No. 23-1260 ___________________________

United States of America

Plaintiff - Appellee

v.

Timothy Eugene Angel

Defendant - Appellant ____________

Appeal from United States District Court for the Southern District of Iowa - Eastern ____________

Submitted: October 16, 2023 Filed: February 22, 2024 ____________ Before BENTON, SHEPHERD, and KELLY, Circuit Judges. ____________ KELLY, Circuit Judge.

Timothy Eugene Angel pleaded guilty to possessing ammunition after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court 1 sentenced him to ninety-six months of incarceration and three

1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court for the Southern District of Iowa. years of supervised release. Angel appeals his sentence, arguing the district court erred in determining his offense level by applying the attempted murder cross- reference from the United States Sentencing Guidelines (USSG). We affirm.

I.

In the early morning of January 29, 2022, Angel, Leonard Fisher, and Tityana Woodland were at a club in Davenport, Iowa. While inside the club, Angel and Woodland got into an altercation and Woodland “pulled out a gun.” Woodland and Fisher were then escorted outside by security. Angel walked out after them, crossed the street to his car, and then crossed back. Angel shot at Fisher, and Fisher returned fire. Angel fired five shots at Woodland and Fisher, hitting Fisher in the leg.

Angel was charged with, and pleaded guilty to, one count of possessing ammunition after having been convicted of a felony. On the basis that Angel used a firearm in connection with the offense of attempted murder when he fired shots outside the club, the Presentence Investigation Report (PSR) calculated his base offense level as 33 by applying the cross-reference under USSG § 2K2.1(c)(1)(A) (2021). Under that Guideline provision,

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, . . . apply . . . § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined [under § 2K2.1]. USSG § 2K2.1(c)(1)(A). Section 2X1.1, in turn, provides that “[w]hen an attempt . . . is expressly covered by another offense guideline section, apply that guideline section.” USSG § 2X1.1(c)(1). The guideline section applicable to attempted murder is § 2A2.1, which provides that the base offense level is “33, if the object of the offense would have constituted first degree murder.” USSG § 2A2.1(a)(1). Because Angel’s PSR applied § 2K2.1(c)(1)(A) and cross-referenced to §§ 2X1.1(c) and

-2- 2A2.1 (the Guideline for attempted first degree murder), his offense level was higher than it would have been without the cross-reference.

Angel objected. At sentencing, the government presented evidence in support of the cross-reference, including a surveillance video from a business near the club that captured Angel cross the street from the club to his car, cross back, and exchange fire with Fisher.

Relying on the evidence presented at sentencing and at Fisher’s trial, 2 the district court found the following facts by a preponderance of the evidence: after the dispute inside the club, Angel opted to follow Woodland out of t