## Facts

- Michael D. Milton, a convicted felon, arranged a drug transaction in Detroit intending to sell chalk as cocaine to Melvin Beasley.
- Milton and an accomplice, both armed with .45 caliber pistols, completed the transaction at a gas station; Beasley paid about $2,700.
- After learning the drugs were fake, Beasley followed Milton’s vehicle and pulled alongside it at a stoplight.
- During the confrontation, Milton fired a shot into Beasley’s occupied car and the accomplice fired additional shots; Beasley was shot in the head and died.
- A search warrant executed at Milton’s residence led to recovery of Milton’s gun and his arrest; Milton gave a custodial statement admitting the fraudulent deal and that he fired to “scare” Beasley.
- Ballistics could not determine which gun fired the fatal bullet.
- Milton was convicted in federal court of being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(e); at sentencing, the court applied a Guidelines cross-reference to second-degree murder, increasing the sentencing range.
- Milton had been acquitted of homicide-related charges in state court arising from the same death.

## Issues

1. Whether the district court could apply a Sentencing Guidelines cross-reference to second-degree murder based on relevant conduct connected to a death, including conduct underlying a state-court acquittal, and without explicit findings using the term “malice aforethought.”
2. Whether the district court abused its discretion by refusing to make the federal sentence nunc pro tunc so it would effectively run concurrently with a related state sentence.

## Decision

- The Sixth Circuit affirmed Milton’s conviction and sentence.
- The court held that applying the second-degree murder cross-reference based on relevant conduct proved by a preponderance of the evidence did not violate due process, even though the conduct overlapped with charges of which Milton was acquitted in state court.
- Although the court criticized the district court’s failure to make express findings tied to the elements of second-degree murder, it concluded the record supported an implicit finding of malice aforethought.
- The court held the district court did not abuse its discretion in denying nunc pro tunc treatment to align the federal sentence with the state sentence.

## Legal Principles

- At sentencing, a court may consider relevant conduct beyond the offense of conviction, including conduct underlying acquitted charges, if proved by a preponderance of the evidence.
- A Guidelines cross-reference may be applied when the firearm offense results in death, directing the court to the homicide guidelines.
- For the second-degree murder guideline, “malice aforethought” may be shown by extreme recklessness: reckless and wanton conduct that is a gross deviation from reasonable care, permitting an inference the defendant knew of a serious risk of death or serious bodily harm.
- A sentencing court should make findings sufficient to support the cross-referenced offense; failure to use specific terminology is not reversible if the record and adopted facts establish the required elements.
- A district court has discretion to impose a federal sentence concurrently with or consecutively to a state sentence; there is no entitlement to a nunc pro tunc concurrency designation.

## Conclusion

The Sixth Circuit upheld a substantial Guidelines increase for a felon-in-possession conviction by permitting a second-degree murder cross-reference based on relevant conduct proved by a preponderance, including conduct underlying a state-court acquittal, and affirmed the denial of nunc pro tunc concurrency as a discretionary sentencing decision.


United States v. Milton, 27 F.3d 203 (6th Cir. 1994)