United States v. Bond: “Lying-in-Wait” Shooting Satisfies Specific-Intent Requirement for Attempted-Murder Cross-Reference under U.S.S.G. § 2K2.1

1. Introduction

The Sixth Circuit’s unpublished opinion in United States v. Dontavious Bond, No. 24-5781 (6th Cir. July 8, 2025), addresses the perennial sentencing questions that arise when a felon-in-possession offense is intertwined with violent conduct. The panel (Judges Thapar, Nalbandian, and Readler; opinion by Judge Nalbandian) considered whether firing eight shots after hiding behind a building constituted attempted first-degree murder—thus justifying a steep cross-reference under § 2K2.1(c)(1)(A) of the Sentencing Guidelines—and whether the Government’s refusal to move for an additional acceptance-of-responsibility point under § 3E1.1(b) was reviewable or harmless.

The decision is procedurally narrow but doctrinally significant: it crystallises the Sixth Circuit’s approach to inferring “specific intent to kill” from “lying in wait” and targeted gunfire, and it reinforces that once a statutory maximum supplants the calculated Guidelines range, many alleged Guideline errors become harmless.

2. Summary of the Judgment

Guideline Cross-Reference: The district court applied the § 2A2.1 base offense level of 33 for attempted first-degree murder. The Sixth Circuit affirmed, holding that Bond’s conduct—waiting in ambush and firing at the Lexus occupants—supported a finding of specific intent to kill.
Acceptance of Responsibility: Bond received the routine two-level reduction under § 3E1.1(a). The Government declined to request the optional third level. The panel deemed any error harmless because the 120-month statutory cap for § 922(g)(1) (pre-2022 version) formed the operative range regardless of one additional offense-level point.
Holding: No procedural error occurred; sentence of 120 months (statutory maximum) affirmed.

3. Analysis

a. Precedents Cited and Their Influence

The opinion weaves together six principal strands of Sixth Circuit and Supreme Court authority:

Braxton v. United States, 500 U.S. 344 (1991): Established that attempted murder requires specific intent to kill.
United States v. Howell, 17 F.4th 673 (6th Cir. 2021): Clarified that aiming and firing at people permits inference of intent; applied the same cross-reference.
United States v. Simmons, 633 F. App’x 316 (6th Cir. 2015): Recognised “lying in wait” as evidence of premeditation and specific intent.
United States v. Grant, 15 F.4th 452 (6th Cir. 2021) & United States v. Bradford, 822 F. App’x 335 (6th Cir. 2020): Confirmed that firing at a group or vehicle supports attempted-murder cross-reference.
United States v. Carter, 444 F. App’x 862 (6th Cir. 2011) & Koons v. United States, 138 S. Ct. 1783 (2018): Solidified the principle that statutory minimums/maximums override higher or lower Guideline ranges for sentencing purposes.

By aligning Bond’s facts with Simmons (ambush) and Howell/Grant (targeted fire), the panel concluded that all controlling precedents support the district court’s choice of § 2A2.1. The resulting analysis also harmonises with Braxton: intent may be inferred circumstantially.

b. Legal Reasoning of the Court

Step-One: Identify the Base Guideline. For § 922(g)(1) offenses the starting point is § 2K2.1.
Step-Two: Apply the Cross-Reference. Under § 2K2.1(c)(1)(A) a cross-reference is mandatory if the firearm was used in connection with another offense. The district court found the “other offense” to be attempted first-degree murder, leading to § 2A2.1.
Step-Three: Determine Specific Intent. The panel treated intent as a factual determination reviewed for clear error. Video surveillance and ballistic evidence showed Bond: (i) exited the liquor store; (ii) hid behind an adjacent building (lying in wait); (iii) re-emerged when the victims approached the Lexus; (iv) fired eight rounds at the vehicle. These facts justified the inference of intent to kill.
Refusal of Third Acceptance Point. § 3E1.1(b) entrusts the extra point purely to prosecutorial discretion. Even if discretion was abused, the error is harmless because both acceptable ranges (135–168 and 121–151) exceed the 120-month cap; the maximum thus functions as the operative Guideline sentence.
Harmless-Error Analysis. Following Cruz and Whyte, the panel held that a miscalculation which does not alter the final advisory range can be ignored.

c. Impact on Future Litigation

Expanded Use of “Lying in Wait” Theory: Prosecutors may invoke Bond to argue that any ambush-style shooting—even if no one is struck—triggers the § 2A2.1 cross-reference.
Facilitating Upward Adjustments in Gang-Related Cases: The opinion showcases how gang disputes can be reframed as attempted murders for Guideline purposes, resulting in base offense levels in the 30s instead of the teens.
Harmless-Error Doctrine Reaffirmed: Defense counsel should recognise that challenging minor offense-level issues is futile if the statutory ceiling eclipses the calculated range.
Prosecutorial Discretion under § 3E1.1(b): The Government’s power remains largely unchecked absent proof of unconstitutional motives; Bond tightens the already narrow window for appellate relief.
Temporal Limits on New § 922(g) Penalties: The court’s footnote applying the pre-2022 maximum underscores the Ex Post Facto principle—an essential reminder for practitioners managing cases spanning statutory amendments.

4. Complex Concepts Simplified

Cross-Reference (§ 2K2.1(c)): An instruction inside the Guidelines telling courts to switch to (and apply) the Guideline that covers a different, more serious offense committed with the gun.
Specific Intent to Kill: A mental state requiring proof that the defendant intended the death of a particular person (or group). It can be inferred from actions such as aiming directly at victims or ambushing them.
“Lying in Wait”: A classic form of premeditation where the assailant hides and waits for the victim—evidence of deliberate planning.
Acceptance of Responsibility (§ 3E1.1): A sentencing adjustment rewarding defendants who promptly admit wrongdoing. The first two levels are within the judge’s control; the third depends exclusively on a Government motion.
Harmless Error: A legal doctrine that disregards mistakes which do not affect the sentence’s length or fairness. If the statutory maximum sentence is the same irrespective of the alleged error, the error is “harmless.”
Statutory Maximum vs. Guideline Range: The Guideline range is advisory; the statutory maximum is mandatory. If the calculated range exceeds the statutory cap, the cap substitutes as the top—and often bottom—of the advisory range.

5. Conclusion

United States v. Bond deepens Sixth Circuit precedent confirming that ambush-style shootings furnish the “specific intent to kill” required for the attempted-murder cross-reference. By upholding a 120-month sentence on a felon-in-possession plea, the court signals that defendants who fire on rivals—even absent injuries—risk being treated as would-be murderers at sentencing. Additionally, the decision underscores two pragmatic lessons: (1) prosecutorial control over the extra acceptance-of-responsibility point is nearly unassailable; and (2) disputes that do not change the ultimate sentencing ceiling are unlikely to succeed on appeal. Together, these principles will steer plea negotiations, guideline litigation, and appellate strategy in firearm-related prosecutions throughout the Sixth Circuit and potentially beyond.