PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAVIS AARON BALL, a/k/a Wiz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:19-cr-00128-HEH-1)
Argued: September 24, 2021 Decided: November 18, 2021
Before NIEMEYER, AGEE, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee and Judge Quattlebaum joined.
ARGUED: Patricia A. Rene, LAW OFFICES OF PATRICIA PALMER NAGEL, PLC, Williamsburg, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Raj Parekh, Acting United States Attorney, Erik S. Siebert, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. NIEMEYER, Circuit Judge:
During an automobile stop in Richmond, Virginia, Travis Ball engaged in a struggle
with a Virginia law enforcement officer, during which he pulled out a gun and shot the
officer in the forehead at close range, killing him. Virginia prosecutors charged him with
capital murder, and pursuant to a plea agreement, he was sentenced to life imprisonment
with all but 36 years suspended.
Shortly after that state sentence was imposed and following community outrage over
the inadequacy of the sentence, federal prosecutors charged Ball with possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Ball
to the statutory maximum of 10 years’ imprisonment and, as a variance, required that the
10 years be served consecutive to the state sentence.
Ball contends on appeal that his federal indictment should have been dismissed
because that prosecution (1) violated the Double Jeopardy Clause of the Fifth Amendment;
(2) was unnecessarily delayed within the meaning of Federal Rule of Criminal Procedure
48(b), having been initiated more than two years after the shooting; and (3) constituted
vindictive prosecution under the Due Process Clause of the Fifth Amendment because the
federal prosecution and sentence were — in Ball’s view — intended to punish him for
negotiating a favorable deal with state prosecutors. He also challenges his federal sentence.
We affirm.
2 I
On May 26, 2017, Virginia State Police Special Agent Michael Walter and
Richmond Police Officer Christopher Duane investigated a car parked in the Mosby Court
public housing community in Richmond with two men sitting inside. Mosby Court was a
high-crime location that officers regularly patrolled. When the officers learned that the
two men were not residents of the community, they sought to determine whether they were
trespassers and asked them to step out of the vehicle. Ball refused to do so, and during the
ensuing struggle with Special Agent Walter, Ball pulled out a gun, “level[ed] [it] down” to
Special Agent Walter’s head, and shot him “directly in the center of his forehead” at close
range, killing him. It was later revealed during Ball’s federal sentencing hearing that, in a
text message from Ball to his girlfriend the day before the shooting, Ball reacted to
information from his brother that there was an outstanding warrant for his arrest in
Lancaster County, Virginia, for a felony probation violation. He texted, “Cause i dont have
time for the bullshit n plus my brother just told me I’m wanted in Lancaster county now
for a felony violation that shit is just too fucking much mane . . . I’m end up killing
something.” He also texted, “I’m just gone be on the run cause im not going back n i don’t
want to be there with all them fucking police every where I turn.” It was also revealed that
on the day of the shooting, Ball told his girlfriend twice, “If anybody get in my way . . .
I’m killing anybody!” It was later determined that the Lancaster County Circuit Court had
not in fact issued a warrant for Ball’s arrest.
The Richmond Commonwealth Attorney’s Office charged Ball in June 2017 in a
one-count indictment with capital murder, in violation of Virginia Code § 18.2-31(6)
3 (2010). Several months thereafter, the Commonwealth Attorney’s Office and Ball entered
into a plea agreement by which Ball agreed to enter an Alford plea — in accordance with
North Carolina v. Alford, 400 U.S. 25, 37 (1970) — to the single count of capital murder
and the parties would recommend to the court a life sentence, “all to be suspended
conditioned on the court’s imposition of an active sentence of not less than twenty (20)
years and not more than sixty (60) years.” The Commonwealth also agreed to “withdraw[]
its notice of intent to seek the death penalty.” Finally, the Commonwealth agreed that “Ball
will not be charged at a later date with any additional offenses which might have arisen out
of the incident which occurred on May 26, 2017.”
The Richmond Circuit Court sentenced Ball to life imprisonment without parole,
Ball asserts that following the Richmond Circuit Court’s imposition of the 36-year
sentence, there were “outcries of the community and law enforcement regarding their
feeling that the sentence was inadequate.” Indeed, the Assistant U.S. Attorney
acknowledged to the district court that he had heard that the Commonwealth Attorneys
“were very upset by [the sentence].” But he stated that they never contacted the U.S.
Attorney’s Office to suggest an additional federal prosecution, although doing so would
not have been inappropriate. The district court added, “That happens all the time.” The
Assistant U.S. Attorney explained that the decision to prosecute Ball was made solely by
a panel “of federal prosecutor supervisors” in furtherance of federal interests.
The U.S. Attorney’s Office sought and obtained an indictment against Ball in
September 2019, charging him with possession of a firearm by a felon, in violation of
4 18 U.S.C. § 922(g)(1), based on Ball’s possession of a firearm when he shot and killed
Special Agent Walter. The maximum statutory penalty for the violation as charged was 10
years’ imprisonment. The Assistant U.S. Attorney later explained to the district court that
the government’s prosecution was pursued because its interests were “not vindicated in the
state.”
Ball filed two motions to dismiss the indictment, arguing (1) that the indictment
violated his rights under the Fifth Amendment’s Double Jeopardy Clause; (2) that the
charge should be dismissed under Federal Rule of Criminal Procedure 48(b) for undue
delay, and (3) that the federal case against him constituted a vindictive prosecution, in
violation of the Fifth Amendment’s Due Process Clause, as it was only brought after the
state sentence was imposed and solely because the state sentence was perceived to be
inadequate.
Following a hearing on Ball’s motions, the district court denied them in a
Memorandum Opinion and Order dated February 6, 2020. The court explained that Ball’s
double jeopardy argument was foreclosed (1) by Gamble v. United States, 139 S. Ct. 1960,
1964 (2019), where the court affirmed that “a crime under one sovereign’s laws is not ‘the
same offence’ as a crime under the laws of another sovereign,” and (2) by the test
articulated in Blockburger, as both the Virginia crime of capital murder and a violation of
18 U.S.C. § 922(g)(1) “‘require[] proof of a fact [that] the other does not,’” (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932)). As to Ball’s argument that the
prosecution was unduly delayed for purposes of Rule 48, the court explained that “Rule
48(b) ‘clearly is limited to post-arrest situations,’” whereas Ball was relying “on alleged
5 delays that occurred prior to his indictment and arrest on the present federal charge.”
(Quoting United States v. Marion, 404 U.S. 307, 319 (1971)). Finally, as to Ball’s
vindictive prosecution claim, the court explained that Ball’s argument “again belies the
fact that two sovereigns may pursue separate prosecutions and vindicate their own
interests,” relying on United States v. Jackson, 327 F.3d 273, 294 (4th Cir. 2003), where
the court noted that no presumption of animus arises when federal prosecutors initiate a
case after concluding that an earlier state prosecution had not adequately vindicated federal
interests.
Following the district court’s denial of his motions to dismiss, Ball pleaded guilty
without a plea agreement to violating § 922(g)(1).
In the presentence report, the probation officer calculated the offense level for Ball’s
§ 922(g)(1) violation by cross-referencing to U.S.S.G. § 2A1.1 because first-degree murder
was involved and thus applying the base offense level of 43 that was provided for there.
See U.S.S.G. § 2K2.1(c)(1)(B). The probation officer also applied a 6-level enhancement
under U.S.S.G. § 3A1.2(b) on the ground that the “offense of conviction was motivated
by” the victim’s “status” as “a government officer.” After applying a 3-level reduction for
acceptance of responsibility, the probation officer treated the total offense level of 46 as a
level 43, the maximum level addressed by the Guidelines. With a criminal history category
of VI, the resulting Guidelines sentence was life imprisonment. That sentence, however,
was capped by the statutory maximum sentence of 120 months’ imprisonment. See
U.S.S.G. § 5G1.1(a).
6 Ball objected to the cross-reference to § 2A1.1 and the 6-level victim-related
enhancement under § 3A1.2(b). He also requested a downward variance sentence through
application of the factors identified in 18 U.S.C. § 3553(a). The district court overruled
Ball’s objections and sentenced him to 120 months’ imprisonment, to be served
consecutively to the undischarged portion of Ball’s state sentence for capital murder. While
the court recognized that it was not following the Guidelines recommendation of a
concurrent federal sentence, see U.S.S.G. § 5G1.3, it explained that such a sentence “would
be inadequate to serve the factors set forth” in § 3553(a). The court explained that it had
“carefully reviewed [the] defendant’s upbringing and family background, which
unfortunately involved extensive physical and sexual abuse, . . . poverty, substance abuse[,]
and instability,” and it had also “read the psychological report prepared by . . . [the] forensic
psychologist” who evaluated Ball prior to his state-court sentencing. It noted that while
Ball’s “upbringing [was] truly regrettable,” he had been “afforded the opportunity to
participate in rehabilitative programs on a number of occasions” and that “[n]one appeared
to have been successful in teaching him to interact with other human beings.”
From the district court’s judgment dated June 22, 2020, Ball filed this appeal.
II
Ball contends first that his state prosecution for murdering Special Agent Walter
and his subsequent federal prosecution for possession of the firearm used in the killing
violated his rights under the Fifth Amendment’s Double Jeopardy Clause. He argues that
the issue of whether he possessed a firearm after having been convicted of a felony was
7 “necessarily actually determined at the state prosecution, based upon a finding of guilty to
the capital murder charge.” He thus maintains that his second prosecution is not protected
either by the dual-sovereignty doctrine, recently confirmed in Gamble, or by the related
collateral-estoppel doctrine noted in Ashe v. Swenson, 397 U.S. 436 (1970).
The Double Jeopardy Clause provides that no person may be “twice put in jeopardy”
“for the same offence.” U.S. Const. amend. V (emphasis added). The jurisprudence
explaining what constitutes the “same offence” applies two distinct concepts. First, under
the dual-sovereignty doctrine, the Supreme Court has long held that an offense committed
under the laws of a State is not the same offense as an offense committed under the laws of
the United States, even if the two offenses result from the same conduct and consist of the
same elements. See Gamble, 139 S. Ct. at 1964 (“We have long held that a crime under
one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another
sovereign”). Rather, they are different offenses under the Double Jeopardy Clause because
their commission violates the laws of two distinct sovereigns — the State and the United
States. Accordingly, “a State may prosecute a defendant under state law even if the Federal
Government has prosecuted him for the same conduct under a federal statute,” and vice
versa. Id.
Second, the Court has explained that two offenses are not “the same offence” —
regardless of whether they arise under the laws of the same or different sovereigns — when
each of the offenses “requires proof of a fact which the other does not.” Blockburger,
284 U.S. at 304.
8 Notwithstanding these well-established principles, Ball argues that his federal
prosecution amounts to a prosecution for the “same offence” for which Virginia prosecuted
him. First, he maintains that the federal prosecution is not protected by the dual-
sovereignty doctrine, as it “is the result of the government’s quest to obtain additional
punishment for [him] through the federal courts because the Government is dissatisfied
with the outcome of [his] prosecution in the state court. As such, the Government is in
essence relitigating the punishment phase of the state prosecution.” This argument,
however, is fundamentally flawed because the Supreme Court’s formulation of the dual-
sovereignty doctrine contains no such motivation-based exception. See, e.g., Gamble,
139 S. Ct. at 1964; Heath v. Alabama, 474 U.S. 82, 92 (1985) (noting that, if prosecutions
are carried out by separate sovereigns, “the circumstances of the case are irrelevant”).
Moreover, Ball’s double jeopardy argument is foreclosed by Blockburger. The
Virginia murder statute under which he was convicted — Virginia Code § 18.2-31(6) —
punishes the “willful, deliberate, and premeditated killing of a law-enforcement officer,”
while the federal statute — 18 U.S.C. § 922(g)(1) — makes it unlawful for a convicted
felon, knowing his status as such, to knowingly possess a firearm that affected commerce.
Thus, the state murder violation requires proof of a killing, whereas the federal firearm
violation does not. Conversely, the federal firearm violation requires proof that the
defendant was a felon, while the state murder violation does not. Therefore, under the
Blockburger test, they are not the same offense.
In addition, Ball argues that the federal prosecution violates the collateral-estoppel
principle “embodied in” the Double Jeopardy Clause. Ashe, 397 U.S. at 445. He states
9 that he “was convicted of the capital murder of Walter by use of the same firearm that
[was] the subject of this [federal] indictment. In order to have committed the offense, [he]
would have had to possess the firearm. . . . Therefore, the issue of whether [he] possessed
a firearm after having been convicted of a felony was necessarily actually determined at
the state prosecution, based upon a finding of guilty to the capital murder charge.”
(Emphasis added). This argument, however, fails as well. Ashe characterizes collateral
estoppel as standing for the principle that “when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit.” 397 U.S. at 443. That formulation of collateral
estoppel, however, is inapposite to the instant case. The elements of Ball’s § 922(g)(1)
conviction — his felon status, possession of a firearm, and knowledge of both — were not
“issue[s] of ultimate fact” resolved in the state prosecution. Moreover, the state and federal
proceedings did not involve the same parties. Finally, Ball points to no precedent (and we
have found none) supporting the proposition that collateral estoppel can be used to
circumvent the dual-sovereignty doctrine.
In short, Ball’s federal prosecution did not violate his rights under the Double
Jeopardy Clause.
III
Ball also contends that because the federal government delayed indicting him for
over two years after he possessed the gun he used to kill Special Agent Walter, the district
court erred in failing to grant his motion to dismiss the indictment under Federal Rule of
10 Criminal Procedure 48(b). That rule provides that a court “may dismiss an indictment . . .
if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an
information against a defendant; or (3) bringing a defendant to trial.” Fed. R. Crim. P.
48(b).
Ball’s argument, however, fails to take account of the fact that Rule 48(b) is “limited
to post-arrest situations.” Marion, 404 U.S. at 319 (emphasis added). As such, the rule
does not regulate the time between Ball’s firearm possession and the government’s
obtaining custody of Ball. Yet, Ball seeks to apply Rule 48(b) to precisely that period of
time.
The federal government indicted Ball on September 17, 2019, before it had even
obtained custody of him pursuant to a writ of habeas corpus ad prosequendum, which was
issued to state officials on October 9, 2019. Pursuant to that writ, Ball was transferred to
the custody of the United States Marshals Service on November 6, 2019, and he made his
first appearance in federal court on that date. Ball offers no evidence or argument that
there was any post-arrest delay, much less “unnecessary delay.”
Apart from his Rule 48(b) argument, Ball contends that the district court should
have exercised its inherent powers to “dismiss [the] indictment for lack of prosecution,”
referring to the more than two-year delay between the shooting and the federal
government’s indictment. Such a dismissal, however, would require the district court to
use its supervisory power to “formulate procedural rules not specifically required by the
Constitution or the Congress,” United States v. Hasting, 461 U.S. 499, 505 (1983), a power
committed to the court’s “broad discretion,” United States v. Goodson, 204 F.3d 508,
11 514 (4th Cir. 2000). We are unable to find any basis to conclude that the court abused this
discretion in the circumstances presented. Indeed, in the ordinary course, the time between
when a crime is committed and when a defendant is indicted for that crime is regulated by
statutes of limitations, not discretionary judicial power. See United States v. Lovasco,
431 U.S. 783, 789 (1977).
IV
Ball’s final argument with respect to his conviction is that the district court erred in
failing to dismiss his indictment on the ground that the federal government’s prosecution
of him was vindictive, in violation of the Fifth Amendment’s Due Process Clause. He
claims that the federal prosecution was launched against him in response to community
outcry over the perceived inadequacy of his state sentence and the federal government’s
corresponding desire to punish him for obtaining that sentence. As he argues:
[T]he Government exacted a toll upon Ball for successfully negotiating a plea agreement in a different sovereign, which had nothing to do with the Government. . . . Apparently, law enforcement and the community believed that the sentence[] imposed upon Ball was insufficient and too lenient. The Government acknowledged as much at the sentencing hearing.
[Also,] [t]he Government did not initiate prosecution before the state prosecution even though it could have done so. Rather, the Government waited until after the state made its determination regarding punishment, then, apparently acting upon community sentiment, decided to exact additional punishment from Ball.
To be sure, vindictive prosecution has no place in our system of justice. “[E]xacting
a price for a defendant’s exercise of a clearly established right or . . . punishing the
defendant for doing what the law plainly entitles him to do” violates the Due Process Clause
12 of the Fifth Amendment. United States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001)
(emphasis added) (citing United States v. Goodwin, 457 U.S. 368, 372 (1982)). But
vindictive prosecution must not be confused with the government’s broad discretion to
prosecute violations of its law, the exercise of which is “presumptively lawful.” Id. at 315
(citing United States v. Armstrong, 517 U.S. 456, 464 (1996)). Context informs the
distinction between these two concepts.
When a prosecutor makes an initial charging decision, that decision is presumed to
be a “legitimate response to perceived criminal conduct.” Goodwin, 457 U.S. at 373;
Armstrong, 517 U.S. at 464 (noting that a “presumption of regularity supports” federal
prosecutors’ charging decisions and that “in the absence of clear evidence to the contrary,
courts presume that [federal prosecutors] have properly discharged their official duties”
(cleaned up)); see also Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978) (highlighting the
“broad” discretion vested in prosecuting attorneys). Accordingly, to establish prosecutorial
vindictiveness, the defendant must “carry the heavy burden of proving that [his]
prosecution ‘could not be justified as a proper exercise of prosecutorial discretion.’”
Wilson, 262 F.3d at 316 (quoting Goodwin, 457 U.S. at 380 n.12). Specifically, he must
show that “(1) the prosecutor acted with genuine animus toward the defendant and (2) the
defendant would not have been prosecuted but for that animus.” Id. at 314 (citing Goodwin,
457 U.S. at 380 n.12 (noting that to establish vindictive prosecution, the defendant must
show that the charges were brought “solely to ‘penalize’ the defendant and could not be
justified as a proper exercise of prosecutorial discretion”)). And if a defendant cannot show
vindictiveness through direct evidence, he still may “present evidence of circumstances
13 from which an improper vindictive motive may be presumed.” Id. Such evidence,
however, “must show that the circumstances pose a realistic likelihood of vindictiveness,”
id. (cleaned up), and that the “circumstances warrant it for all cases of the type presented,”
id. at 315.
On the other hand, when a prosecutor seeks more severe penalties on retrials
obtained by a defendant, the prosecutor’s decision is presumed to be vindictive, on the
theory that it is more likely to be an impermissible response to the defendant’s obtaining a
new trial — as is his legal right — as distinct from a legitimate response to criminal
conduct. See Blackledge v. Perry, 417 U.S. 21, 28–29 (1974) (holding that it was not
constitutional for a prosecutor “to respond to [a defendant’s] invocation of his statutory
right to appeal by bringing a more serious charge against him”); Goodwin, 457 U.S. at 376
(“The Court emphasized in Blackledge that it did not matter that no evidence was present
that the prosecutor had acted in bad faith or with malice in seeking the felony indictment.
[Rather], the Court held that the likelihood of vindictiveness justified a presumption that
would free defendants of apprehension of such a retaliatory motivation on the part of the
prosecutor”).
In the context where a defendant is prosecuted by two distinct sovereigns in relation
to the same incident — such as when a federal prosecutor initiates a criminal prosecution
after a state prosecution — each prosecution is the result of a distinct sovereign’s initial
charging decision. And because the federal prosecution is not a retrial, but rather the
federal government’s first and only action to redress a perceived violation of federal
14 criminal law, it is, under the principles noted above, entitled to the presumption of
legitimacy.
In this case, Ball seeks to show vindictive prosecution in precisely this distinct-
sovereign context. And to do so, he points only to (1) the timing of the federal prosecution,
which was initiated after completion of his state prosecution, and (2) the community outcry
over what was perceived as an inadequate state sentence. Neither fact nor both facts
combined, however, satisfy his burden. Indeed, both are consistent with a proper exercise
of prosecutorial discretion based on the federal prosecutor’s conclusion that the state
prosecution inadequately vindicated federal interests.
In United States v. Jackson, 327 F.3d 273 (4th Cir. 2003), we faced circumstances
similar to those here. In Jackson, the defendant confessed to state law enforcement officers
to the murder of a recent college graduate who was hiking in the Pisgah National Forest,
and the State charged and convicted the defendant for first-degree murder, imposing the
death penalty. Id. at 279–80. After the defendant was able to suppress his confession on
appeal, he negotiated with the state prosecutors a guilty plea to second-degree murder, for
which he received a sentence of over 31 years’ imprisonment. Id. at 280–81. After that
sentence was imposed, federal prosecutors charged the defendant with using a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(j)(1), and
sought the death penalty. Id. at 281. The federal jury convicted the defendant, and the
death penalty was imposed. Id. On appeal, the defendant contended, among other things,
that his federal prosecution was vindictive, pointing mainly to the delay of the federal
government’s decision to prosecute him and its failure to follow its own Petite policy, id.
15 at 294–95, a set of internal guidelines intended to inform “whether to bring a federal
prosecution based on substantially the same act(s) or transactions involved in a prior state
or federal proceeding,” Justice Manual § 9–2.031, Dual and Successive Prosecution Policy
(“Petite policy”). We rejected the defendant’s argument, reasoning that the federal
government’s delay was appropriately based on (1) “its decision to defer to State authorities
and to see whether federal interests would be vindicated” and (2) its subsequent
determination that federal interests had not in fact been vindicated by the state proceedings.
Jackson, 327 F.3d at 294.
The case before us is hardly distinct. The federal government has articulated valid
federal interests in prosecuting Ball for his violation of federal law, pointing to its
prioritization of felon-in-possession cases, as well as the serious nature of Ball’s conduct
in murdering a law-enforcement officer. As the government articulates its interests:
As a convicted felon with a significant criminal record, including his repeated violent assaults, Ball is precisely the type of defendant that the United States Attorney’s Office in Richmond has long sought to prosecute for illegally possessing firearms. Such firearm prosecutions have also remained a top priority for the current United States Attorney for the Eastern District of Virginia and the Department of Justice as a whole.
Most importantly, the United States has a clear federal interest in prosecuting Ball based on [the] seriousness of his conduct, which included the use of his illegally possessed firearm to murder Special Agent Walter. Defendants who are willing to murder police officers demonstrate a heightened threat to civil society. Such defendants proclaim themselves above the law in every sense possible. Ball’s brazen and violent attack on a law enforcement officer justifies the Department of Justice’s discretion to prosecute him and vindicate significant federal interests.
Because Ball failed to present evidence sufficient to rebut the presumption that his
federal prosecution was legitimate, we reject his claim that the prosecution was vindictive.
16 V
Ball also mounts several challenges to his sentence. We find that none, however,
merits extensive discussion, and we dispose of each as follows.
A
First, Ball contends that the district court erred in calculating the Guidelines range
for his gun-possession offense by cross-referencing to U.S.S.G. § 2A1.1, which imposes
an offense level of 43 for first-degree murder, i.e., premeditated killing. See U.S.S.G.
§ 2A1.1 cmt. n.1 (“This guideline applies in cases of premeditated killing”). He argues as
a factual matter that the cross-reference should instead have been to manslaughter under
either § 2A1.3 or § 2A1.4 because he killed Special Agent Walter in the “heat of passion”
as he was resisting arrest.
The district court concluded otherwise, finding that the first-degree murder cross-
reference to § 2A1.1 was justified. It relied on, among other things, (1) Ball’s Alford plea
in state court to the “willful, deliberate, and premeditated killing of a law enforcement
officer”; (2) his communications with his girlfriend on the day before and the day of his
shooting of Special Agent Walter; and (3) his conduct in shooting Special Agent Walter
“point-blank” in the center of the forehead.
We conclude that these facts allowed the court to make the finding that the killing
was premeditated, as premeditation exists when a person has a “fully formed conscious
purpose to kill,” even for “a moment.” United States v. Tillery, 823 F. App’x 157, 161 (4th
Cir. 2020) (per curiam) (unpublished) (cleaned up). In other words, the mental state
17 required for premeditation “must exist only for such time as will allow the accused to be
conscious of the nature of the act he [was] about to commit and the probable result of that
act.” Id. (cleaned up). Accordingly, the district court did not clearly err in finding
premeditation and therefore applying the first-degree murder cross-reference.
B
Ball also contends that the district court clearly erred in applying a 6-level
enhancement under U.S.S.G. § 3A1.2. Under that provision, a 6-level enhancement can
be triggered through two subsections relevant here — § 3A1.2(b) and § 3A1.2(c)(1).
Section 3A1.2(b) applies if (1) the defendant’s victim was a government officer; (2) “the
offense of conviction was motivated by such status”; and (3) the applicable Chapter Two
guideline is for an offense against the person, including homicide. U.S.S.G. § 3A1.2(b).
And § 3A1.2(c)(1) applies if the defendant “in a manner creating a substantial risk of
serious bodily injury . . . [and] knowing or having reasonable cause to believe that a person
was a law enforcement officer, assaulted such officer during the course of the offense.”
U.S.S.G. § 3A1.2(c)(1). The district court found that both provisions were satisfied,
relying on (1) Ball’s acknowledgment during his state plea hearing that he had reason to
believe that Special Agent Walter was a law enforcement officer; (2) Ball’s Alford plea for
violation of Virginia Code § 18.2-31(6), which included the premeditated killing of Special
Agent Walter “for the purpose of interfering with the performance of his official duties”;
(3) the bodycam video of Ball’s arrest showing that Walter identified himself to Ball; and
18 (4) Ball’s communications with his girlfriend, which the court characterized as expressing
his intent to “kill any police officer attempting to take him into custody.”
We conclude that the district court did not clearly err in applying the 6-level
enhancement. Moreover, because Ball challenges only the district court’s 6-level
enhancement under U.S.S.G. § 3A1.2(b) — not its alternative reliance on § 3A1.2(c)(1),
which also justifies the enhancement — he forfeits any challenge to the district court’s
reliance on § 3A1.2(c)(1), rendering any error under § 3A1.2(b) harmless. See United
States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (stating this Court has “a well
settled rule that contentions not raised in the argument section of the opening brief are
abandoned”) (citing Edwards v. City of Goldsboro, 178 F.3d 232, 241 n.6 (4th Cir. 1999)).
C
Finally, Ball argues that the 10-year sentence was longer than what he would have
received for an analogous state offense and therefore was substantively unreasonable.
Specifically, he argues that had he been
convicted of the same offense in state court, the penalty would [have] amount[ed] to a two or three year sentence. Merely[] because the case was prosecuted in federal court does not change the nature of the charge, that Ball possessed a firearm after having been convicted of a felony. Therefore, a sentence of ten years, rather than three, constitutes a sentence longer than necessary to achieve the goals of 18 U.S.C. § 3553, in violation of Ball’s right to due process.
We review the substantive reasonableness of district court sentencing decisions “for
abuse of discretion only.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014)
(citing Gall v. United States, 552 U.S. 38, 49–51 (2007)). And under this deferential
19 standard, the mere fact that we “might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.
Ball fails to establish that his sentence was substantively unreasonable. Specifically,
his references to state law are unavailing. After all, federal courts are to impose sentences
under federal law — not state law — and the federal standard requires that they be
“sufficient, but not greater than necessary, to comply with the purposes [of the federal
sentencing regime].” 18 U.S.C. § 3553(a). While it is true that 18 U.S.C. § 3553(a)(6)
speaks of “the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct,” sentence disparities
between state and federal defendants are not the disparities that § 3553(a)(6) aims to
address. See United States v. Clark, 434 F.3d 684, 687 (4th Cir. 2006) (“[T]he sole concern
of § 3553(a)(6) is with sentencing disparities among federal defendants” (emphasis
altered)).
Accordingly, we reject Ball’s challenges to the federal sentence imposed by the
district court.
* * *
For the reasons given, we affirm the judgment of the district court.
AFFIRMED