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
Braxton'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 § 1B1.2(a) of the U.S. Sentencing Comm'n Guidelines
Manual. Although § 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 § 1B1.2(a)
proviso. Pp.
500 U. S.
346-351.
(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.
500 U. S.
347-349.
(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.
500 U. S.
349-351.
903 F.2d 292 (4th Cir.1990), reversed and remanded.
Page 500 U. S. 345
SCALIA, J., delivered the opinion for a unanimous Court.
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. § 1114),
(2) assault on a deputy marshal (18 U.S.C. § 111), and (3) the use
of a firearm during a crime of violence (18 U.S.C. § 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
Page 500 U. S. 346
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 § 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. 966,
(1990).
I
Ordinarily, a court pronouncing sentence under the Guidelines
applies the "offense guideline section . . . most applicable to the
offense of conviction." § 1B1.2(a). There is, however, one
"limited" exception to this general rule, § 1B1.2,
Commentary, n. 1, consisting of the following proviso to §
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
Page 500 U. S. 347
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, § 1B1.2 does not, by its
terms,
limit its application to stipulations contained in
plea
agreements; the language speaks only of "plea[s] . .
. containing 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
Page 500 U. S. 348
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 § 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. § 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. § 994(u). This power
has been implemented in Guideline § 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
Page 500 U. S. 349
meaning of § 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 § 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 § 1B1.2(a), unless it "specifically
established" an attempt to kill under 18 U.S.C. § 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.
§ 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 § 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 § 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
Page 500 U. S. 350
U.S.C. § 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. § 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
Page 500 U. S. 351
them.
* 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.
* 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,
342 U. S. 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 § 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).