ¶ 22 (Page ID #258). The Probation Office therefore
calculated Fordham’s base offense level under § 2X1.1(a) as 33. Id. After subtracting three levels
for acceptance of responsibility, the Probation Office calculated Fordham’s total offense level as
30. Id. at ¶ 31 (Page ID #259). Combined with his criminal history category of III, Probation
concluded that Fordham’s resulting advisory Guidelines range was 121 to 151 months of
imprisonment. Id. at ¶ 70 (Page ID #266).
Fordham filed written objections to the PSR, objecting to the Probation Office’s
characterization of the facts of the offense conduct and to the applicability of the cross-reference
provision. R. 52 (PSR at 18–29) (Page ID #271–82). The government responded to those written
4 No. 24-1491, United States v. Fordham
objections, pointing to the surveillance video of the encounter in debunking Fordham’s version of
events. Id. at 46–49 (Page ID #299–302). After reviewing the objections and response, the
Probation Office concluded that the original PSR was correct and did not amend. Id. at 21 (Page
ID #274).
At sentencing, Fordham once again objected to the applicability of the cross-reference
provision to the facts of his case. R. 70 (Sent’g Tr. at 6) (Page ID #443). Specifically, Fordham
objected to the applicability of § 2A2.1(a)(1), arguing that the government had failed to establish
the requisite intent for attempted first-degree murder. Id. at 6–8 (Page ID #443–45). Because he
fired his firearm only in response to Victim 1 shooting at him first, Fordham argued, he lacked the
specific intent to kill required for a finding of attempted first-degree murder. Id. at 8, 13–14 (Page
ID #445, 450–51). In response, the government referred the court to the surveillance footage of
the encounter and argued that Fordham’s specific intent could be inferred from the facts that one
of the victims had reported that Fordham had threatened to kill Victim 2 if Victim 1 did not hand
over his wallet; that Fordham pointed a firearm towards Victim 1 and seemingly attempted to fire
a shot2; and that after Fordham and Victim 1 ran away from each other, Fordham turned around
and fired a shot towards Victim 1. Id. at 16–18 (Page ID #453–55).
After hearing argument from both parties, the district court determined, “by a
preponderance of the evidence, and based upon the video . . . that had the victim been struck by
the bullet and died, the assault would have matured into a murder,” finding “that Mr. Fordham’s
2 The PSR characterizes this series of events as follows: while Fordham patted down Victim 1, Victim 1 “pulled out his own firearm and shot at FORDHAM,” at which point Fordham “shot back at the victim once before his firearm malfunctioned and failed to work.” R. 52 (PSR at ¶ 11) (Page ID #257). It is unclear from the PSR and from the surveillance video at what point the firearm malfunctioned. In any event, Fordham was able to shoot the firearm in Victim 1’s direction at least once, because the bullet from his firearm missed Victim 1 and hit the window of Fordham’s own car.
5 No. 24-1491, United States v. Fordham
conduct constituted an intent to kill or intent to do great bodily harm” because the act “was
committed during the perpetration of a robbery.” Id. at 20–21 (Page ID #457–58). The district
court therefore determined that Fordham’s act of shooting at Victim 1, had Victim 1 died, would
have constituted first-degree murder within the meaning of § 2A2.1(a)(1) and applied the requisite
33-point base offense level. Id. at 21 (Page ID #458).
After deducting three levels for acceptance of responsibility, the district court concluded
that Fordham’s resulting Guidelines range was 121 to 150 months. Id. The district court
considered the arguments of counsel, Fordham’s allocution, letters submitted on behalf of
Fordham, and relevant 18 U.S.C. § 3553(a) factors. Id. at 27–29 (Page ID #464–66). The district
court then sentenced Fordham to 121 months of imprisonment, a sentence at the lowest end of his
Guidelines range. Id. at 30 (Page ID #467); R. 64 (Judgment at 2) (Page ID #394). Fordham
timely appealed. R. 65 (Notice of Appeal at 1) (Page ID #400).
II. DISCUSSION
A. Standard of Review
Fordham raises two issues on appeal. First, he challenges the constitutionality of 18 U.S.C.
§ 922(g)(1) as applied to him. We review such challenges de novo. United States v. Morton, 123
F.4th 492, 495 (6th Cir. 2024).
Second, Fordham challenges his sentence, arguing that the district court improperly applied
the U.S.S.G § 2K2.1(c)(1)(A) cross-reference provision. “We review the district court’s legal
interpretation of the sentencing guidelines de novo and its factual findings under the clearly
erroneous standard.” United States v. Mukes, 980 F.3d 526, 533 (6th Cir. 2020). And we “give
‘due deference’ to a district court’s application of the Guidelines to the facts” of a particular
6 No. 24-1491, United States v. Fordham
defendant’s case. United States v. Jones, 81 F.4th 591, 600 (6th Cir. 2023) (quoting United States
v. Wallace, 51 F.4th 177, 183 (6th Cir. 2022)).
B. Fordham’s As-Applied § 922(g)(1) Challenge
Fordham’s first assignment of error is that the district court erred in denying his motion to
dismiss the indictment on the ground that § 922(g)(1) is unconstitutional as applied to him. As an
initial matter, the government argues that we should forego analysis of Fordham’s Bruen challenge
because his unconditional guilty plea “waives all non-jurisdictional defects.” Appellee Br. at 10.
But we need not address the government’s waiver argument, because Fordham’s challenge fails
even on de novo review. See, e.g., United States v. Hewlett, No. 23-2040, 2024 WL 4564645, at
*4 (6th Cir. Oct. 24, 2024) (declining to consider the government’s waiver argument where
defendant’s as-applied challenge to § 922(g)(1) failed plain-error review).
Fordham’s challenge arises from the Supreme Court’s decision in Bruen setting forth a
new framework for evaluating the constitutionality of provisions curtailing firearm ownership and
requiring that any such regulation be consistent with our nation’s “history and tradition.” 597 U.S.
at 22; see also United States v. Rahimi, 602 U.S. 680, 692 (2024) (holding that, to determine
whether a firearm regulation is permissible, we are to consider whether the regulation is “consistent
with the principles that underpin our regulatory tradition”). We evaluated the constitutionality of
§ 922(g)(1) under this new framework in United States v. Williams, in which we concluded that
the statute “is constitutional on its face and as applied to dangerous people.” 113 F.4th 637, 662–
63 (6th Cir. 2024). Thus, in our circuit, an individual seeking to dismiss a § 922(g)(1) charge must
demonstrate “that he himself is not actually dangerous” to succeed on a Second Amendment
challenge. Id. at 663.
7 No. 24-1491, United States v. Fordham
Fordham fails to make such a showing. To determine whether an individual is dangerous,
courts are to “make fact-specific dangerousness determinations after taking account of the unique
circumstances of the individual, including details of his specific conviction.” Id. “[W]hen
considering an individual’s dangerousness, courts may evaluate a defendant’s entire criminal
record—not just the specific felony underlying his section 922(g)(1) prosecution.” Id. Although
we have avoided creating “bright categorical lines” to determine what criminal conduct
demonstrates dangerousness, we have noted that “violent crimes are at least strong evidence that
an individual is dangerous.” Id. at 658, 660.
In determining Fordham’s dangerousness, then, we look to the offense conduct—which
involved Fordham robbing two people at gunpoint and shooting a firearm during the commission
of the armed robbery—as well as Fordham’s previous convictions for carrying a concealed
weapon, felony firearm possession, and armed robbery. R. 52 (PSR at ¶¶ 33–35) (Page ID #259–
61). Fordham’s 2013 conviction for armed robbery is particularly probative of his dangerousness;
in that instance, Fordham was in a vehicle with three individuals when he produced a firearm,
demanded the individuals’ cell phones, took the keys out of the ignition, and shot one of the
individuals in the leg. Id. at ¶ 35 (Page ID #261). The violent nature of Fordham’s past felony
convictions and of the offense conduct involved in the present offense indicates that Fordham “is
exactly the type of individual our history and tradition allow Congress to disarm.” United States
v. Parham, 119 F.4th 488, 496 (6th Cir. 2024) (holding that § 922(g)(1) was constitutional as
applied to a defendant whose criminal record included two homicide-related convictions, including
the attempted second-degree murder of a young child); see also Morton, 123 F.4th at 499–500
(holding that § 922(g)(1) was constitutional as applied to a defendant previously convicted of
8 No. 24-1491, United States v. Fordham
wanton endangerment for shooting at an ex-girlfriend and assault resulting from a domestic-
violence incident); United States v. Goins, 118 F.4th 794, 804–05 (6th Cir. 2024) (holding that
Congress could lawfully disarm a defendant who had been charged five times in an eight-year
period with driving under the influence).
Fordham argues that we should nevertheless remand because the district court failed to
allow him the opportunity to make “an individualized showing that he himself is not actually
dangerous” as required under Williams. 113 F.4th at 663. But the district court did not have the
benefit of Williams when it denied Fordham’s motion to dismiss in January 2024, seven months
before Williams was decided. Had the district court been on notice of the requirement that it allow
Fordham to make such a showing, the district court undisputably would have come to the
conclusion that Fordham was a sufficiently dangerous person to warrant his disarmament. See,
e.g., Morton, 123 F.4th at 500 (holding that remand to the district court for a reassessment of
dangerousness under Williams was unnecessary where the defendant’s criminal record
“demonstrates dangerousness, specifically that he has committed ‘violent’ crimes ‘against the
person’”) (quoting Williams, 113 F.4th at 658). Because Fordham clearly falls within the category
of individuals that may be lawfully disarmed, remand would be an inappropriate remedy here. We
therefore conclude that § 922(g)(1) is constitutional as applied to Fordham and affirm the district
court’s denial of Fordham’s motion to dismiss.
C. The Attempted Murder Cross-Reference
Fordham’s second assignment of error is that the district court improperly applied the
U.S.S.G. § 2K2.1(c)(1)(A) cross-reference provision in calculating his base offense level because
he lacked the requisite intent for a finding of attempted first-degree murder under U.S.S.G.
9 No. 24-1491, United States v. Fordham
§ 2A2.1(a)(1). Because we review the district court’s factual findings for clear error, its
determination that Fordham’s conduct constituted attempted first-degree murder “is not clearly
erroneous ‘so long as the finding is plausible in light of the record viewed in its entirety.’” United
States v. Miller, 73 F.4th 427, 430 (6th Cir. 2023) (quoting United States v. Grant, 15 F.4th 452,
457 (6th Cir. 2021)); see United States v. Krimsky, 230 F.3d 855, 860 (6th Cir. 2000) (“Whether a
defendant has the requisite intent . . . is a question of fact . . . .”).
We look to the federal murder statute to determine what constitutes first-degree murder.
See United States v. Mills, __ F.4th __, No. 24-1270, 2025 WL 211896, at *3 (6th Cir. Jan 16,
2025). “Under that statute, ‘[m]urder is the unlawful killing of a human being with malice
aforethought.’” Id. (quoting 18 U.S.C. § 1111(a)). Additionally, the statute dictates that “[e]very
murder . . . committed in the perpetration of, or attempt to perpetrate, any . . . robbery . . . is murder
in the first degree.” 18 U.S.C. § 1111(a).
“[A]n attempt to commit murder,” meanwhile, “requires a specific intent to kill.” Miller,
73 F.4th at 430 (quoting United States v. Howell, 17 F.4th 673, 690 (6th Cir. 2021)). “To apply
the attempted-murder cross-reference, a district court must therefore find ‘by a preponderance of
the evidence’ that the defendant ‘possessed the specific intent to kill.” Id. (quoting Howell, 17
F.4th at 689–90). “The specific intent to kill ‘may be proven by inference from any facts in
evidence.’” Warren v. Smith, 161 F.3d 358, 361 (6th Cir. 1998) (citation omitted); see also United
States v. Warbonnet, 750 F.2d 698, 700 (8th Cir. 1984).
Here, the district court found, based upon the surveillance video, that after Victim 1 shot
Fordham in the chest, “Fordham retreats, points the gun, retreats again, points the gun and fires.”
R. 70 (Sent’g Tr. at 20) (Page ID #457). “This fact alone”—that is, the district court’s finding that
10 No. 24-1491, United States v. Fordham
Fordham aimed a gun in Victim 1’s direction and fired—“supports a finding of specific intent.”
United States v. Grant, 15 F.4th 452, 458 (6th Cir. 2021); see also United States v. Caston, 851 F.
App’x 557, 564 (6th Cir. 2021) (“[W]e have upheld a district court’s finding of the intent to kill
based solely on the fact that the defendant shot in the victim’s direction such that the bullet could
have struck him.”) (citing United States v. James, 575 F. App’x 588, 590, 596–97 (6th Cir. 2014)).
The record therefore supports the inference that Fordham had the specific intent to kill Victim 1
when he pointed a gun at Victim 1 and fired in his direction.
Fordham argues that he lacked the requisite intent to kill because he shot at Victim 1 only
as a response to Victim 1 shooting at him first. Appellant Br. at 19. But neither of the two
unreported district court cases to which Fordham refers supports the notion that specific intent to
kill is vitiated when a victim is the first to shoot an initial aggressor. United States v. McCaslin,
No. 1:21-cr-10120-JDB-1, 2022 WL 16921695, at *6 (W.D. Tenn. Nov. 14, 2022) (holding that
the attempted-murder cross-reference was inapplicable where the defendant was not the first
aggressor); United States v. Pyle, No. 15-00054, 2017 WL 2532324, at *3 (M.D. Tenn. June 12,
2017) (sustaining an objection to the attempted-murder cross-reference where the defendant was
not the initial aggressor and where his firearm discharged accidentally). Nor are we aware of any
authority, in our circuit or otherwise, supporting Fordham’s theory. Accordingly, we conclude
that the district court did not err in finding, by a preponderance of the evidence, that Fordham
attempted the first-degree murder of Victim 1 and in applying the resultant 33-point base offense
level under U.S.S.G. § 2A2.1(a)(1).
11 No. 24-1491, United States v. Fordham
III. CONCLUSION
We hold that 18 U.S.C. § 922(g)(1) is constitutional as applied to Fordham. And the
district court did not clearly err when it concluded that Fordham’s conduct constituted attempted
first-degree murder and applied the U.S.S.G. § 2K2.1(c)(1) cross-reference provision as a result.
We AFFIRM the judgment of the district court.