Denial of Mens Rea Can Lead to Loss of Acceptance

US v. Burns: Burns got in a beef with Poole at a convenience store.  The next day, according to Burns's fiance, he wanted "to kill" Poole for "jumping him at the store."  Burns (and his fiance) was in a parked car later that day when he saw Poole (and others) in another car.  According to the fiance, Burns got out, confronted Poole, returned to the car and got his gun, telling her "I'm going to shoot him."  She also testified that Burns either said "I'm going to shoot that motherfucker" or said to Poole, "motherfucker, I'm going to kill you."  After one of Poole's passengers got out of the car, Burns shot once into the car (no one was hurt).  Poole sped away, initially pursued by Burns, who later broke off the chase.

Burns pleaded guilty to being a felon in possession of a firearm.  The PSR recommended that his Guideline range be calculated based on a cross reference to murder Guideline.  With a reduction for acceptance of responsibility, his Guideline range was 92-115 months.  Burns objected to those calculations.  Although he admitted possessing the gun and firing it in the car, he denied having the mens rea needed to support an (attempted) murder cross reference, as opposed to aggravated assault.  The district court not only overruled that objection and applied the murder cross reference, but concluded that Burns had falsely denied relevant conduct and did not award a reduction for acceptance of responsibility.  As a result, Burns's Guideline range was 120 months - the statutory maximum.  That was the sentence he received.

On appeal, the Fourth Circuit affirmed Burns's sentence.  The court styled the issue by asking "is acting with a particular mental state relevant conduct within the meaning of USSG 1B1.3(a)(1)(A)?"  The court concluded that it was, rejecting Burns's argument to restrict relevant conduct to only physical actions.  That reading was inconsistent with earlier Fourth Circuit law approving of cross references for attempt (which is all about mens rea) based on "acts or omissions" of the defendant.  Thus, "when Burns denied his 'acts and omissions' including shooting with intent to kill, he denied relevant conduct attributable to him."