United States of America, Plaintiff-Appellee-Cross-Appellant v. Gary Dean McInnis Defendant-Appellant-Cross-Appellee

Defendant-Appellant Gary Dean Mclnnis (“Mclnnis”) was convicted by a jury for the use of force to interfere with housing rights on account of race in violation of 42 U.S.C. § 3631 (a) (1988) (Count 1) and for the use of a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c) (1988) (Count 2). The district court sentenced Mclnnis to twenty-four (24) months imprisonment on Count One and sixty (60) months imprisonment on Count Two. On appeal Mclnnis challenges the sufficiency of the evidence to support his conviction and whether certain evidence was properly admitted at trial. On cross-appeal, the Government challenges the district court’s application of the federal Sentencing Guidelines in calculating Mclnnis’ sentence on the civil rights charge. We affirm the conviction and remand on the Government’s cross-appeal.

I.

The evidence presented at trial showed the following: Mclnnis is a resident of Hesperia, California. His residence is located directly north of a residence occupied by the Kellers, an African-American family. The homes are about three-fourths of a mile apart, separated by a vacant lot. On the evening of January 26, 1990, Mclnnis fired two shots from…