United States v. Sammy Ellis, Jr.

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 11, 2025
• Docket: 23-4625
• Status: Published

Opinion

USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 1 of 12

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4625

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

SAMMY LEE ELLIS, JR.,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Timothy M. Cain, Chief District Judge. (7:22-cr-00396-TMC-1)

Argued: October 30, 2024 Decided: March 11, 2025

Before WILKINSON and BERNER, Circuit Judges, and Brendan A. HURSON, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge Berner wrote the opinion, in which Judge Wilkinson and Judge Hurson joined.

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Michael G. Shedd, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Adair F. Boroughs, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 2 of 12

BERNER, Circuit Judge:

Sammy Lee Ellis, Jr. had been drinking when he pulled out a gun and shot Lamar

Gross in the abdomen. Gross is the son of Ellis’s estranged fiancé Dionne Beatty. Ellis pled

guilty to one count of illegally possessing a firearm and ammunition as a person who had

previously been convicted of a felony. This is a crime under federal law. The U.S.

Probation Office prepared a presentence investigation report that applied a cross-reference

to attempted murder under the U.S. Sentencing Guidelines. Over Ellis’s objections, the

district court applied this cross-reference, which became the operative base offense level

for purposes of Ellis’s sentencing.

Ellis raises two arguments on appeal. First, he contends that the district court erred

in failing to consider the federal defense of voluntary intoxication to attempted murder that

he argues would preclude application of the attempted murder cross-reference. Second, he

contends that there was insufficient evidence to support the use of the attempted murder

cross-reference in his case. Ellis asks this court to vacate his sentence and remand for

resentencing.

For the reasons set forth below, we conclude that the district court correctly applied

the attempted murder cross-reference and that there was substantial evidence to support the

district court’s conclusion that Ellis’s shooting of Gross amounted to attempted murder

under the Sentencing Guidelines. Accordingly, we affirm.

2 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 3 of 12

I. Background

A. Factual History

Sammy Lee Ellis, Jr. and his former fiancé Dionne Beatty had a tumultuous

relationship. They fought a lot, both verbally and physically. When Ellis shot Beatty’s son

Lamar Gross, Gross lived with his mother in her apartment. Although Ellis had also

intermittently lived with Gross and Beatty in the past, Ellis was not living with them when

the shooting took place. Beatty had repeatedly tried to sever her relationship with Ellis, but

Ellis refused to leave Beatty and Gross alone. Beatty decided it was time to obtain a

restraining order against Ellis.

On the day of the shooting, Gross left Beatty’s apartment to get his car to drive his

mother to go secure a restraining order. As he was leaving the apartment, Gross

encountered Ellis lurking at the bottom of a stairwell outside. Gross testified that Ellis

looked and sounded drunk and smelled of alcohol. Gross observed a large bottle of beer

next to Ellis. Ellis acknowledged that he had been drinking.

Although Gross attempted to ignore Ellis, Ellis spoke to him anyway. Ellis asked

Gross whether Beatty was still angry with him. Gross replied that she was. Ellis then said

“he was going to hit the man upstairs.” J.A. 86. Although Gross indicated that it was not

clear what Ellis meant by “hit,” Gross later testified that he believed this meant that Ellis

intended to shoot a man who lived in an upstairs apartment. The conversation quickly

spiraled. Gross told Ellis that “he was crazy and was going to jail.” J.A. 86. Ellis then began

yelling and arguing with Gross, and Gross replied by telling Ellis something along the lines

of, “yo, you’re really going to get yourself arrested.” J.A. 96.

3 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 4 of 12

Ellis then pulled out a gun and shot Gross once in the abdomen. Ellis was about ten

feet away from Gross at the time of the shooting. At his detention hearing, Ellis admitted

that he shot Gross but insisted that he did so accidentally and never pointed the gun at

Gross. Ellis did, however, concede that the barrel “obviously” must have been pointed in

the direction of Gross for him to have been shot. J.A. 26. Gross sustained serious injuries.

He underwent surgery and remained hospitalized for two days following the shooting.

Ellis was charged under South Carolina state law with attempted murder and

possession of a firearm during a violent crime. A federal grand jury later indicted Ellis on

one federal count of being a felon in possession of a firearm and ammunition, because Ellis

had been previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

B. Procedural History

Ellis pled guilty to the federal charge without a plea agreement. The U.S. Probation

Officer (USPO) assigned to his case issued a presentence investigation report (PSR)

calculating a U.S. Sentencing Guidelines (Guidelines) range of 97 to 120 months’

imprisonment.

Some background is helpful as we consider the role of the relevant Guidelines and

cross-references. The governing Guideline to determine the base level for a defendant, like

Ellis, who unlawfully possessed a firearm and ammunition, is U.S.S.G. § 2K2.1(a)(6)(A)

(the firearms or ammunition Guideline). 1 The firearms or ammunition Guideline contains

1 All references are to the 2021 Sentencing Guidelines, which were in effect at the time of Ellis’s sentencing. See, e.g., Peugh v. United States, 569 U.S. 530, 537–38 (2013); 18 U.S.C. § 3553(a)(4)(A)(ii); U.S.S.G. § 1B1.11(a). 4 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 5 of 12

a cross-reference provision, U.S.S.G. § 2K2.1(c)(1) (the firearms or ammunition

cross-reference). This cross-reference applies 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.” U.S.S.G. § 2K2.1(c)(1). Relevant to Ellis’s

case, if the defendant used a firearm or ammunition to commit “another offense,” then the

firearms or ammunition cross-reference directs the court to apply U.S.S.G. § 2X1.1 (the

attempt Guideline), with respect to that other offense “if the resulting offense level is

greater than that determined” under the firearms or ammunition Guideline.

U.S.S.G. § 2K2.1(c)(1)(A). The attempt Guideline contains its own cross-reference

provision. That cross-reference directs the court to apply the Guideline that governs the

specific offense if that offense is “expressly covered by another [G]uideline section.”

U.S.S.G. § 2X1.1.

Based on Ellis’s attempted murder charge, the USPO applied the Guideline for

attempted murder, U.S.S.G. § 2A2.1(a) (the attempted murder Guideline). The attempted

murder Guideline sets a higher base offense level “if the object of the offense would have

constituted first degree murder” and a lower offense level if the object of the offense is not

first degree murder. U.S.S.G. § 2A2.1(a). A comment to the attempted murder Guideline

explains that “[f]irst degree murder means conduct that, if committed within the special

maritime and territorial jurisdiction of the United States, would constitute first degree

murder under 18 U.S.C. § 1111.” U.S.S.G. § 2A2.1 cmt. n.1. The federal first degree

murder statute defines murder as “the unlawful killing of a human being with malice

aforethought,” and “[a]ny other murder” as second degree murder. 18 U.S.C. § 1111(a).

5 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 6 of 12

We will refer to the USPO’s application of the attempted murder Guideline through

the firearms or ammunition cross-reference as the attempted murder cross-reference. The

USPO determined that the base offense level for attempted murder was 27. The USPO also

applied a four-level enhancement under the attempted murder Guideline because Gross

“sustained permanent or life-threatening bodily injury.” 2 J.A. 175;

U.S.S.G. § 2A2.2(b)(1)(A). In total, the attempted murder Guideline produced an offense

level of 31, which was higher than Ellis’s calculated base offense level for the firearms or

ammunition Guideline. Accordingly, the USPO used the attempted murder Guideline to

calculate Ellis’s offense level pursuant to the attempted murder cross-reference.

Ellis objected to the PSR on the ground that the attempted murder cross-reference

was inapplicable. Ellis claimed that he shot Gross accidentally, and therefore lacked the

requisite intent for attempted murder. The district court overruled this objection. At Ellis’s

sentencing hearing, the district court concluded that the attempted murder cross-reference

applied, regardless of whether the attempted murder definition was based on South

Carolina or federal law. The district court found Gross’s testimony to be “very credible,”

unlike Ellis’s testimony at his detention hearing, which the district court found to be full

of “self-serving statements.” J.A. 125–26. The district court also concluded that there was

sufficient evidence to support a finding that Ellis attempted to murder Gross. It based this

finding on the “surrounding circumstances,” “the history of the relationship” between Ellis

and Beatty, Ellis “essentially lying in wait” for someone to leave the apartment, and Ellis’s

“conscious[ ] rack[ing]” of a “round into the chamber and pointing” the gun at Gross.

J.A. 126. As the district court explained, “[i]t is reasonable to conclude that when a person

6 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 7 of 12

loads a live round into the firing chamber of a 9 millimeter pistol and points the pistol at

another human being at close range and pulls the trigger,” that person “intends to shoot and

intends to kill the person on the other end[ ] of the gun.” J.A. 126.

The district court did, however, sustain Ellis’s objection to the application of an

enhancement for permanent or life threatening bodily injury. It concluded that “the record

does not support a finding of permanent or life-threatening bodily injury,” but found “that

the two-level increase for [Gross] having sustained a serious bodily injury is more

appropriate.” J.A. 127. Accordingly, the district court calculated Ellis’s Guidelines range

as 78 to 97 months’ imprisonment and sentenced Ellis to 97 months’ imprisonment and

three years’ supervised release. Ellis timely appealed.

II. Analysis

A. Intoxication Defense

“In determining whether a district court properly applied the advisory Guidelines,

including application of any sentencing enhancements, we review the district court’s legal

conclusions de novo and its factual findings” under the clear error standard. United States

v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).

We begin by addressing the parties’ disagreement regarding the relevant standard

of review. Ellis contends that harmless error applies, while the Government contends that

we should review for plain error. According to Ellis, his intoxication prevented him from

forming the requisite mental state for attempted murder. Although this intoxication defense

was not specifically raised before the district court, Ellis maintains that this argument is

7 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 8 of 12

merely a “new twist” on an argument that he made before the district court challenging the

attempted murder cross-reference, and, therefore, it was properly preserved. Ellis Reply

Br. 2 (quoting United States v. Billups, 536 F.3d 574, 578 (7th Cir. 2008)). We disagree.

Ellis does not simply “offer[ ] a new twist”; he offers an altogether new argument. See

Billups, 536 F.3d at 578.

Because it was not preserved, we review Ellis’s claim under the plain error standard.

Under the plain error standard, Ellis “has the burden of showing: (1) that an error was

made, (2) that the error was plain, and (3) that the error affected his substantial rights.”

United States v. Green, 996 F.3d 176, 185 (4th Cir. 2021). If we find the district court erred,

our decision on whether to correct that error “is discretionary, and we will exercise that

discretion only if an error ‘would result in a miscarriage of justice or would otherwise

seriously affect the fairness, integrity or public reputation of judicial proceedings.’” Id.

(citation omitted); United States v. Olano, 507 U.S. 725, 732 (1993).

The district court ruled that, under either the state statute or federal statute, the

attempted murder cross-reference applies. Both state and federal defenses may be

considered in challenging the applicability of a Guideline to attempted murder that took

place in a state rather than one that took place “within the special maritime and territorial

jurisdiction of the United States.” 18 U.S.C. § 1111(b); see U.S.S.G. § 2A2.1 cmt. n.1. The

district court did not err in applying the attempted murder cross-reference because under

the state statute for attempted murder, Ellis would not have a viable voluntary intoxication

defense. We therefore need not address any claim of a federal intoxication defense.

8 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 9 of 12

At the time of sentencing, Ellis had been charged with attempted murder under

South Carolina law. Under South Carolina law, a “person who, with intent to kill, attempts

to kill another person with malice aforethought, either expressed or implied, commits the

offense of attempted murder.” S.C. Code § 16-3-29. Attempted murder is a specific intent

crime, requiring proof that the defendant had the specific intent to kill. E.g., State v. King,

810 S.E.2d 18, 22–23 (S.C. 2017). “[S]pecific intent means that the defendant consciously

intended the completion of acts comprising the [attempted] offense.” Id. (second alteration

in original) (quoting State v. Sutton, 532 S.E.2d 283, 285 (S.C. 2000)). Under South

Carolina law, voluntary intoxication, “where it has not produced permanent insanity, is

never an excuse for or a defense to crime, regardless of whether the intent involved be

general or specific.” State v. Vaughn, 232 S.E.2d 328, 330 (S.C. 1977). Ellis makes no

claim of “permanent insanity” nor was there evidence to suggest he was anything more

than temporarily inebriated at the time of the shooting. Thus, Ellis could not avail himself

of a voluntary intoxication defense, and the district court properly applied the attempted

murder cross-reference.

Although the district court did not specifically reference Ellis’s intoxication in its

analysis of the applicability of the attempted murder cross-reference, it did consider the

full context of the circumstances relating to the shooting, including Gross and Ellis’s

testimony about Ellis’s intoxication. The record before the district court establishes that

Ellis was intoxicated but does not show that Ellis was so intoxicated that he could not form

the requisite mental state to commit attempted murder, as required for an intoxication

defense. See United States v. Boyles, 57 F.3d 535, 541–42 (7th Cir. 1995). Indeed, the

9 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 10 of 12

district court reasonably concluded that, based on the record before it, there was “no

credible evidence of an accidental shooting.” J.A. 125. Rather, Ellis’s “conduct showed an

absolute disregard for human life.” J.A. 125.

We decline to find that the district court erred in failing to consider Ellis’s unraised

voluntary intoxication defense. On plain error review, Ellis has the burden to establish that

the district court erred in its application of the attempted murder cross-reference. It did not

err, and this ends our analysis.

B. Substantial Evidence

We next address Ellis’s contention that the district court’s application of the

attempted murder cross-reference was not supported by substantial evidence. According to

Ellis, Gross’s testimony did not provide sufficient support to establish an intent to kill,

especially because Ellis had been intoxicated. The Government must “prove by a

preponderance of the evidence that the sentencing enhancement should be applied.” United

States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013). These findings are reviewed under the

clear error standard. United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001). We afford

great deference to the district court’s credibility findings, which can “virtually never be

clear error.” See United States v. Lynn, 912 F.3d 212, 216 (4th Cir. 2019) (quoting United

States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012)).

While first degree murder “requires a showing of premeditation” and “malice

aforethought,” second degree murder requires only a showing of malice aforethought.

United States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003). The requisite showing of

malice aforethought for second degree murder can be established “from the whole facts

10 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 11 of 12

and circumstances of the killing.” Id. (citation omitted). The Government need not “show

an intent to kill or injure.” Id. “Rather, malice aforethought ‘may be established by

evidence of conduct which is ‘reckless and wanton and a gross deviation from a reasonable

standard of care, of such nature that a jury is warranted in inferring that defendant was

aware of a serious risk of death or serious bodily harm.’” Id. (citation omitted). To prove

attempted murder, the Government must show that the defendant both had “culpable intent

to commit the crime” and “took a substantial step towards completion of the crime that

strongly corroborate that intent.” United States v. Engle, 676 F.3d 405, 420 (4th Cir. 2012).

In support of application of the attempted murder cross-reference, the Government

presented evidence that Ellis specifically intended to kill Gross. Ellis testified that he shot

Gross accidentally; he did not know the gun was loaded; and he was drunk. The district

court was not compelled to credit this testimony, however. Rather than crediting Ellis, the

district court instead credited Gross’s testimony that Ellis pulled out a gun, cocked it back,

pointed it at him and fired from close proximity. It is not our role to second guess the

credibility determinations of the district court. The court’s findings suffice to support an

attempted murder cross-reference. “It is, after all, only natural to infer that when someone

shoots at another person, the shooter intends to kill.” State v. Williams, 876 S.E.2d 324,

327 (S.C. Ct. App. 2022); see United States v. Howell, 17 F.4th 673, 690 (6th Cir. 2021).

We have reviewed Ellis’s remaining contentions that the district court’s application

of the attempted murder cross-reference was not based on substantial evidence and are

unpersuaded. We conclude that the district court did not clearly err in finding Ellis

possessed the requisite intent to kill Gross.

11 USCA4 Appeal: 23-4625 Doc: 39 Filed: 03/11/2025 Pg: 12 of 12

III. Conclusion

The district court correctly applied the attempted murder cross-reference and the

district court’s factual findings were supported by substantial evidence. We therefore

affirm the judgment of the district court.

AFFIRMED