Applying the § 2K2.1(c)(1)(A) Cross-Reference to Attempted First-Degree Murder Based on Video and Admissions, and Upholding a Major Upward Variance Under § 3553(a)

Case: United States v. Olivier Ricardy Alexandre (11th Cir. Feb. 24, 2026) (per curiam; not for publication)
Charges: Two counts under 18 U.S.C. § 922(g)(1) (felon in possession of ammunition; felon in possession of a firearm and ammunition)
Sentence: 240 months (upward variance from a 108–135 month Guidelines range)

1. Introduction

This appeal arose from a federal felon-in-possession case in which the sentencing court treated the defendant’s firearm possession as connected to an attempted killing. Olivier Ricardy Alexandre pleaded guilty to two violations of 18 U.S.C. § 922(g)(1). At sentencing, the district court found—based on surveillance videos and Alexandre’s own admissions in a factual proffer—that he chased a victim (B.V.) into a home and fired eighteen shots, intending to kill him.

The central issues on appeal were: (1) whether the court properly applied the Sentencing Guidelines cross-reference that effectively sentenced Alexandre as an attempted first-degree murderer; (2) whether the sentence was procedurally and substantively reasonable, including whether the court relied on unreliable “speculative relevant conduct”; and (3) whether a prosecutor’s “murderer” remark at sentencing constituted plain-error prosecutorial misconduct.

2. Summary of the Opinion

The Eleventh Circuit affirmed. It held that the district court did not clearly err in finding intent to kill and premeditation, making the attempted first-degree murder guideline applicable through the firearms guideline cross-reference. The court further held that the district court permissibly considered shell-casing evidence connecting the same gun to a prior shooting of the same victim as part of its 18 U.S.C. § 3553(a) analysis, and that the 240-month upward variance was adequately justified and within the court’s discretion. Finally, the court rejected the claim of prosecutorial misconduct, emphasizing that the defendant himself used the term “murderer” in an admitted jail call and the sentencing court focused on attempted murder, not an actual homicide.

3. Analysis

3.1. Precedents Cited

The panel’s reasoning leaned heavily on established standards of review (clear error, abuse of discretion, plain error) and prior Eleventh Circuit explanations of attempted murder and sentencing discretion.

  • United States v. Cenephat, 115 F.4th 1359 (11th Cir. 2024): The decision supplied the operative definitions. The panel quoted Cenephat for (a) first-degree murder as a “willful, deliberate, malicious, and premeditated killing,” and (b) attempted murder requiring intent to kill plus a substantial step. This framing allowed the court to treat the surveillance footage (eighteen shots, pursuit into a home) and the factual proffer (“wanted to kill”) as direct proof of the necessary mens rea and actus reus.
  • United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011): Provided the standard of review—de novo for Guidelines interpretation/application and clear error for factual findings—structuring how the panel evaluated the district court’s findings about intent and conduct.
  • United States v. Robertson, 493 F.3d 1322 (11th Cir. 2007): The panel used Robertson’s articulation of clear error (“definite and firm conviction”) to underscore that the record (videos and admissions) foreclosed reversal on factfinding.
  • United States v. Izquierdo, 448 F.3d 1269 (11th Cir. 2006): Reinforced deference where “two permissible views” of the evidence exist; the panel invoked it to reject Alexandre’s alternative interpretation (that he meant only to scare/injure).
  • United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005): Set out the four-part plain-error framework used to dispose of an unpreserved challenge to the court’s “armed burglary” comment in the footnote discussion.
  • United States v. Gyetvay, 149 F.4th 1213 (11th Cir. 2025): Cited for two propositions: (1) a district court abuses discretion if it makes clearly erroneous factual findings; and (2) where the record makes clear what evidence the court relied upon, a lack of explicit explanation may not be plain error. This supported affirmance despite Alexandre’s attacks on “relevant conduct” discussion.
  • United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014): Provided the overarching “deferential abuse-of-discretion” standard for reviewing sentence reasonableness.
  • United States v. Fox, 926 F.3d 1275 (11th Cir. 2019): Confirmed substantive reasonableness review considers the “totality of the circumstances” and the § 3553(a) factors.
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Supplied the abuse-of-discretion definition (failure to consider key factors; weighing improper factors; clear error of judgment), framing why the upward variance survived review.
  • United States v. Shaw, 560 F.3d 1230 (11th Cir. 2009): Supported the principle that district courts have “considerable discretion” regarding whether and how far to vary based on § 3553(a), and that appellate courts owe “due deference.”
  • United States v. Oscar, 877 F.3d 1270 (11th Cir. 2017): Provided the two-part test for prosecutorial misconduct (improper remark + prejudice to substantial rights).
  • United States v. House, 684 F.3d 1173 (11th Cir. 2012): Established plain-error review for unobjected-to misconduct claims at sentencing.

3.2. Legal Reasoning

A. The Guidelines cross-reference to attempted first-degree murder

The sentencing path mattered. Alexandre’s felon-in-possession offenses began at U.S.S.G. § 2K2.1. The district court then applied the cross-reference in § 2K2.1(c)(1)(A) because it found Alexandre used or possessed the firearm/ammunition “in connection with” the attempted commission of another offense—here, attempted murder. That cross-reference routed the analysis to the attempt guideline, § 2X1.1, which in turn directed the court to apply the guideline that “expressly covered” the attempt: § 2A2.1(a)(1) (attempted first-degree murder), producing a base offense level of 33.

The appellate court rejected Alexandre’s claim that the district court lacked sufficient evidence or explicit intent findings. The panel emphasized two record anchors:

  • Objective conduct: surveillance video depicting Alexandre chasing B.V. into his home and firing eighteen shots as B.V. fled/crawled away.
  • Subjective intent: Alexandre’s factual proffer admission that he “wanted to kill” B.V. to avenge a friend’s death.

Under the clear-error standard, this combination made the district court’s intent-to-kill finding not just permissible but strongly supported. The panel also highlighted aggravating circumstances (entering the home with other people present; firing a “barrage”), reinforcing premeditation and extreme indifference to bystanders—facts consistent with first-degree attempted murder as described in United States v. Cenephat.

B. Procedural/substantive reasonableness and “speculative relevant conduct”

Alexandre argued the district court relied on speculative relevant conduct—specifically, shell-casing evidence showing that the same firearm was used in an earlier shooting of B.V. months before. The Eleventh Circuit treated this as a factual finding reviewed for clear error within an overall reasonableness review (abuse of discretion).

Critically, the district court did not find Alexandre definitively committed the earlier shooting; it found that the same gun, same victim, and temporal proximity suggested more than coincidence and supported some “connection.” The panel held these findings were not clearly erroneous and, in any event, the upward variance was amply supported by other § 3553(a) considerations the court detailed: the attempted murder itself, the danger to bystanders, Alexandre’s probationary status, his criminal history, and the subsequent armed confrontation with a tow truck driver.

The panel also noted proportionality markers used commonly in substantive reasonableness review: the correctly calculated Guidelines range (108–135 months), the statutory maximum (30 years), and the court’s decision to sentence below the maximum (240 months) because of acceptance of responsibility and youth—facts supporting a reasoned, not arbitrary, variance.

C. Prosecutorial misconduct claim based on “murderer” remark

The prosecutor argued that the sentencing judge would be “the judge that lets this murderer out,” referring to a jail call in which Alexandre himself said, “they let a murderer out.” Because there was no objection, the claim was reviewed for plain error.

Applying United States v. Oscar and United States v. House, the panel found no misconduct: the remark tracked admitted evidence and the district court’s sentencing rationale focused on attempted murder and the tow-truck incident, not an actual homicide. Without impropriety and without prejudice affecting substantial rights, resentencing was unwarranted.

3.3. Impact

Although unpublished and not binding precedent, the opinion is instructive on three recurring federal sentencing themes:

  • Cross-reference robustness in gun cases: When a defendant’s firearm possession is contemporaneous with a violent attempt and the record includes both video evidence and admissions, district courts have a sturdy basis to apply § 2K2.1(c)(1)(A) → § 2X1.1 → § 2A2.1(a)(1) without needing elaborate “magic words” findings, so long as the intent-to-kill finding is supported.
  • Upward variances remain hard to overturn when well-explained: Detailed § 3553(a) reasoning—especially emphasizing public protection, deterrence, probation status, and risk to third parties—tends to survive abuse-of-discretion review even when the variance is large.
  • Sentencing rhetoric and admitted evidence: Where the government’s rhetoric mirrors the defendant’s own recorded characterization and the court’s reasoning remains tethered to the correct offense conduct, a misconduct claim is unlikely to succeed, particularly under plain-error review.

4. Complex Concepts Simplified

  • Guidelines “cross-reference”: A rule that redirects the sentencing calculation from one guideline (here, firearm possession) to another guideline that better matches the real conduct (here, attempted murder) when the firearm was used “in connection with” that conduct.
  • Attempted first-degree murder under the Guidelines: Requires (1) intent to kill and (2) a substantial step (such as firing repeatedly at the victim). “First degree” adds deliberation/premeditation.
  • Relevant conduct: Information about behavior related to the offense that the judge may consider at sentencing, even if not charged, as long as it is supported by sufficiently reliable evidence.
  • Procedural vs. substantive reasonableness: Procedural focuses on whether the court used correct steps (proper Guidelines calculation, reliable facts, adequate explanation). Substantive asks whether the final sentence is reasonable given the totality of circumstances and § 3553(a).
  • Standards of review: “Clear error” is highly deferential to the trial judge’s factfinding; “abuse of discretion” is deferential to the sentencing choice; “plain error” (when no objection was made) is the hardest standard for an appellant to satisfy.
  • Upward variance: A sentence above the advisory Guidelines range based on the judge’s weighing of § 3553(a) factors (public safety, deterrence, seriousness, history/characteristics, etc.).

5. Conclusion

United States v. Olivier Ricardy Alexandre affirms that, in a felon-in-possession case, a district court may apply the Guidelines cross-reference to attempted first-degree murder when the record—especially video evidence and the defendant’s own admissions—supports intent to kill and a substantial step. It also underscores the breadth of district court discretion to impose a substantial upward variance when the § 3553(a) factors are carefully explained and anchored in reliable evidence, and it illustrates the steep hurdles defendants face when raising unpreserved claims of sentencing error or prosecutorial misconduct on appeal.

Note: The opinion is designated “NOT FOR PUBLICATION,” limiting its precedential force, but its reasoning reflects mainstream Eleventh Circuit sentencing doctrine.