August 30, 2012 4th Circuit published opinion

United States v Horton

Horton was convicted of being a felon in possession of a firearm and sentenced to life in prison. The panel, with one judge concurring in part and in result, affirmed the conviction, vacated the sentence and remanded for resentencing. The majority held that, even assuming the trial court failed to grant a motion for a new attorney, any error was harmless as appointed counsel field pretrial motions, effectively cross examined witnesses and obtained a hung jury in the first trial. The majority rejected a claim that the state failed to produce a report which contained evidence the interviewing officers treated Horton as a murder suspect holding the officers didn’t pursue any questions about a homicide, the defense obtained a court order to keep the homicide investigation out of evidence and significant evidence was introduced which independently supported the conviction. As to the sentence, the majority held the sentencing court did not clearly err in finding Horton had committed murder in a separate incident after the firearms violation. However, the majority held the application of the sentencing guidelines murder cross reference was reversible error as the relevant cross reference subsection requires both the conviction offense and the relevant conduct be groupable under the terms of the guideline. As murder is excluded form grouping, the sentencing court erred in applying the murder cross reference. The concurrence argued that the evaluation of the murder finding was improper dicta as the parties would remain free on remand to submit evidence. It also argued that the Sentencing Commission made the policy decision to not allow additional punishment for murder unless a jury has convicted the defendant and that the majority approach effectively allows an end un around that policy.

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