U.S.S.G. § 2K2.1(c)(1) Homicide Cross-Reference Requires the Firearm Be “Cited in the Offense of Conviction”

I. Introduction

In United States v. Murphy (5th Cir. July 23, 2026), the Fifth Circuit reviewed a 360-month sentence imposed after Trayvon Murphy pleaded guilty—without a plea agreement—to a superseding indictment charging (among other counts) a firearms conspiracy under 18 U.S.C. § 924(o), a drug-trafficking conspiracy, and Hobbs Act robbery offenses.

The sentencing dispute centered on whether Murphy’s Guidelines range could be driven by a homicide cross-reference based on the murder of Jermaine Gooden, which the district court found Murphy aided and abetted by providing a .223 rifle and driving participants to the scene. The presentence report applied U.S.S.G. § 2K2.1 and then the cross-reference in § 2K2.1(c)(1)(B), producing a dramatically higher advisory range.

On appeal, Murphy challenged: (1) factual findings crediting a cooperating co-defendant, (2) heroin quantity, (3) denial of a mitigating-role adjustment, (4) application of the homicide cross-reference, and (5) the burden of proof used at sentencing.

II. Summary of the Opinion

  • Affirmed: credibility/evidentiary determinations supporting Murphy’s involvement in the killing; heroin quantity (100 grams); denial of a mitigating-role reduction under § 3B1.2; and use of the preponderance standard at sentencing.
  • Reversed: application of U.S.S.G. § 2K2.1(c)(1) homicide cross-reference.
  • Disposition: sentence vacated and remanded for resentencing without the cross-reference.

The panel’s key holding is a textual one: § 2K2.1(c)(1) applies only if the firearm used/possessed in the other offense is “cited in the offense of conviction,” which the majority interprets to require citation in the charging instrument (or equivalent offense-of-conviction materials), not merely proof at sentencing as “relevant conduct.”

III. Analysis

A. Precedents Cited

1. Standards of review and deference to sentencing factfinding

  • United States v. Aderinoye (clear error for factual findings; de novo for Guidelines interpretation) supplied the general appellate framework applied across Murphy’s objections.
  • United States v. Coleman, United States v. Humbles (quoting United States v. Torres-Magana) reinforced that factual findings are upheld if “plausible in light of the record as a whole,” emphasizing the high bar for reversal under clear-error review.

2. Reliability of sentencing evidence, PSRs, and credibility determinations

  • United States v. Cantu-Ramirez underscored the “wide discretion” district courts have in what evidence to credit at sentencing.
  • United States v. Nava (quoting United States v. Solis) established that sentencing courts may rely on evidence—including hearsay—if it bears “sufficient indicia of reliability.”
  • United States v. Masha and United States v. Hawkins were used for the proposition that PSRs generally carry sufficient reliability, and the defendant bears the burden to rebut PSR facts with evidence showing material untruth or unreliability.
  • United States v. Andaverde-Tinoco and United States v. Lucio supported reliance on even uncorroborated or partially corroborated testimony at sentencing if overall reliability is adequate.
  • United States v. Sotelo and United States v. Goncalves anchored the court’s refusal to second-guess the district judge’s credibility determinations—particularly important where the key witness was a cooperating co-defendant.

3. Drug quantity methodology and the “rebuttal evidence” requirement

  • United States v. Lucio (quoting United States v. Koss) provided the deferential standard for drug-quantity findings.
  • United States v. Dinh (quoting United States v. Valdez and United States v. Harris) supported extrapolation/estimation from reliable information and permitted adoption of PSR quantities absent rebuttal evidence.
  • United States v. Arayatanon clarified that “mere objections” do not constitute competent rebuttal evidence—critical to affirming the 100-gram heroin finding.

4. Mitigating role adjustment doctrine

  • United States v. Castro framed the governing test: the defendant must be “substantially less culpable than the average participant,” and there is no automatic reduction for everyone except the “mastermind.”
  • United States v. Gomez-Valle was cited for the (non-exhaustive) § 3B1.2 commentary factors courts should consider.
  • United States v. Miranda assigned the burden to the defendant to prove entitlement to the adjustment by a preponderance.
  • United States v. Charles supported deeming inadequately briefed arguments abandoned; the panel noted Murphy did not meaningfully engage the § 3B1.2 factors.

5. Guideline interpretation and the “cited in the offense of conviction” holding

  • United States v. Serfass and United States v. Koss supplied interpretive methodology: ordinary rules of statutory construction; plain meaning controls absent absurdity.
  • Stinson v. United States and United States v. Rodriguez-Parra established the authoritative force of Guidelines commentary and application notes when consistent with the Guideline text.
  • The court relied on definitional provisions and consistent-usage principles:
    • United States v. Lawler, United States v. Rebmann, United States v. Blackwell, and United States v. Pressler were cited for the distinction between “offense” (which includes relevant conduct) and “offense of conviction” (which does not).
    • United States v. Jones (quoting Brown v. Gardner) supplied the canon of consistent usage, reinforcing that “offense of conviction” should carry a stable meaning across the Guidelines.
  • United States v. Greenough served as Fifth Circuit internal support for requiring that “offense of conviction” facts be charged in the indictment when a Guideline enhancement turns on what the offense of conviction “establishes.”
  • The panel distinguished United States v. White (unpublished), emphasizing that the indictment there expressly identified the firearm and the defendant admitted it—features missing in Murphy.
  • United States v. Juarez was used to reject expanding a Guideline’s reach in a way “plainly inconsistent” with its text.
  • The government’s out-of-circuit authorities were addressed but not followed on these facts: United States v. Edger and United States v. Aberant. The majority found their reasoning incomplete because they did not account for Guidelines definitions of “offense” and “offense of conviction,” and their factual settings differed (including non-disputed firearm identity).
  • The majority noted United States v. Gonzales only to explain why reliance on it (via White) is weakened: it predates the 2014 amendment adding the “cited in the offense of conviction” limitation.

6. Burden of proof for dramatic sentencing increases

  • United States v. Millsaps provided the default rule: preponderance of evidence governs sentencing factfinding.
  • United States v. Simpson and United States v. Mergerson were cited for the Fifth Circuit’s recognition (but non-application) of a possible “rare case” needing a heightened standard.
  • United States v. Carreon and United States v. Dockery illustrated that even very large increases have not compelled a heightened burden in this circuit.

B. Legal Reasoning

1. Upholding the district court’s factfinding (except as to the cross-reference predicate)

The panel treated Murphy’s challenges to the murder-related factual findings primarily as a reliability/credibility dispute. Applying United States v. Cantu-Ramirez, United States v. Nava, and related authority, the court held the district court could credit the cooperating witness and related evidence (texts, cell data), and Murphy offered no rebuttal evidence sufficient under United States v. Hawkins to undermine the PSR and testimony. The court reiterated that credibility determinations are nearly unassailable on appeal under United States v. Sotelo and United States v. Goncalves.

2. Drug quantity and mitigating role: procedural burdens controlled the outcome

For heroin quantity, the panel emphasized that sentencing can rest on reasonable estimates from reliable information (United States v. Dinh; United States v. Valdez) and that objections without evidence do not rebut PSR findings (United States v. Arayatanon). For mitigating role, Murphy did not engage the § 3B1.2 factors and did not show he was “substantially less culpable” than average participants (United States v. Castro), leaving the district court’s denial intact.

3. The centerpiece: construing “cited in the offense of conviction” in § 2K2.1(c)(1)

The majority’s reversal turned on a tightly textual and structural interpretation of § 2K2.1(c)(1) after the 2014 amendment (U.S. Sent’g Guidelines Manual: Supp. App. C, Amend. 784 (2014)). The court read the phrase “cited in the offense of conviction” as a limiting requirement, not surplusage, and concluded:

  • “Offense of conviction” is narrower than “offense” and excludes relevant conduct (relying on definitions and sister-circuit explanations cited in the opinion).
  • The commentary—especially Application Note 14(E)—is authoritative under Stinson v. United States and expressly describes an “additional requirement” that the firearm be “cited in the offense of conviction.”
  • Comparison to § 2K2.1(b)(7)(B) (formerly (b)(6)(B)) showed that when the Commission wanted a broad “any firearm” connection it said so; the cross-reference instead demands a “cited” firearm.
  • The amendment history confirmed the Commission’s aim: requiring the instant offense and other offense to share “an identifiable firearm in common,” narrowing the cross-reference to “the particular firearm or firearms cited in the offense of conviction.”

Applying that construction, the majority found the cross-reference unavailable because “Neither the superseding indictment nor the factual resume ‘cites’ the .223 rifle used in Gooden’s murder.” Thus, even if the district court permissibly found Murphy’s involvement in the murder by a preponderance, the specific Guideline trigger was absent.

4. The dissent’s competing purposive reading

Judge Jones warned the majority’s approach may produce a “perverse consequence”: the more broadly violent a conspiracy charge, the harder it may be to apply the homicide cross-reference unless the indictment happens to specify a particular gun. The dissent argued “cited” should not be treated as a technical pleading requirement and would read Count 1’s allegation of conspiring to possess firearms during “crimes of violence” as sufficiently “citing” firearms used in that conduct, with the precise gun identity supplied by sentencing evidence.

The dissent also viewed the Sentencing Commission’s example as tailored to narrow felon-in-possession indictments (one gun charged; different gun used elsewhere) and not controlling for multi-defendant conspiracies where weapon identification may be practically difficult at charging.

C. Impact

1. Immediate effect in the Fifth Circuit: charging and plea-basis precision matters

The decision creates a concrete and consequential drafting incentive: where the government anticipates seeking § 2K2.1(c)(1) based on a homicide or other serious “other offense,” it should ensure the firearm (or firearms) that will anchor the cross-reference is explicitly “cited” in the count of conviction (or otherwise established in offense-of-conviction materials the court will treat as satisfying that requirement). Absent such citation, sentencing proof of the gun’s involvement—even credited testimony—may be insufficient to trigger the cross-reference.

2. Litigation effects: a new focal point for Guidelines disputes

Post-Murphy, defendants will likely challenge § 2K2.1(c)(1) cross-references by separating (a) factual involvement in violent conduct from (b) the distinct textual requirement that the firearm be “cited in the offense of conviction.” Expect briefing to concentrate on what documents qualify as the “offense of conviction” (indictment/information, specific count language, incorporated firearm descriptions, and plea/factual basis materials), and whether they “cite” a firearm with enough specificity.

3. Systemic consequences: narrowing “real-offense” sentencing for this cross-reference

The Guidelines often operate as “real-offense” sentencing via relevant conduct, but Murphy treats § 2K2.1(c)(1)’s “cited” requirement as an express carve-out that limits relevant conduct. That narrows when homicide-level punishment can attach to firearms counts in the Fifth Circuit—unless the firearm is properly “cited.”

IV. Complex Concepts Simplified

  • PSR (Presentence Report): a probation officer’s report summarizing offense conduct and recommending Guidelines calculations; courts may rely on it unless the defendant rebuts it with evidence.
  • Clear error review: an appellate court will not overturn factual findings unless left with a “definite and firm conviction” a mistake occurred; it is highly deferential to the trial judge.
  • Cross-reference: a Guidelines mechanism that replaces the usual offense Guideline with another Guideline (here, homicide) when specific conditions are met—often producing far higher ranges.
  • Relevant conduct: conduct related to the offense that can affect sentencing even if not charged or proven at trial, unless a Guideline “otherwise specifies” a narrower basis.
  • Mitigating role (§ 3B1.2): a reduction for defendants substantially less culpable than average participants; being “less important than the leader” is not enough by itself.
  • Preponderance of the evidence: the usual sentencing standard—more likely than not—lower than “beyond a reasonable doubt.”

V. Conclusion

United States v. Murphy is a significant Fifth Circuit sentencing decision because it enforces, as a meaningful limitation, the 2014-added requirement in U.S.S.G. § 2K2.1(c)(1) that the firearm used in the other offense be “cited in the offense of conviction.” While affirming broad discretion to credit sentencing evidence and upholding drug-quantity and role determinations, the court drew a firm boundary around this cross-reference: homicide-level punishment cannot be imposed through § 2K2.1(c)(1) unless the firearm is tied to the offense of conviction by citation, not merely by sentencing-stage factfinding. The remand signals that precision in charging and plea records will be outcome-determinative for this powerful enhancement going forward.