Here, again, the district court made insufficient findings. Under the federal statute, from which we borrow the definition of first degree murder is the unlawful killing of a human being with malice aforethought, done with premeditation or committed in the perpetration of certain enumerated felonies. ![]() After a sentencing court determines that death resulted from the defendant's possession of a firearm, it must choose the most appropriate homicide guideline: first or second degree murder, or voluntary or involuntary manslaughter. Walls, 80 F.3d at 240 (defendant fired shot blindly toward enemy's house and an innocent bystander was killed).Įven if we were to uphold the court's conclusion that Leal's death resulted from Thomas's possession of a firearm in connection with another offense, the court's application of the cross reference would still be improper because the court's selection of first degree murder as opposed to an offense with a lesser culpability was also plain error. As far as we can tell, the pistol that Thomas possessed was also not used to shoot at Leal. See Smith, 5 F.3d at 260 (defendant used firearm to shoot and kill partygoer). This is important because, unlike the defendant in Smith, the pistol that Thomas was found in possession of was not the weapon used to kill Leal. Most significantly, because Leal was not shot with his own gun, we do not know if Thomas even possessed a firearm before or at the time of the murder. And, the evidence that Thomas was found in possession of Leal's pistol the day after the murder, and Detective Titus's testimony that the blood on Thomas's t-shirt was due to Thomas getting into the car after Leal had been shot, could support the conclusion that Thomas's involvement occurred after Leal's death. Leal's gun." We are unable to determine if the theft and possession resulted in Leal's death or if Leal's death precipitated the theft and possession. All the court found was that Thomas was "involved" in Leal's murder and "the theft of Mr. The problem here is that the district court did not make any findings that Thomas's conduct put into motion a series of events that led to Leal's death. § 5K2.1, to a defendant who transported a minor across state lines for the purpose of prostitution who was killed, presumably by a customer). 1992) (affirming application of the general "death results" guideline, U.S.S.G. 1993) (approved application of homicide cross reference to a defendant who fired recklessly into a group of New Year's Eve partygoers killing one of them) United States v. We affirmed concluding that irrespective of whether Walls fired the fatal shot, his conduct resulted in the bystander's death. The district court cross-referenced Walls's conviction for possession of a firearm while a felon with the homicide guidelines, reasoning that Walls "put in motion this series of events that resulted in the taking of a human life." Id. For example, in Walls, the evidence introduced at sentencing demonstrated that the defendant gathered a group of armed men, proceeded to a rival's house where a gunfight ensued, and fired a shot into a crowd in which an innocent bystander was killed. Generally, this means that the defendant's possession of a weapon during the commission of another offense "put into motion a chain of events that ended in a tragedy." Id. He is a main character on Victorious (2010), in the role of André, which premiered on Nickelodeon on March 27, 2010.To determine "if death resulted," the sentencing court must ascertain whether the defendant's conduct was "intentional or reckless" and whether death was "a foreseeable risk" of that conduct. He also appeared as Harper in the iCarly (2007) episode "iCarly Saves TV" and was featured on The Naked Brothers Band (2007) Christmas special. Thomas has also guest-starred on Jack's Big Music Show (2005) and Just Jordan (2007). In 2007, he appeared alongside Robin Williams and Terrence Howard in the film August Rush (2007) as Arthur, in which he performed the song "La Bamba," and he was the singing voice of Tyrone in The Backyardigans (2004). ![]() Thomas also performed in the Broadway production of the musical version of Alice Walker's The Color Purple (1985). In 2004, he appeared as Jackie Thibodeaux in the original Broadway cast of Tony Kushner's "Caroline, or Change." He also toured with the company during its five-month run in Los Angeles and San Francisco. ![]() Thomas was born in Brooklyn, New York, but moved to Los Angeles, California, and now resides there.Īt age 10 he made his Broadway debut in 2003 as Young Simba in the Broadway production of The Lion King (1994).
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