United States of America v. Timothy Eugene Angel

United States Court of Appeals
For the Eighth Circuit
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No. 23-1260
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United States of America
Plaintiff - Appellee
v.
Timothy Eugene Angel
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: October 16, 2023
Filed: February 22, 2024
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Timothy Eugene Angel pleaded guilty to possessing ammunition after having
been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The district court1 sentenced him to ninety-six months of incarceration and three
1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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years of supervised release. Angel appeals his sentence, arguing the district court
erred in determining his offense level by applying the attempted murder cross-
reference from the United States Sentencing Guidelines (USSG). We affirm.
I.
In the early morning of January 29, 2022, Angel, Leonard Fisher, and Tityana
Woodland were at a club in Davenport, Iowa. While inside the club, Angel and
Woodland got into an altercation and Woodland “pulled out a gun.” Woodland and
Fisher were then escorted outside by security. Angel walked out after them, crossed
the street to his car, and then crossed back. Angel shot at Fisher, and Fisher returned
fire. Angel fired five shots at Woodland and Fisher, hitting Fisher in the leg.
Angel was charged with, and pleaded guilty to, one count of possessing
ammunition after having been convicted of a felony. On the basis that Angel used a
firearm in connection with the offense of attempted murder when he fired shots
outside the club, the Presentence Investigation Report (PSR) calculated his base
offense level as 33 by applying the cross-reference under USSG § 2K2.1(c)(1)(A)
(2021). Under that Guideline provision,
If the defendant used or possessed any firearm or ammunition cited in
the offense of conviction in connection with the commission or
attempted commission of another offense, . . . apply . . . § 2X1.1
(Attempt, Solicitation, or Conspiracy) in respect to that other offense,
if the resulting offense level is greater than that determined [under
§ 2K2.1].
USSG § 2K2.1(c)(1)(A). Section 2X1.1, in turn, provides that “[w]hen an attempt .
. . is expressly covered by another offense guideline section, apply that guideline
section.” USSG § 2X1.1(c)(1). The guideline section applicable to attempted murder
is § 2A2.1, which provides that the base offense level is “33, if the object of the
offense would have constituted first degree murder.” USSG § 2A2.1(a)(1). Because
Angel’s PSR applied § 2K2.1(c)(1)(A) and cross-referenced to §§ 2X1.1(c) and

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2A2.1 (the Guideline for attempted first degree murder), his offense level was higher
than it would have been without the cross-reference.
Angel objected. At sentencing, the government presented evidence in support
of the cross-reference, including a surveillance video from a business near the club
that captured Angel cross the street from the club to his car, cross back, and exchange
fire with Fisher.
Relying on the evidence presented at sentencing and at Fisher’s trial,2 the
district court found the following facts by a preponderance of the evidence: after the
dispute inside the club, Angel opted to follow Woodland out of the club; after Angel
ran across the street to his car, he fired the first shot and Fisher returned fire; and
Angel shot Fisher. The district court expressly declined to find that Woodland
pointed a gun at Angel outside the club, but noted that “even if she did, she then puts
her arm back down . . . turns back around, and continues to walk away, in fact, runs
away before [Angel] starts firing.” Based on these findings, the district court
overruled Angel’s objection and applied the cross-reference.
II.
“We review the district court’s application of the sentencing guidelines de
novo and its factual findings for clear error.” United States v. Anwar, 880 F.3d 958,
971 (8th Cir. 2018) (quoting United States v. Miller, 511 F.3d 821, 823 (8th Cir.
2008)). “For sentencing purposes, the district court ‘need only find facts . . . by a
preponderance of the evidence,’ and may consider any relevant information . . .
‘provided that the information has sufficient indicia of reliability to support its
probable accuracy.’” United States v. Clark, 999 F.3d 1095, 1097 (8th Cir. 2021)
2 Fisher was indicted as Angel’s codefendant. He was charged with, and found
guilty of, possessing a firearm after having been convicted of a felony. The same
district court judge that presided over Angel’s sentencing presided over Fisher’s
trial. That trial was held approximately three weeks prior to Angel’s sentencing
hearing.

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(first quoting United States v. Mann, 701 F.3d 274, 309 (8th Cir. 2012); and then
quoting USSG § 6A1.3(a)). “We reverse for clear error ‘only when the entire record
definitely and firmly illustrates that the lower court made a mistake.’” Id. (quoting
United States v. Sainz Navarrete, 955 F.3d 713, 720 (8th Cir. 2020)).
The commentary to the attempted murder Guideline notes that “‘First degree
murder’ means conduct that . . . would constitute first degree murder under 18 U.S.C.
§ 1111.” USSG § 2A2.1, comment. (n.1). That statute defines murder as the
following:
Murder is the unlawful killing of a human being with malice
aforethought. Every murder perpetrated by poison, lying in wait, or any
other kind of willful, deliberate, malicious, and premeditated
killing; . . . or perpetrated from a premeditated design unlawfully and
maliciously to effect the death of any human being other than him who
is killed, is murder in the first degree.
18 U.S.C. § 1111(a). For this cross-reference to § 2A2.1 to apply, the government
needed to prove by a preponderance of the evidence that, inter alia, Angel acted with
malice aforethought and premeditation. See United States v. Greer, 57 F.4th 626,
629 (8th Cir. 2023) (“Applying clear error review, we will reverse only if the ‘entire
record definitely and firmly illustrates that the lower court made a mistake’ in finding
the malice aforethought and premeditation required for attempted first degree
murder, and that the attempted murder was not justified by self-defense.” (quoting
Clark, 999 F.3d at 1097)).
A.
Angel concedes that he shot at Woodland and Fisher but argues that he lacked
the requisite intent to murder them. Attempted first-degree murder “requires the
specific intent to kill.” Greer, 57 F.4th at 629 (citation omitted); see Eighth Circuit
Manual of Model Jury Instructions (Criminal) 6.18.1111A-1 (2021) (defining malice
aforethought). “[S]hooting at a particular person, or a group of people, demonstrates

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a specific intent to kill.” Greer, 57 F.4th at 629 (citation omitted). In Greer, we held
that a district court did not clearly err in finding a defendant had the intent to kill
required for attempted first degree murder where the defendant fired at least four
shots at a line of people in a convenience store, hitting one of them. Id. Here, Angel
fired five shots at Woodland and Fisher, hitting Fisher. The district court, relying on
Greer, did not clearly err in finding Angel had a specific intent to kill.
Angel also argues that there was insufficient time between when Woodland
threatened him with a gun in the club and when he shot in her direction for him to
have acted with the requisite premeditation. See 18 U.S.C. § 1111(a) (including
premeditation as element of attempted murder). “The amount of time needed for
premeditation . . . must be long enough for the defendant, after forming the intent to
kill, to be fully conscious of his intent, and to have thought about the killing.” Eighth
Circuit Manual of Model Jury Instructions (Criminal) 6.18.1111A-2 (2021)
(defining premeditation). But “proof of premeditation [does] not require the
government to show that the defendant deliberated for any particular length of time.”
United States v. Slader, 791 F.2d 655, 657 (8th Cir. 1986) (citing United States v.
Blue Thunder, 604 F.2d 550, 553 (8th Cir. 1979)). “[S]wift but deliberate actions
before shooting [can] demonstrate that [a defendant] acted with the requisite
premeditation.” Greer, 57 F.4th at 629 (citation omitted). The video showed that
after the altercation in the club, Angel followed Woodland and Fisher outside,
crossed the street to his car, crossed back, and then shot at them; he had enough time
to be fully conscious of his intent and to deliberate about his conduct. The district
court did not clearly err in finding Angel acted with premeditation.
B.
In the alternative, Angel contends that the cross reference does not apply
because he fired his gun in self-defense, which is an affirmative defense to attempted
murder. “If a person reasonably believes that force is necessary to protect himself or
another person from what he reasonably believes to be unlawful physical harm about
to be inflicted by another and uses such force, then he acted in self defense.” United

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States v. Farlee, 757 F.3d 810, 815 (8th Cir. 2014) (quoting United States v. Milk,
447 F.3d 593, 598 (8th Cir. 2006)); see United States v. Tunley, 664 F.3d 1260, 1262
n.3 (8th Cir. 2012) (“Self-defense as a justification for killing is not codified by
federal statute, but is instead a ‘basic right, recognized by many legal systems from
ancient times to the present day.’” (quoting McDonald v. City of Chicago, 561 U.S.
742, 767 (2010))). “However, self defense which involves using force likely to cause
death or great bodily harm is justified only if the person reasonably believes that
such force is necessary to protect himself . . . from what he reasonably believes to
be a substantial risk of death or great bodily harm.” Farlee, 757 F.3d at 817 (quoting
Eighth Circuit Manual of Model Jury Instructions (Criminal) 9.04 (2021)). Initiating
an assault where deadly force is used with the intent to kill “is inconsistent with a
self-defense claim.” Greer, 57 F.4th at 630 (quoting Milk, 447 F.3d at 599).
Woodland pulled out her gun in the club, but then security escorted her and
Fisher out. Angel remained inside. The district court found that Angel then left the
club on his own volition. According to the court, Angel “opted to follow [Woodland]
out” of the club, where he ran to his car and back across the street again, and “[a]ll
the while Ms. Woodland and Mr. Fisher [we]re walking away.” On the record before
it, the district court did not clearly err in finding that Angel “escalated” the situation
when he “cho[se] to come outside and continue the confrontation and go get a gun
and start firing,” and in rejecting Angel’s self-defense argument.
III.
We affirm the judgment of the district court.
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