Sentencing; Double jeopardy; Imposition of more than one punishment for violations of two or more subdivisions of 18 USC § 922(g) based on a single firearm possession; United States v Modena (Unpub 6th Cir); Procedural reasonableness; Application of the cross-reference for attempted murder (USSG § 2A2.1(a)(2)) in calculating defendant’s base offense level

For the first time in a published opinion in this circuit, the court held that it violates double jeopardy principles to impose more than one punishment for violations of two or more subdivisions of § 922(g) based on a single firearm possession. It also held that the district court did not clearly err by finding that defendant-Grant acted with specific intent to commit murder when he shot his girlfriend, and correctly applied the § 2A2.1(a)(2) cross-reference for attempted second-degree murder in calculating his offense level. Grant shot his girlfriend (B), fled the scene, and was apprehended while in possession of a gun. He pled guilty to two counts of § 922(g) for being a convicted felon unlawfully possessing a firearm and for being a domestic violence misdemeanant. Although it had reached this conclusion in an unpublished opinion (Modena), the court now held for the first time in a published opinion (joining the other circuits that have addressed the issue) that "§ 922(g) does not permit multiple punishments based on the statute’s different subdivisions for a single incident of firearm possession.” It noted that it made no difference that the two sentences were to run concurrently, and determined that a “limited remand” was appropriate for the district court to vacate Grant’s sentence on one of the § 922(g) counts and to merge the two counts of conviction. But the court otherwise affirmed, rejecting his argument that his sentence was procedurally unreasonable where the district court concluded that he intended to commit second-degree murder and then applied the cross-reference for attempted murder when calculating his USSG base offense level. To prove attempted murder in the second degree, the government had to show that the “defendant acted with a ‘specific intent to kill’” when he shot B. The government showed that Grant had threatened to shoot her earlier in the evening, and that he later aimed the gun in B's "direction and fired. This fact alone supports a finding of specific intent[.]”