United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE
matter is before the court on the sentencing of Christopher
Sean Brown (“Brown”). In this sentencing, there
is a dispute over whether the offense conduct satisfies the
cross-reference for attempted first-degree murder under
U.S.S.G. § 2A2.1(a)(2). The court finds that it does.
was indicted with a host of federal offenses relating to
their alleged involvement with a Walterboro, South Carolina
based criminal organization known as the
“Cowboys.” The Cowboys are described as a
neighborhood gang which encourages members to engage in
criminal activity to increase their status within the gang,
and demands lifetime allegiance, disciplining disloyal
members with threats, violence, and even death. The
indictment also mentions a separate, but allied, gang known
as the “Wildboyz” who allegedly share common
interests with the Cowboys and act in conjunction with the
Cowboys to commit crimes to increase the status of members of
both gangs. The Cowboys and Wildboyz are each alleged to have
engaged in violence, threats of violence, drive-by shootings,
home invasion robberies for the purposes of obtaining
narcotics and cash, and narcotics distribution.
pleaded guilty to conspiracy to conduct racketeering. A
presentence investigation report (“PSR”) was
prepared in this case. Both Brown and the government
submitted objections to the PSR. The parties also submitted
sentencing memoranda. Because this sentencing presents
complex issues of law and fact, the court issues this written
order to detail the particularized findings that contributed
to the court's calculations. It does not modify the
sentence or its foundation.
has entered a guilty plea to attempted murder in aid of
racketeering, in violation of 18 U.S.C. § 1959(a)(5).
Brown admitted to participating in a drive-by shooting on May
30, 2013 at the residence of 62 Jared Road, Walterboro, South
Carolina, a residence in the Dooley Hill area, where
suspected members of the rival Dooley Hill gang lived.
Cowboyz members and codefendant Clyde Naquan Hampton
(“Hampton”) drove the car as Brown and Cowboyz
member and codefendant Mathew Rashaun Jones
(“Jones”) fired multiple shots at the residence.
There is a dispute over whether the offense conduct satisfies
the cross-reference for attempted first-degree murder under
U.S.S.G. § 2A2.1(a)(2). The court finds that it does.
18 U.S.C. § 1111(a), to convict a defendant of
first-degree premeditated murder the government must prove
that defendant “in some sort associate[d] himself with
the venture, that he participate[d] in it as in something
that he wishe[d] to bring about, that he [sought] by his
action to make it succeed.” United States v.
Horton, 921 F.2d 540, 543 (1990) (internal quotation
marks omitted). Here, Brown was a passenger in a vehicle
driven by Hampton on May 30, 2013 when Hampton drove the
vehicle past 62 Jared Road, Walterboro, South Carolina where
suspected members of a rival gang lived. As Hampton drove
past the home, Brown fired multiple shots into the residence.
Certainly, these actions indicate that Brown planned with his
fellow Cowboys gang members to kill someone, namely the rival
gang members who lived at 62 Jared Road. Under 18 U.S.C.
§ 1111(a), first-degree murder is defined as the
unlawful killing of a human being with “malice
aforethought, ” which included every murder that is a
“willful, deliberate, malicious, and premeditated
United States v. Diaz, 176 F.3d 52 (2d Cir. 1999),
the court held that a cross-reference to first-degree murder
was appropriate where other members of defendant's gang
planned to shoot at one person but other, innocent bystanders
were killed while gang members were shooting up a street.
Here, Brown planned to kill rival gang members at 62 Jared
Road. Indeed, even if Brown had not actually shot out of the
car, the cross-reference for attempted first-degree murder
would likely still apply. In Puckett v. Costello,
111 Fed.Appx. 379 (6th Cir. 2004), the court held that a
defendant who was not the actual shooter in a drive-by
shooting demonstrated requisite “premeditated and
deliberate intent to kill” sufficient to affirm a
conviction of first-degree murder under Michigan law. While
Puckett was not interpreting first-degree murder
under 18 U.S.C.A. § 1111(a) but rather under Michigan
law, Michigan law defines first-degree murder in a similar
manner, as when a defendant has a “premeditated and
deliberate intent to kill.” In Puckett, the
defendant was a member of the Insane Gangster Mafia. At some
point on the evening of November 9, 1995, the defendant began
discussing a rival gang, the Cash Flow Posse, and the
possibility of a drive-by shooting with a group of his fellow
gang members. The members of the Insane Gangster Mafia then
planned to direct a drive-by shooting at the home of a
suspected Cash Flow Posse member. During the course of the
drive-by shooting, where defendant was sitting in the car, a
bystander was shot and killed. The Puckett court
affirmed the first-degree murder conviction, finding that
defendant's intent to kill rival gang members was
sufficient to conclude that at least one gang member in the
car at the time possessed the requisite intent to kill. The
Puckett court reasoned that these actions were more
in line with an intent to shoot at particular people as
opposed to recklessly shooting at the apartment building.
Similarly, Brown and other members of the Cowboyz gang had
the intent to shoot members of the rival gang, which is why
they targeted the home at 62 Jared Road. This was a shooting
directed at one or more persons, as opposed to a shooting
aimed at a building.
foregoing reasons, the court finds that the cross-reference
for attempted first-degree murder is appropriate.
foregoing reasons, the court applies the first-degree
attempted murder cross-reference. The court imposes a
sentence of 108 months.