10th Circuit overturns sentence for gang shooting because judge incorrectly applied law

The federal appeals court based in Denver overturned a defendant's seven-year sentence related to a gang shooting because the trial judge did not understand Colorado law when he explained why self-defense did not apply.

U.S. District Court Judge Daniel D. Domenico sentenced Lougary Eddington to 84 months in prison for being a felon in possession of ammunition. The charge stemmed from a July 2020 shootout at a Denver liquor store that left one man, Daniel Epperson, dead.

Although Domenico conceded Eddington was "probably the least culpable" of all the men firing weapons at each other that night, he believed Eddington was a "mutual combatant" who could not claim self-defense. Consequently, Domenico increased Eddington's sentencing calculation.

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined Domenico was wrong that Eddington's likely knowledge a gunfight would happen with rival gang member Roy Fernandez equated to "mutual combat" as Colorado law defines it.

"Nowhere in the record did the district court make a factual finding that Eddington and Fernandez entered into an agreement to fight before the fight commenced, as is required under Colorado law," wrote Senior Judge Mary Beck Briscoe in the April 24 opinion. "In fact, it does not appear that the district court was aware that it needed to make such a finding."

The panel also decided Domenico incorrectly used Eddington's unlawful possession of a firearm, for which he was never charged, to justify the offense level.

The night of July 1, 2020, Eddington and Zyaire Williams, who were part of the Eastside Crips gang, encountered Fernandez at a liquor store near East 29th Ave. and North Downing St. Fernandez belonged to a different gang and appeared to have heated words with Williams in the store, according to surveillance footage. Soon afterward, Williams allegedly asked Eddington if he was ready for what was about to happen.

With Eddington standing near the store's entrance, the other men — Williams, Fernandez and now Epperson — began firing their guns. Eddington took cover, then exchanged gunfire with Fernandez. Epperson, who belonged to the same gang as Williams and Eddington, was shot and killed.

Federal prosecutors charged the three surviving men with being felons in possession of ammunition. No murder charges were brought for Epperson's death. Because the government never recovered Eddington's gun, it could not prove the weapon had a connection to interstate commerce and, therefore, he was not charged for possessing a prohibited firearm.

Eddington pleaded guilty and appeared before Domenico in March 2022 for sentencing. The judge appeared somewhat sympathetic, saying Eddington was "probably the least culpable" and "could have reasonably been in fear for his life."

However, Domenico did not believe Eddington could claim self-defense because he was a "mutual combatant" with Fernandez.

"I do think it seems most likely that he knew there was a shootout going on and he chose to get involved with it," Domenico said. "He knew that there was a shootout between his friends and someone else, and that is, to me, sort of the definition of mutual combat, in which case you are not entitled to the self-defense defense."

Domenico also believed an increased offense level applied because Eddington illegally possessed the ammunition "in connection with" another felony offense: possessing a gun in violation of Colorado law, even though Eddington was never charged.

On appeal, Eddington took issue with how Domenico calculated his sentencing level. Specifically, he argued that Colorado law requires a "clear cut" agreement at the outset to engage in mutual combat.

"The judge, as I read it, is thinking when you willfully engage in an altercation, that’s mutual combat," said defense attorney Robert T. Fishman during oral arguments in March. "It wouldn’t surprise me at all if the law is consistent with that view in other states. But it quite clearly is not the law in Colorado."

Agreeing, the 10th Circuit judges slammed Domenico's handling of the "mutual combatant" issue.

"I don’t have the confidence," said Judge Veronica S. Rossman, "that this district court understood what Colorado law requires."

Domenico "didn’t make any finding that there was a clear cut agreement between anyone because the district court didn’t know what the law was," added Judge Nancy L. Moritz.

Assistant U.S. Attorney J. Bishop Grewell defended Domenico, pointing out he was the "longest-serving solicitor general in Colorado history" prior to his appointment to the bench.

But Rossman pushed back, saying she was concerned Domenico and the government used Eddington's gang involvement "as a proxy for an agreement" to fight.

Briscoe, in the panel's opinion, wrote that Domenico improperly lowered the standard for mutual combat from a "clear cut agreement" between Eddington and Fernandez to, instead, Eddington's willingness to join a fight others had started.

She also noted Domenico erroneously based Eddington's sentence on the possession of ammunition "in connection with" his illegal gun possession. Under the sentencing guidelines, the question is whether the ammunition "facilitated" the uncharged gun crime.

"It is unclear how possession of ammunition facilitates possession of a firearm," Briscoe wrote, elaborating that the first act does not "make easier" the second.

The panel ordered Domenico to resentence Eddington without the improperly increased offense level.

The case is United States v. Eddington.