United States v. Smith

Opinion

Appellate Case: 23-1314 Document: 010111095793 Date Filed: 08/16/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 16, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-1314 (D.C. No. 1:22-CR-00248-CNS-1) ALEXANDER SMITH, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before EID, KELLY, and ROSSMAN, Circuit Judges. ** _________________________________

Defendant-Appellant Alexander Smith was charged with being a felon in

possession of a firearm and ammunition. 18 U.S.C. § 922(g)(1). He pled guilty and was

sentenced to 100 months’ imprisonment and three years’ supervised release. In

sentencing Mr. Smith, the district court applied a cross reference, U.S.S.G.

§§ 2K2.1(c)(1)(A), 2X1.1(c)(1), resulting in a base offense level of 27 for attempted

second-degree murder, id. § 2A2.1(a)(2). On appeal, Mr. Smith argues that the base

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 23-1314 Document: 010111095793 Date Filed: 08/16/2024 Page: 2

offense level should have been 20, id. § 2K2.1(a)(4), because he lacked the requisite

intent to commit murder, was acting in self-defense or imperfect self-defense, and was

not a mutual combatant. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), and we affirm.

Background

Mr. Smith was working at an auto shop when several men approached him and

threatened him, including a threat to kill him. Mr. Smith told them that he did not want

to fight at work. Mr. Smith and one of the men agreed that the fight would continue at a

park when Mr. Smith got off work and they shook hands. Thereafter, the men left the

store, and Mr. Smith followed them out, although his cousin tried to deter him by

physically restraining him. Seconds later, a gunfight between Mr. Smith and the men

occurred. Both Mr. Smith and his cousin sustained gunshot injuries. We discuss other

facts as pertinent below.

Discussion

We review sentences under an abuse of discretion standard. Gall v. United States,

552 U.S. 38, 51 (2007). Legal questions about application of the Sentencing Guidelines

are reviewed de novo, and factual challenges are reviewed for clear error, deferring to the

district court’s application of those guidelines to the facts. United States v. Jackson, 82

F.4th 943, 949 (10th Cir. 2023). Issues not raised below are reviewed for plain error. Id.

2 Appellate Case: 23-1314 Document: 010111095793 Date Filed: 08/16/2024 Page: 3

Mr. Smith objected to the cross-reference in the Presentence Report (PSR) on the

basis that he had no specific intent to kill anyone and that he acted in self-defense. I R.

19–20; III R. 13. Indeed, application of the cross-reference required a finding that Mr.

Smith had the specific intent to kill. United States v. Brooks, 67 F.4th 1244, 1249–50

(10th Cir. 2023). Self-defense requires a reasonable belief that one is in imminent danger

of death or great bodily harm, justifying an in-kind response, i.e. deadly force. United

States v. Toledo, 739 F.3d 562, 567 (10th Cir. 2014). Both self-defense and imperfect

self-defense require a subjective belief of imminent danger, but with imperfect self-

defense the belief of imminent danger is not objectively reasonable, resulting in lesser

criminal liability such as involuntary manslaughter. United States v. Britt, 79 F.4th 1280,

1286–87 (10th Cir. 2023). Finally, one who is an aggressor generally cannot rely upon

self-defense, imperfect or otherwise. See United States v. Rico, 3 F.4th 1236, 1237 (10th

Cir. 2021).

Mr. Smith maintains that he exited the building to ensure the group of men left the

building and were not harassing customers, rather than to follow them and confront them.

At sentencing, he stated that he was not trying to kill anyone. III R. 31. Unpersuaded,

the district court found as follows:

Although the [first] encounter had ended, Mr. Smith elected to pursue the suspects, restart the altercation, and ultimately and shortly thereafter fired his gun in the direction of the suspects. This was after, again, his cousin pled with him not to take the actions he was doing, and courts have inferred an intent to kill in similar situations. Importantly, it’s clear from the videos that at several times during the encounters Mr. Smith gestured to his weapon on his waistband.

3 Appellate Case: 23-1314 Document: 010111095793 Date Filed: 08/16/2024 Page: 4

Id. at 38–39. The district court was persuaded that Mr. Smith was the initial aggressor

and instigator of the second encounter and did not act in self-defense. It relied upon the

video evidence, including Mr. Smith’s demeanor, the short period of time between his

exit and firing ten rounds, and the inconsistent accounts he gave to investigating officers.

Id. at 37–39.

The district court’s findings are supported by the record. We have noted that

firing a gun at another can support an inference of an intent to kill. Brooks, 67 F.4th at

1251–52. Mr. Smith argues that (1) the suspects began the series of events and were

hostile, (2) the situation more properly is viewed as one encounter, and (3) the evidence

is at best inconclusive — for example, we don’t know what words were spoken when the

men departed and who fired the first shot.

We are not persuaded. Rarely is evidence all one way. The district court

permissibly discounted Mr. Smith’s claim that he was only trying to protect customers

when he exited the store, particularly in light of his cousin’s unsuccessful intervention.

Mr. Smith’s carrying a firearm at work (despite his status), his reaching for his gun at

least twice, and deploying it almost immediately after exiting the store support the

ultimate findings. Having determined that he was the aggressor in the second encounter,

the district court obviously rejected the notion that he had a subjective belief of imminent

danger, let alone an objective belief. For this reason, there was no error, plain or

otherwise, in rejecting an imperfect self-defense theory. Given our disposition, it is

unnecessary to consider the district court’s alternative holding that as a mutual

combatant, he could not rely upon self-defense. III R. 38.

4 Appellate Case: 23-1314 Document: 010111095793 Date Filed: 08/16/2024 Page: 5

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge