Subject:  BRAXTON v. U.S., Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



BRAXTON v. UNITED STATES


certiorari to the united states court of appeals for the fourth circuit

No. 90-5358.  Argued March 18, 1991 -- Decided May 28, 1991

At a hearing at which petitioner Braxton pleaded guilty to assault and
firearm counts, but not guilty to the more serious charge of attempting to
kill a United States marshal, the Government presented facts -- to which
Braxton agreed -- showing, inter alia, that, after each of two instances in
which marshals kicked open his door, Braxton fired a gunshot "through the
door opening," and the shots lodged in the door's front.  Over Brax ton's
objections, the District Court later sentenced him as though he had been
convicted of the attempt to kill count, relying on a proviso in MDRV
1B1.2(a) of the U. S. Sentencing Comm'n Guidelines Manual.  Although MDRV
1B1.2(a) ordinarily requires a court to apply the Sentencing Guideline most
applicable to the offense of conviction, the proviso allows the court, in
the case of conviction by a guilty plea "containing a stipulation" that
"specifically establishes" a more serious offense, to apply the Guideline
most applicable to the stipulated offense.  The Court of Appeals upheld
Braxton's sentence.

Held: The court below misapplied the MDRV 1B1.2(a) proviso.  Pp. 3-7.

    (a) This Court will not resolve the question whether Braxton's guilty
plea "contain[ed] a stipulation" within the proviso's meaning.  The
Commission -- which was specifically charged by Congress with the duty to
review and revise the Guidelines and given the unusual explicit power to
decide whether and to what extent its amendments reducing sentences would
be given retroactive effect -- has already undertaken a proceeding that
will eliminate a conflict among the Federal Circuits over the precise
question at issue here.  Moreover, the specific controversy before the
Court can be decided on other grounds.  Pp. 3-5.

    (b) Assuming that Braxton's agreement to the Government's facts
constituted a "stipulation," that stipulation does not "specifically
establis[h]" an attempt to kill, as is required by the proviso.  At best,
the stipulation supports two reasonable readings -- one that Braxton shot
across the room at the marshals when they entered, and one that he shot
before they entered to frighten them off.  There is nothing in the latter
reading from which an intent to kill -- a necessary element of the attempt
to kill count -- could even be inferred.  Pp. 5-7.

903 F. 2d 292, reversed and remanded.
Scalia, J., delivered the opinion for a unanimous Court.

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Subject: 90-5358 -- OPINION, BRAXTON v. UNITED STATES

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-5358



THOMAS BRAXTON, PETITIONER v.
UNITED STATES


on writ of certiorari to the united states court of appeals for the fourth
circuit

[May 28, 1991]



    Justice Scalia delivered the opinion of the Court.
    At about 7 a.m. on June 10, 1988, four United States marshals arrived
at Thomas Braxton's door with a warrant for his arrest.  One of the
marshals, Deputy Jenkins, knocked.  There was no answer, though they could
hear someone inside.  Thirty minutes later the officers returned with a key
to Braxton's apartment.  Jenkins knocked again; and again received no
answer.  He unlocked the door, only to find it secured with a chain-lock as
well -- which he broke by kicking the door open.  "[C]ontemporaneous with
the door opening, a gunshot was fired through the door opening.  The
gunshot lodged in the front door just above the doorknob.  That's the
outside of the front door."  App. 17.  The door slammed shut and the
officers withdrew.  A moment later, Jenkins again kicked the door open.
Another shot was fired, this too lodging in the front of the door, about
five feet from the floor.  The officers again withdrew, and the area was
barricaded.  Braxton, who had fired the shots, eventually gave himself up,
and was charged in a three-count indictment with (1) an attempt to kill a
deputy United States marshal (18 U. S. C. MDRV 1114), (2) assault on a
deputy marshal (18 U. S. C. MDRV 111), and (3) the use of a firearm during
a crime of violence (18 U. S. C. MDRV 924(c)).
    These were the facts as presented by the Government during the course
of a plea hearing, pursuant to Rule 11(f) of the Federal Rules of Criminal
Procedure, at which Braxton pleaded guilty to the assault and firearm
counts of the indictment, and not guilty to the attempt to kill count.  The
pleas were not made pursuant to any plea agreement, and the Government did
not dismiss the attempt to kill count at the plea hearing.  The purpose of
the hearing was simply to provide a factual basis for accepting Braxton's
guilty pleas.
    Braxton agreed with the facts as the Government characterized them,
with two small caveats, neither of which is significant for purposes of
this case.  Subject to those "modifications," Braxton agreed that "what the
Government say[s] that it could prove [happened] happened."  App. 19.  With
this factual basis before it, the District Court accepted Braxton's guilty
pleas, specifically noting that "there is no plea agreement."  Ibid.
    Two months later, Braxton was sentenced.  Relying upon a proviso in
MDRV 1B1.2(a) of the U. S. Sentencing Comm'n, Guidelines Manual (1990), and
over Braxton's objections, the District Court in essence sentenced Braxton
as though he had been convicted of attempted killing, the only charge to
which Braxton had not confessed guilt.  The Court of Appeals upheld the
sentence, 903 F. 2d 292 (CA4 1990), and we granted certiorari.  498 U. S.
--- (1990).

I
    Ordinarily, a court pronouncing sentence under the Guidelines applies
the "offense guideline section . . . most applicable to the offense of
conviction."  MDRV 1B1.2(a).  There is, however, one "limited" exception to
this general rule, MDRV 1B1.2, Commentary, n. 1, consisting of the
following proviso to MDRV 1B1.2(a):


"Provided, however, in the case of conviction by a plea of guilty or nolo
contendere containing a stipulation that specifically establishes a more
serious offense than the offense of conviction, [the court shall apply the
guideline in such chapter] most applicable to the stipulated offense."


Braxton's conviction was no doubt by a "plea of guilty."  This case
presents the questions whether it was also a conviction by a plea (1)
"containing a stipulation" that (2) "specifically establishes" that Braxton
attempted to kill the marshals who had been sent to arrest him.  The Courts
of Appeals have divided on the meaning of the first phrase, "containing a
stipulation," and Braxton argues that however that phrase is read, the
court below misapplied the second, "specifically establishes a more serious
offense."  We consider each contention in turn.

A
    As the District Court noted, there was no plea agreement in this case.
Braxton argues that his plea did not "contai[n]" a stipulation because by
"containing a stipulation," the Guidelines mean a stipulation that is part
of a formal plea agreement.  Some Circuits to consider the question have
agreed with that interpretation, believing that the "stipulation" must be
part of the "quid pro quo" for the Government's agreement not to charge a
higher offense.  See, e. g., United States v. McCall, 915 F. 2d 811, 816,
n. 4 (CA2 1990); United States v. Warters, 885 F. 2d 1266, 1273, n. 5 (CA5
1989).  But as the Government points out, MDRV 1B1.2 does not by its terms
limit its application to stipulations contained in plea agreements; the
language speaks only of "plea[s] . . . con taining a stipulation."  Since,
the Government argues, any formal assent to a set of facts constitutes a
stipulation, Braxton's guilty plea "contain[ed] a stipulation" upon which
the court could rely in setting his base-offense level.  That was the
approach of the court below.
    A principal purpose for which we use our certiorari jurisdiction, and
the reason we granted certiorari in the present case, is to resolve
conflicts among the Circuit Courts of Appeals and state courts concerning
the meaning of provisions of federal law.  See this Court's Rule 10.1.
With respect to federal law apart from the Constitution, we are not the
sole body that could eliminate such conflicts, at least as far as their
continuation into the future is concerned.  Obviously, Congress itself can
eliminate a conflict concerning a statutory provision by making a
clarifying amendment to the statute, and agencies can do the same with
respect to regulations.  Ordinarily, however, we regard the task as
initially and primarily ours.  Events that have transpired since our grant
of certiorari in the present case have focused our attention on the fact
that this may not be Congress' intent with respect to the Sentencing
Guidelines.
    After we had granted Braxton's petition for certiorari, the Commission
requested public comment on whether MDRV 1B1.2(a) should be "amended to
provide expressly that such a stipulation must be as part of a formal plea
agreement," 56 Fed. Reg. 1891 (1991), which is the precise question raised
by the first part of Braxton's petition here.  The Commission took this
action pursuant to its statutory duty "periodically [to] review and revise"
the Guidelines.  28 U. S. C. MDRV 994(o).  The Guidelines are of course
implemented by the courts, so in charging the Commission "periodically [to]
review and revise" the Guidelines, Congress necessarily contemplated that
the Commission would periodically review the work of the courts, and would
make whatever clarifying revisions to the Guidelines conflicting judicial
decisions might suggest.  This congressional expectation alone might induce
us to be more restrained and circumspect in using our certiorari power as
the primary means of resolving such conflicts; but there is even further
indication that we ought to adopt that course.  In addition to the duty to
review and revise the guidelines, Congress has granted the Commission the
unusual explicit power to decide whether and to what extent its amendments
reducing sentences will be given retroactive effect, 28 U. S. C. MDRV
994(u).  This power has been implemented in Guideline MDRV 1B1.10, which
sets forth the amendments that justify sentence reduction.
    We choose not to resolve the first question presented in the current
case, because the Commission has already undertaken a proceeding that will
eliminate circuit conflict over the meaning of MDRV 1B1.2, and because the
specific controversy before us can be decided on other grounds, as set
forth below.

B
    Unlike the first question discussed above, which presents a general
issue of law on which the circuits have fallen into disagreement, Braxton's
second question is closely tied to the facts of the present case.  For the
proviso in MDRV 1B1.2(a) to apply, there must be not simply a stipulation,
but a stipulation that "specifically establishes" a more serious offense.
Thus, even assuming that Braxton's agreement to facts constituted a
"stipulation" for purposes of MDRV 1B1.2(a), unless it "specifically
established" an attempt to kill under 18 U. S. C. MDRV 1114, the sentence
based upon the guideline for that offense cannot stand.
    For Braxton to be guilty of an attempted killing under 18 U. S. C. MDRV
1114, he must have taken a substantial step towards that crime, and must
also have had the requisite mens rea.  See E. Devitt, C. Blackmar, & M.
Wolff, Federal Jury Practice and Instructions MDRV 14.21 (1990 Supp.).  A
stipulation by Braxton that he shot "at a marshal," without any
qualification about his intent, would suffice to establish a substantial
step towards the crime, and perhaps the necessary intent.  The stipulation
here, however, was not that Braxton shot "at a marshal."  As the Government
appears to concede, Brief for United States 19, n. 10, citing United States
v. Guerrero, 863 F. 2d 245, 248 (CA2 1988), the only stipulation relevant
to our inquiry is (at most) that which occurred at the Rule 11(f) hearing,
since MDRV 1B1.2 refers not to a stipulation in isolation, but to "a plea .
. . containing a stipulation." (Emphasis added.)  All Braxton agreed to at
the Rule 11(f) hearing was that he shot "through the door opening [and
that] [t]he gunshot lodged in the front door just above the doorknob.  That
[is] the outside of the front door."  App. 17.
    The Court of Appeals affirmed the District Court's judgment that this
"specifically established" a violation of 18 U. S. C. MDRV 1114, primarily
because it believed that at least the District Court was not "clearly
erroneous" in so concluding.  That is, of course, the standard applied,
when reviewing a sentence, to findings of fact.  18 U. S. C. MDRV 3742(e).
Determination of the meaning and effect of a stipulation, however, is not a
factual finding: We review that just as we would review a determination of
meaning and effect of a contract, or consent decree, or proffer for summary
judgment.  See, e. g., Washington Hospital v. White, 889 F. 2d 1294, 1299
(CA3 1989); Frost v. Davis, 346 F. 2d 82, 83 (CA5 1965).  The question,
therefore, is not whether there is any reasonable reading of the
stipulation that supports the District Court's determination, but whether
the District Court was right.
    We think it was not.  The stipulation does not say that Braxton shot at
the marshals; any such conclusion is an inference at best, and an inference
from ambiguous facts.  To give just one example of the ambiguity: The
Government proffered (and Braxton agreed) that Braxton shot "through the
door opening," and that the bullet lodged in the "front [of the] door."
App. 17.  It is difficult to understand how both of these facts could
possibly be true, at least on an ordinary understanding of what "door
opening" consists of.  One does not shoot through a door opening and hit
the door, any more than one walks through a door opening and bumps into the
door.  But in any case, if one accepts the stipulation that both shots
lodged in the front of the (inward-opening) door, it would be unreasonable
to conclude that Braxton was shooting at the marshals unless it was also
stipulated that the marshals had entered the room.  That was not
stipulated, and does not appear to have been the fact.  But even if one
could properly conclude that the stipulation "specifically established"
that Braxton had shot "at the marshals," it would also have to have
established that he did so with the intent of killing them. {1}  Not only
is there nothing in the stipulation from which that could even be inferred,
but the statements of Braxton's attorney at the hearing flatly deny it.


"Of course, there is lurking in the background the allegation of an
attempted murder.  You can gather from Mr. Braxton's position, and probably
from [the government's] statement of facts, that Mr. Braxton admits he
assaulted someone and used a handgun, but, obviously, is not admitting he
attempted to specifically murder anyone."  Id., at 22.


Braxton claims to have intended to frighten the marshals, not shoot them,
and that claim is certainly consistent with the stipulation before us.
    We of course do not know what actually happened that morning in June,
but that is not the question before us.  The only issue for resolution is
whether a stipulation that at best supports two reasonable readings -- one
that Braxton shot across the room at the marshals when they entered, and
one that he shot across the room before they entered to frighten them off
-- is a stipulation that "specifically establishes" that Braxton attempted
to murder one of the marshals.  It does not.
    The opinion of the Court of Appeals is reversed, and the cases remanded
for proceedings consistent with this opinion.

It is so ordered.
 
 
 
 
 
 

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1
    Since the statute does not specify the elements of "attempt to kill,"
they are those required for an "attempt" at common law, see Morissette v.
United States, 342 U. S. 246, 263 (1952), which include a specific intent
to commit the unlawful act.  "Although a murder may be committed without an
intent to kill, an attempt to commit murder requires a specific intent to
kill."  4 C. Torcia, Wharton's Criminal Law MDRV 743, p. 572 (14th ed.
1981).  See also R. Perkins & R. Boyce, Criminal Law 637 (3d ed. 1982); W.
LaFave & A. Scott, Criminal Law 428-429 (1972).
