Application of Homicide Cross-Reference in Felon-in-Possession Sentencing under U.S.S.G. §2K2.1(c)(1)(B)

Introduction

United States v. McDowell, 5th Cir. No. 24-10292 (May 12, 2025), presents a significant development in the application of the Sentencing Guidelines to felon-in-possession convictions when the weapons at issue are also tied to a homicide. In this case, the defendant, Reginald McDowell, sold two firearms to an ATF confidential informant—one of which was later ballistically tied to the murder of Lawrence Holloway. The Fifth Circuit’s per curiam opinion affirms the district court’s application of the homicide cross-reference in U.S.S.G. §2K2.1(c)(1)(B) and confirms that any Sixth Amendment and guideline-calculation challenges were harmless where the district court explicitly would have imposed the same statutory maximum sentence under 18 U.S.C. §3553(a) factors.

Case Background and Key Issues

Parties:
- Plaintiff–Appellee: United States of America (federal prosecutor)
- Defendant–Appellant: Reginald McDowell, a convicted felon
Procedural History: McDowell pleaded guilty to possession of a firearm by a convicted felon (18 U.S.C. §922(g)(1)). The probation office applied a Sentencing Guidelines cross-reference to second-degree murder (U.S.S.G. §2A1.2) because two of the guns he sold were ballistically tied to Holloway’s murder.
Key Legal Issues:
1. Whether the district court properly applied the homicide cross-reference in U.S.S.G. §2K2.1(c)(1)(B).
2. Whether application of that cross-reference violated McDowell’s Sixth Amendment right to have a jury find facts increasing his Guideline range.
3. Whether any procedural or constitutional errors were harmless.

Summary of the Judgment

The Fifth Circuit affirmed the district court’s sentencing decision. It held:

The district court correctly applied the homicide cross-reference provision in U.S.S.G. §2K2.1(c)(1)(B) when it found by a preponderance of the evidence that McDowell’s possession of the Canik pistol was tied to a death resulting from another offense.
Any Sixth Amendment challenge to that application was harmless error because the court imposed the statutory maximum (180 months) under 18 U.S.C. §3553(a) regardless of the Guidelines calculation.
Similarly, any Guidelines-calculation error was harmless for the same reason: the district court explicitly would have imposed the same sentence on substantive §3553(a) grounds.

Analysis

1. Precedents Cited

U.S.S.G. §2K2.1(c)(1)(B): Directs cross-reference to the most analogous homicide guideline when a firearm is possessed in connection with another offense resulting in death.
United States v. Cantu, No. 22-40512 (5th Cir. July 6, 2023): Holds that challenges to enhancements not relied upon by the sentencing court can be non-justiciable.
United States v. Mathews, 294 F. App'x 114 (5th Cir. 2008): Explains non-justiciability where enhancements have no effect on the final Guideline calculation.
United States v. Lopez, 70 F.4th 325 (5th Cir. 2023): Affirms that a sentence at the statutory maximum cannot be increased based on judge-found facts and thus avoids any Sixth Amendment violation.
United States v. Sanchez, 850 F.3d 767 (5th Cir. 2017): Clarifies harmless-error review for Guidelines miscalculations when the court states it would have imposed the same sentence.
United States v. Njoku, 737 F.3d 55 (5th Cir. 2013): Echoes Sanchez regarding harmless-error doctrine in sentencing.
Washington v. Recuenco, 548 U.S. 212 (2006): Holds that Sixth Amendment errors in fact-finding may be harmless if they do not affect the defendant’s substantial rights.
United States v. Butler, 122 F.4th 584 (5th Cir. 2024): Applies harmless-error principles to constitutional sentencing challenges.

2. Legal Reasoning

• Cross-Reference Application: Under U.S.S.G. §2K2.1(c)(1)(B), when a defendant “used or possessed any firearm... in connection with another offense” that resulted in death, the Guidelines require application of “the most analogous offense guideline” from the homicide chapters (here, §2A1.2 for second-degree murder) if it yields a higher offense level. The probation officer’s addendum established by a preponderance of the evidence—surveillance video, ballistics tests, witness statements, and McDowell’s own admissions—that both firearms sold were tied to Holloway’s murder.

• Statutory Maximum Cap: Although the homicide guideline produced an advisory range of 262–327 months, 18 U.S.C. §924(a)(8) capped McDowell’s sentence at the 180-month statutory maximum. U.S.S.G. §5G1.1(a) automatically converted the advisory range accordingly.

• Harmless-Error Doctrine: Federal Rule of Criminal Procedure 52 provides that any error not affecting substantial rights must be disregarded. The district court explicitly stated four times that, even absent application of the homicide cross-reference, it would have imposed the 180-month term based on the factors set out in 18 U.S.C. §3553(a)—including the seriousness of the offense, McDowell’s criminal history, and the need for just punishment.

• Sixth Amendment Considerations: The Fifth Circuit confirmed that McDowell’s Sixth Amendment rights were not impaired by judge-found facts because his ultimate sentence did not exceed the statutory maximum set by Congress.

3. Impact on Future Cases

Reinforces broad application of U.S.S.G. §2K2.1(c)(1)(B) when any firearm in a felon-in-possession case is connected to another violent offense ending in death.
Illustrates how district courts can insulate sentencing decisions from appellate reversal by expressly stating they would impose the same statutory maximum sentence on §3553(a) grounds.
Affirms that statutory maximum sentences create safe harbors against Sixth Amendment jury-trial challenges where judge-found facts do not increase the sentence beyond the cap.
Guides sentencing practitioners on layering homicide findings into felon-in-possession cases without risking reversal if the court documents its §3553(a) rationale clearly.

Complex Concepts Simplified

Sentencing Guidelines Cross-Reference: A rule requiring that if a defendant’s firearm possession is tied to a more serious crime (e.g., homicide), the Guidelines shift the offense level calculation to that more serious crime’s guideline if it yields a harsher recommended sentence.
Statutory Maximum vs. Advisory Guideline Range: The statutory maximum is the highest sentence a judge can impose by law. If the advisory Guidelines range exceeds that maximum, the judge must cap the sentence at the statutory maximum.
Harmless-Error Review: A legal principle that declines to overturn a decision if an error did not change the outcome or prejudiced the defendant’s substantial rights.
Sixth Amendment Jury-Trial Right: Guarantees that any fact (other than prior convictions) used to increase a defendant’s sentence beyond the statutory maximum must be found by a jury beyond a reasonable doubt.

Conclusion

United States v. McDowell cements an important sentencing doctrine: when a felon-in-possession defendant’s weapons are tied to a homicide, the homicide guidelines may govern, and any guideline-calculation errors are harmless if the court clearly states it would impose the same statutory maximum sentence under §3553(a). The decision clarifies the interplay between cross-references in the federal Sentencing Guidelines, statutory maximum caps, and Sixth Amendment safeguards. Going forward, sentencing courts and advocates should carefully document §3553(a) considerations to ensure that any appellate scrutiny of guideline issues does not affect the final outcome.