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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-13579
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRISTIAN PONCE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:23-cr-00064-RBD-RMN-1
Before ROSENBAUM, BRANCH, Circuit Judges, and BECERRA,∗
District Judge.
BRANCH, Circuit Judge:
∗ Honorable Jacqueline Becerra, United States District Judge for the Southern
District of Florida, sitting by designation.
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2 Opinion of the Court 24-13579
Cristian Ponce pleaded guilty to four charges related to his
drug dealing, including being a felon in possession of a firearm and
conspiracy to distribute drugs. At sentencing, in determining
Ponce’s base offense level, the district court applied a crossreference in U.S.S.G. § 2D1.1(d)(1) (relating to his drug offense) to
U.S.S.G. § 2A1.2 (relating to second-degree murder) because it
determined that Ponce’s offense circumstances would qualify as
murder under federal law. Why? Because as part of the drug
conspiracy, Ponce was involved in a drug-related shootout in a
parking lot that left two men dead: the driver of the vehicle in
which Ponce was a passenger (his co-conspirator) and a rival drug
dealer outside the vehicle.
Ponce claims that his co-conspirator fatally shot the rival
drug dealer in self-defense; therefore, § 2D1.1(d)(1) should not
apply, resulting in a lower base offense level and corresponding
guidelines range. But the district court found that the shooting
furthered Ponce’s drug-dealing conspiracy and that Ponce
negligently placed himself in a circumstance requiring criminal
activity when he brought a firearm to deal drugs on a rival’s turf,
which meant Ponce could not claim self-defense. Ponce challenges
the application of § 2D1.1(d)(1) on appeal. After careful review and
with the benefit of oral argument, we conclude that the district
court appropriately applied the murder cross-reference and affirm.
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I. Background
A. Factual Background1
Ponce and Savier Hernandez (“S. Hernandez”) were
together in a car in a shopping plaza parking lot in Orlando, Florida,
around 2:00 p.m. on November 2, 2022. S. Hernandez was driving
with Ponce in the front passenger seat. Two other men, Kevin
Marrero and Eminem Esquilin, approached the vehicle, with
Esquilin on the passenger side where Ponce was sitting. Esquilin
then backed away from the vehicle, pulled out a firearm, and shot
through the passenger window. A shot hit S. Hernandez; he died
from his injuries five days later. Marrero also shot into the vehicle
at the same time. In a security camera recording of the altercation,
a shot appeared to come from the vehicle and hit Esquilin, who
took off running before collapsing in the parking lot and dying from
his wound. It is unclear who shot first from the video. S.
Hernandez’s vehicle reversed at an “uncontrollable rate of speed”
out of the lot before crashing and flipping a few hundred feet away.
In a recorded 911 call, S. Hernandez can be heard pleading for help,
with Ponce yelling about being in a shootout. Witnesses saw
1 We relay the facts as described in the pre-sentence investigation report
(“PSI”) the probation office prepared before sentencing. Ponce’s only
challenges to the facts in the final PSI were his assertions that Esquilin shot
first and that Marrero was not close enough to hear anything Ponce said.
Otherwise, Ponce challenged only the application of the cross-reference in
§ 2D1.1(d)(1).
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Ponce help S. Hernandez out of the car, then depart the area before
police arrived.
Police executed a search warrant for the vehicle and
discovered two firearms, including one on the floorboard in front
of Ponce’s seat that appeared to have jammed, as well as bags
containing fentanyl and cocaine. DNA tests on the jammed firearm
returned a near-certain match for Ponce and two other individuals,
including a likely match for S. Hernandez. The other firearm had
one round in the chamber and “may have belonged to S.
Hernandez,” according to investigators. Police later interviewed
Marrero and determined that the shootout was over drug-selling
“turf.” Esquilin had told Marrero that he needed “help” with
someone dealing drugs on his turf, so the two men waited in the
parking lot for an hour until Ponce and S. Hernandez arrived.
Marrero confirmed that Esquilin shot S. Hernandez and explained
that he saw S. Hernandez, but not Ponce, with a gun. Marrero also
said that he thought he heard Ponce say “this is mine” in Spanish
during their brief interaction.
A Federal Bureau of Investigation (“FBI”) agent interviewed
a witness about the shooting a year later. The witness provided a
description of the following events from the parking lot on
November 2, 2022:
[A] dark in color Nissan SUV approach[ed] him. The
passenger asked him if he wanted a sample. The
witness stated that he asked for “coke” (cocaine). The
witness was given a small bag when an individual
[Esquilin] came up from behind and pulled him away
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from the passenger side of the vehicle. The witness
heard the individual make a statement to the effect of,
“What are you doing here?” The witness stated that
he began to move away toward a wooded area near
the incident. As the witness was moving away, he
observed a second individual [Marrero] standing a
distance away from the front of the SUV with his face
covered with a firearm. The witness stated that he
heard gunshots from the vehicle and the individual
standing on the passenger side. According to the
witness, the SUV then left the area, and the shooter
from the passenger side had fallen down like he had
been shot.
The witness admitted he was “high” that day and did not
recall everything. The witness identified Esquilin as the man shot
outside the vehicle and explained that Esquilin normally provided
drugs in the area. The witness also told the FBI that the incident
was a dispute over drug-selling “turf,” with the individuals in the
car trying to move in on Esquilin’s area.
About a week after the shooting, police executed another
search warrant that “authorized the search for evidence related to
the homicide and illicit narcotics trafficking.” At Ponce’s residence,
police found Ponce in a car with a firearm that yielded matches to
Ponce’s DNA, as well as 50 small bags containing cocaine. In the
residence, police found a pill press with powdery white residue, a
shoebox with $12,840 in cash, and an AK-47 that yielded a DNA
match to Ponce. The police also found two phones belonging to
Ponce that contained text messages about drug sales and online
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6 Opinion of the Court 24-13579
searches related to the parking lot shooting. S. Hernandez’s
brother, Rodney Hernandez (“R. Hernandez”) was also in the
vehicle with Ponce. Both men were arrested.
Analysis of the phones revealed texts between Ponce and R.
Hernandez from after the shooting and others about drug dealing.
In one text the day after the shooting, R. Hernandez told Ponce,
“That not y’all side tho,” to which Ponce responded, “I know . . . .”
B. Procedural History
As relevant here, a grand jury returned a superseding
indictment charging Ponce with four criminal counts related to
drugs and guns (but not murder): conspiracy to distribute and
possess with intent to distribute controlled substances in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(C) (Count 1); possession with
intent to distribute a controlled substance in violation of 21 U.S.C.
§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2 (Count 2); possession of
a firearm and ammunition in furtherance of drug trafficking in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 3); and felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(8) (Count 5). 2 Ponce entered an open plea of guilty to all
four counts.
The probation office prepared a PSI before sentencing. The
PSI grouped Counts One, Two, and Five together to calculate the
offense level, with a separate guideline range of a consecutive term
2 Counts 4 and 6 of the superseding indictment pertained to charges against R.
Hernandez.
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24-13579 Opinion of the Court 7
of 60 months’ imprisonment for Count Three as 18 U.S.C. § 924(c)
required. The PSI noted that the guideline for a violation of 21
U.S.C. § 846 (Count 1) is U.S.S.G. § 2D1.1. But the PSI observed
that the cross-reference in § 2D1.1 provided for a higher offense
level if the offense circumstances involved conduct that would
constitute murder. 3 And because Ponce had been a passenger in
the vehicle involved in the November 2 fatal shooting over drug
“turf” with “distribution quantities of controlled substances,” the
PSI concluded that application of the murder cross-reference was
appropriate, that the base offense level under the cross-reference
was 38, and that Ponce’s criminal history category was IV. Absent
the cross-reference, Ponce’s total offense level would have been 17
under U.S.S.G. § 2K2.1.
Ponce objected to the murder cross-reference’s application,
arguing that S. Hernandez was a legal firearm possessor who shot
Esquilin in self-defense. Ponce then filed a sentencing
memorandum reiterating that the cross-reference should not apply
because he “was not the aggressor” and “was never seen holding,
pointing, or firing a weapon at anyone” and because S. Hernandez
shot Esquilin in self-defense as a lawfully licensed firearm carrier.
For its part, the government filed a sentencing memorandum
3 Section 2D1.1 requires that if the offense circumstances involved conduct
that would constitute second-degree murder under 18 U.S.C. § 1111 had the
killing occurred in the United States’s territorial or maritime jurisdiction, then
the court should apply U.S.S.G. § 2A1.2 as the base offense level if the resulting
offense level under § 2A1.2 is greater than the one otherwise applicable under
§ 2D1.1. See U.S.S.G. § 2D1.1(d)(1).
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arguing that the murder cross-reference in U.S.S.G. § 2D1.1(d)(1)
applied even if Ponce was not the shooter, because he was involved
in the criminal activity and the shooting occurred within that
activity’s scope and was a reasonably foreseeable act.
The district court held a sentencing hearing and gave both
parties the opportunity to address the murder cross-reference’s
applicability. Ponce argued the shooting was not foreseeable
because there was no evidence showing Ponce and S. Hernandez
were dealing drugs on a rival’s “turf.” Ponce also argued that S.
Hernandez had a concealed weapons permit, which Ponce argued
supported his self-defense argument. The district court disagreed,
commenting that “there’s no such thing as a lawful gun holder in
the presence of narcotics.” Ponce contended that Esquilin had
“lured” him and S. Hernandez to the parking lot as part of
Esquilin’s and Marrero’s plan to harm them, to which statement
the court noted the inherent risks of mixing “guns and drugs”
together. Ponce continued to press the self-defense argument,
though his counsel acknowledged that Ponce “put himself [in the
parking lot] negligently and in a negligent manner.”
The government countered Ponce’s claims, observing that
a witness had received drugs from Ponce and S. Hernandez in the
parking lot, the car contained individually packaged bags of drugs,
and Ponce’s text messages indicated that he was involved in drug
sale activity and knew they were in someone else’s territory. It
argued that for the murder cross-reference to apply, the
government needed to show that the shooting was part of a jointly
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24-13579 Opinion of the Court 9
undertaken criminal activity, in furtherance of the criminal activity,
and reasonably foreseeable in connection with the criminal
activity. And because Ponce and S. Hernandez conspired to
distribute drugs, were involved in a shooting over drug “turf,” and
knew that drug selling was dangerous, the cross-reference was
appropriate. The government also rejected the self-defense
argument, contending that Ponce needed to prove he did not
negligently place himself in a position to use deadly force, an
impossibility since Ponce went armed to the parking lot to sell
drugs.
The court found the murder cross-reference applied. It
explained why:
Primarily, because this is—frankly, it is a
quintessential drug transaction gone bad. It is the
reason for Pinkerton[4] liability. It is the reason for the
cross-reference that when firearms and drugs come
together, the firearms are utilized by the individuals
who are members of the drug trafficking
organization, as was the case here, to protect their
product, to protect their turf, to protect themselves,
and to dissuade or to deter competition from
individuals who might—if you want to deprive them
4 Pinkerton v. United States, 328 U.S. 640, 647–48 (1946) (explaining that
defendants may be held liable for illegal acts of co-conspirators done in
furtherance of the conspiracy that were reasonably foreseeable).
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10 Opinion of the Court 24-13579
of either their money, their drugs, or their customers.
And that’s what happened here.
Whether Mr. Ponce participated in it, whether
Mr. Ponce knew, could have known, should have
known that these other folks were, if I accept your
version of the facts, lying in wait for him and his
accomplice or his co-conspirator, in my view, makes
no difference with respect to the legal application of
the cross-reference.
So I’m going to find that the Government has
met its burden of showing by a preponderance of the
evidence that this was a drug transaction and that that
firearm was used in connection with the facilitation
of the drug transaction; and that as a consequence, it
was reasonably foreseeable that the fire[arm] would
be discharged or used and someone would be hurt or
injured or, in this case, killed.
So the 2D1.1 cross-reference with 2A1.2 is
appropriate under the circumstances. And in my
view, the Probation Office has properly scored Mr.
Ponce.
The court then adopted the PSI in full. After hearing
mitigating evidence from Ponce, the court sentenced Ponce to 240
months’ imprisonment, with concurrent 180-month sentences for
Counts 1, 2, and 5, and a consecutive 60-month sentence for Count
3, with five years’ supervised release to follow. The court noted
Ponce’s objection to the cross-reference.
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Ponce timely appealed.
II. Discussion
Ponce argues on appeal that the district court committed
clear error in applying the murder cross-reference in U.S.S.G.
§ 2D1.1(d)(1) without considering Ponce’s self-defense claim. He
claims the evidence shows “Marrero and Esquilin orchestrated a
premeditated plan to lure and attack Ponce and S. Hernandez in
retaliation over a turf dispute” that forced Ponce and S. Hernandez
to defend themselves. In his view, these events differ from a “runof-the-mill drug transaction” because Marrero and Esquilin
“ambushed” Ponce and S. Hernandez. Thus, he contends that his
justification defense (self-defense) precludes the murder crossreference application and that the district court failed to address
whether self-defense applied. Ponce relies heavily on an out-ofcircuit, non-binding case, United States v. Santiago, 96 F.4th 834 (5th
Cir. 2024), for the proposition that a defendant “engaging in
unlawful conduct . . . does not, by itself, constitute provocation”
that would negate self-defense. He maintains that Santiago
establishes that the district court clearly errs when, as here, it fails
to consider a defendant’s claim of self-defense before applying the
murder cross-reference in § 2D1.1(d)(1). 5
5 We decline Ponce’s invitation to apply Santiago, which involved a drug
dealer’s claim of self-defense after a shootout in a hotel room. 96 F.4th at 840–
41. While the Fifth Circuit there considered a similar standard, it did so in
applying self-defense caselaw from that circuit that is not binding on this
Court. Id. at 850 (applying United States v. Branch, 91 F.3d 699, 718 (5th Cir. USCA11 Case: 24-13579 Document: 52-1 Date Filed: 08/07/2026 Page: 12 of 23
12 Opinion of the Court 24-13579
For its part, the government argues the district court did not
err when it applied the murder cross-reference because the crossreference does not contemplate affirmative defenses like
justification and, in any event, Ponce has failed to show that the
shooting constituted self-defense.
We address the arguments in three parts. First, we
determine the appropriate standard of review. Second, we explain
why Ponce can be held accountable at sentencing for the shooting
of Esquilin. And third, we address Ponce’s claim that self-defense
negates the murder cross-reference.
A. Standard of Review
We generally review the district court’s sentencing
guidelines interpretation and application de novo. United States v.
Dupree, 57 F.4th 1269, 1272 (11th Cir. 2023) (en banc). As for the
district court’s factual findings, we review for clear error. United
States v. Bishop, 940 F.3d 1242, 1250 (11th Cir. 2019). We will not
overturn findings for clear error unless, after reviewing the record
as a whole and making all credibility choices in favor of the
factfinder, the factfinder made a clear mistake. Dupree v. Warden,
715 F.3d 1295, 1301 (11th Cir. 2013). 6 Accordingly, we review the
1996)); see Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1062 (11th Cir. 2010)
(“[W]e consider decisions from other circuits as persuasive authority.”).
6 The government argues that we should review the district court’s decision
only for plain error, because Ponce failed to preserve his self-defense argument
before the district court. See United States v. Puentes-Hurtado, 794 F.3d 1278,
1285–86 (11th Cir. 2015). The government claims that Ponce did not argue
below that Esquilin’s killing was not a killing under circumstances that would USCA11 Case: 24-13579 Document: 52-1 Date Filed: 08/07/2026 Page: 13 of 23
24-13579 Opinion of the Court 13
district court’s legal conclusions de novo and its factual
determinations for clear error. See United States v. Dupree, 57 F.4th
at 1272; Bishop, 940 F.3d at 1250. Ponce concedes that the
“determination that a defendant’s conduct constituted seconddegree murder is a factual determination reviewed for clear error.”
B. Relevant Conduct
We now turn to the district court’s finding that the murder
cross-reference applied to Ponce’s sentence. Ponce maintains that
S. Hernandez was the one who shot Esquilin. 7 But under the
constitute murder. But Ponce did argue, repeatedly, that the killing was selfdefense, and that because self-defense is an affirmative defense absolving the
successful claimant of culpability, Esquilin’s death did not constitute murder.
The government also contends that Ponce did not argue that an affirmative
defense would preclude the murder cross-reference. But again, Ponce made
the self-defense argument below in his sentencing memorandum and at the
sentencing hearing. At most, the slight changes in Ponce’s positions are
shifting arguments. See Gould v. Interface, Inc., 153 F.4th 1346, 1354 (11th Cir.
2025) (“[P]arties can most assuredly waive or forfeit positions and issues on
appeal, but not individual arguments.” (alterations adopted) (emphasis
omitted) (quotations omitted)). But Ponce plainly and repeatedly raised the
core issue—whether the cross-reference for second-degree murder applied—
in his objections to the PSI, his sentencing memorandum, and at his
sentencing hearing. And he raised the same issue on appeal. Thus, Ponce
preserved the issue of whether the district court should have applied the crossreference.
7 The government argues that Ponce may have been the shooter. We need
not resolve this factual dispute. As we will explain, whether S. Hernandez or
Ponce fired the shot does not change our analysis, because even if Ponce did
not pull the trigger, the shooting could still be attributable to him as relevant
conduct under § 1B1.3(a)(1)(B).
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Guidelines’ relevant-conduct provision, U.S.S.G. § 1B1.3(a)(1)(B),
Ponce is liable for S. Hernandez’s reasonably foreseeable actions in
furtherance of the conspiracy. Ponce largely concedes this point
and instead claims that S. Hernandez acted in self-defense, meaning
that Esquilin’s death was not second-degree murder and that the
justification meant the shooting was not a criminal act. However,
before we address that argument, we explain relevant conduct and
the role it plays here in holding Ponce accountable for S.
Hernandez’s actions.
We begin by tracing the steps taken by the district court in
applying a guidelines enhancement for second-degree murder even
though the indictment did not charge Ponce with the offense. One
of the charges to which Ponce pleaded guilty was for violating 21
U.S.C. § 846, which criminalizes both attempt and conspiracy to
commit certain drug offenses. See 21 U.S.C. § 846. At sentencing,
such a violation is subject to U.S.S.G. § 2D1.1. See U.S.S.G. app. A
at 536.
Section 2D1.1(d)(1) contains a cross-reference that applies
“[i]f a victim was killed under circumstances that would constitute
murder under 18 U.S.C. § 1111[ 8] had such killing taken place within
8 Murder under 18 U.S.C. § 1111 “is the unlawful killing of a human being with
malice aforethought.” 18 U.S.C. § 1111(a). Malice aforethought refers to an
“intent, at the time of a killing, willfully to take the life of a human being, or
an intent willfully to act in callous and wanton disregard to the consequences
of human life, but malice aforethought does not necessarily imply any ill will,
spite or hatred towards the individual killed.” United States v. McRae, 593 F.2d
700, 703–04 (5th Cir. 1979); see Bonner v. City of Prichard, 661 F.2d 1206, 1209 USCA11 Case: 24-13579 Document: 52-1 Date Filed: 08/07/2026 Page: 15 of 23
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the territorial or maritime jurisdiction of the United States.”
U.S.S.G. § 2D1.1(d)(1). If the cross-reference applies, the court is to
“apply [U.S.S.G.] § 2A1.1 (First Degree Murder) or § 2A1.2 (Second
Degree Murder), as appropriate, if the resulting offense level is
greater than that determined under [U.S.S.G. § 2D1.1].” U.S.S.G.
§ 2D1.1(d)(1). In this case, applying § 2A1.2 results in a total offense
level of 35, rather than the total offense level of 17 that would apply
without the cross-reference.9 So we must decide whether Ponce is
responsible for a killing that occurred under circumstances that
would constitute second-degree murder.
In evaluating Ponce’s culpability, we consider Ponce’s
relevant conduct, because “once the proper guideline section has
been determined[,] . . . the defendant’s relevant conduct must be
considered in evaluating whether any additional cross-references
must be applied to calculate his base offense level.” United States v.
Belfast, 611 F.3d 783, 826 (11th Cir. 2010). The court can “examine
the relevant conduct contained in the PSI . . . in calculating the
applicable guidelines range,” including relevant conduct not
charged in the indictment. 10 Id. Importantly, relevant conduct
(11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the
former Fifth Circuit handed down before close of business on September 30,
1981).
9 We note that neither Ponce nor the government contend that the shooting
of Esquilin would qualify as first-degree murder; thus, we analyze whether the
shooting qualifies as second-degree murder under § 2A1.2.
10 Under the guidelines,
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includes “uncharged . . . conduct that is proven at sentencing by a
preponderance of the evidence.” United States v. Gyetvay, 149 F.4th
1213, 1239 (11th Cir. 2025) (quotation omitted); see also United States
v. Askew, 193 F.3d 1181, 1183 (11th Cir. 1999) (“The [g]overnment
bears the burden of establishing by a preponderance of the
evidence the facts necessary to support a sentencing
enhancement.”). The court’s consideration of relevant conduct
also means that when a defendant participates in “jointly
undertaken criminal activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert with others,
whether or not charged as a conspiracy),” the guidelines instruct
the court to include the activity in the base offense calculation if
the acts were “(i) within the scope of the jointly undertaken
criminal activity, (ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal
activity.” U.S.S.G. § 1B1.3(a)(1)(B).
As mentioned previously, Ponce concedes that the court
properly determined that the fatal shooting of Esquilin was part of
[r]elevant conduct includes “all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant,” as well as “all reasonably
foreseeable acts and omissions of others in furtherance of ”
jointly undertaken criminal activity, “that were part of the
same course of conduct or common scheme or plan as the
offense of conviction.”
United States v. Gyetvay, 149 F.4th 1213, 1239 (11th Cir. 2025) (quoting U.S.S.G.
§ 1B1.3(a)(1)–(2)).
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24-13579 Opinion of the Court 17
Ponce’s relevant conduct and that the court could consider it when
calculating Ponce’s offense level. U.S.S.G. § 1B1.3(a)(1)(B); see
Belfast, 611 F.3d at 826; Gyetvay, 149 F.4th at 1239. We agree with
Ponce that the district court properly found that the shooting of
Esquilin was within the scope and in furtherance of the drugdealing conspiracy, and that the use of the firearm was reasonably
foreseeable. See U.S.S.G. § 1B1.3(a)(1)(B).
We pause to emphasize the reasonable foreseeability finding
as it will also inform our self-defense analysis. The district court
found that even if Esquilin and Marrero ambushed the car and
Ponce did not expect the altercation that followed, Ponce did not
need to expect the ambush for the use of the weapons he and S.
Hernandez brought to be reasonably foreseeable. After all, there
is a reason Ponce and S. Hernandez brought weapons to deal drugs:
they anticipated violence might be necessary to facilitate their
lawbreaking. See United States v. Pham, 463 F.3d 1239, 1246 (11th
Cir. 2006) (explaining that “guns are a tool of the drug trade” and
“[t]here is a frequent and overpowering connection between the
use of firearms and narcotics traffic” (quotation omitted)).
Thus, Ponce is responsible for any reasonably foreseeable
acts his co-conspirator S. Hernandez performed within the scope
and in furtherance of the conspiracy, including, as relevant here,
the shooting of Esquilin. See U.S.S.G. § 1B1.3(a)(1)(B).
C. Murder Cross-Reference and Self-Defense
Satisfied that Ponce is liable for his co-conspirator’s acts, we
now consider whether Ponce or S. Hernandez shot Esquilin under
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circumstances that would constitute second-degree murder such
that the murder cross-reference applies. We also ask whether a
justification defense applies such that the shooting of Esquilin was
not under circumstances that would constitute second-degree
murder but rather showed the shooter acted in self-defense,
negating the murder cross-reference.
The district court found that Ponce could not claim selfdefense under the facts of this case. Ponce argues that conclusion
was error, asserting that even if he would normally be liable for
Esquilin’s death because it stemmed from the drug dealing
conspiracy, the fact that the shooting was self-defense means that
Esquilin’s death does not qualify as murder. 11 He stands by this
contention despite his counsel’s concession at sentencing that
“Ponce put himself [in the parking lot] negligently and in a
negligent manner.” The government responds that Ponce cannot
claim self-defense under these circumstances. We have not
previously examined whether a self-defense claim could defeat the
cross-reference in U.S.S.G. § 2D1.1(d)(1) at sentencing. We need
not reach this issue in this case. After examining whether the
offense circumstances in this case permit Ponce to avoid the
11 We reject Ponce’s contention that the district court failed to address his selfdefense argument. The court held a sentencing hearing that involved counsel
for both sides arguing about whether self-defense applied. It then concluded
that “whether Mr. Ponce knew, could have known, should have known that
these other folks were . . . lying in wait for him . . . makes no difference with
respect to the legal application of the cross reference. . . . I believe that the
Probation Office has correctly scored under the guidelines.”
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sentence enhancement, we conclude that even if a justification like
self-defense could defeat a sentence enhancement, self defense does
not apply under these facts.
We have recognized justification defenses to otherwise
unlawful conduct in other circumstances. For instance, an
individual charged with a § 922(g)(1) violation for possession of a
firearm by a convicted felon can escape criminal liability if he can
show in possessing the weapon
(1) that the defendant was under unlawful and
present, imminent, and impending threat of death or
serious bodily injury; (2) that the defendant did not
negligently or recklessly place himself in a situation
where he would be forced to engage in criminal
conduct; (3) that the defendant had no reasonable
legal alternative to violating the law; and (4) that
there was a direct causal relationship between the
criminal action and the avoidance of the threatened
harm.
United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000)
(quotation omitted). Deleveaux also provided the basis for our
Circuit’s pattern jury instruction on justification, which largely
reflects the same four elements. See Eleventh Circuit Pattern Jury
Instructions (Criminal Cases) S16 (2025). 12 Both Ponce and the
12 The pattern instructions explain that
[t]o excuse a criminal act, the Defendant must prove by a
preponderance of the evidence:
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20 Opinion of the Court 24-13579
government cite similar versions of the four-factor test contained
in Deleveaux in their briefs. As noted earlier, however, we need not
decide whether a justification defense can defeat a sentence
enhancement because Ponce has not established that either he or
his co-conspirator acted in self-defense; thus even if Ponce could
claim a justification like self-defense, that justification would not
apply here. 13
As an initial matter, our circuit precedent limits a
defendant’s ability to claim self-defense in situations where the
individual claiming the justification defense contributed to the
conflict. See Deleveaux, 205 F.3d at 1297 (requiring that “the
First: That there was an unlawful and present, immediate, and
impending threat of death or serious bodily harm to the
Defendant or another;
Second: That the Defendant’s own negligent or reckless
conduct did not create a situation where the Defendant would
be forced to engage in a crime;
Third: That the Defendant had no reasonable legal alternative
to violating the law; and
Fourth: That avoiding the threatened harm caused the
criminal action.
Eleventh Circuit Pattern Jury Instructions (Criminal Cases) S16 (2025).
13 We also need not reach the government’s argument that Ponce could not
vicariously claim self-defense for S. Hernandez’s actions. Both S. Hernandez
and Ponce brought firearms to deal drugs on a rival’s turf, and thus neither
could show that they did not negligently place themselves in a position
requiring illegal conduct—killing a rival drug dealer.
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24-13579 Opinion of the Court 21
defendant did not negligently or recklessly place himself in a
situation where he would be forced to engage in criminal conduct”
to prevail in a self-defense claim). We have held that evidence that
a defendant “allowed himself to be involved in a heated argument”
could make a justification defense unavailable. United States v.
Moore, 76 F.4th 1355, 1365 (11th Cir. 2023). Likewise, we
concluded that evidence that the defendant “had been drinking and
doing drugs” could contribute to a finding that the defendant
negligently placed himself in a situation to act criminally. Id.
Evidence that the defendant “caused the situation to escalate” may
also suffice to defeat self-defense. Id.
A defendant must meet each of the four factors from
Deleveaux to succeed in his self-defense claim. See Deleveaux, 205
F.3d at 1297. The parties largely agree that this case hinges on the
second self-defense justification factor: whether Ponce negligently
or recklessly placed himself in a situation that would force him to
engage in criminal conduct, which he must show through a
preponderance of the evidence. Id. As mentioned, Ponce’s counsel
all but conceded at sentencing that Ponce could not meet the
second factor because Ponce “put himself [in the parking lot]
negligently and in a negligent manner.” Still, Ponce contends on
appeal that he was not the aggressor and could therefore claim selfdefense. But Ponce cannot show that the district court clearly
erred in finding that he negligently put himself in a situation that
would force him to engage in criminal conduct.
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22 Opinion of the Court 24-13579
Instead, the facts show Ponce and S. Hernandez chose to
bring guns with them to deal drugs on a rival’s turf. 14 Police found
drugs in the car after the shooting. Text messages revealed the
extent of Ponce’s involvement in drug dealing and his awareness
that where he had chosen to deal was contested “turf.” It was not
clear error for the district court to conclude that a preponderance
of the evidence showed this decision to deal drugs there anyway,
made in full awareness that Ponce and S. Hernandez may use the
weapons to facilitate their illegal activities, was at least negligent, if
not reckless.15
That negligence means that self-defense does not apply in
this case. As we have held, actions calculated to escalate tensions,
like drinking or engaging in heated arguments, generally undercut
self-defense arguments. See Moore, 76 F.4th at 1365. Possessing a
firearm while distributing drugs in an area where Ponce knew rival
14 As the district court observed, “no one is licensed to carry a firearm in the
presence of narcotics,” particularly when they are involved in the illegal sale
of such products.
15 As noted previously, the district court’s conclusion that the shooting of
Esquilin was reasonably foreseeable for the purposes of relevant conduct also
informs the analysis of whether Ponce was negligent (as he conceded). In
criminal cases, “a person acts negligently if he is not but ‘should be aware’ of
such a ‘substantial and unjustifiable risk’ . . . in ‘gross deviation’ from the
norm.” Borden v. United States, 593 U.S. 420, 427 (2021) (quoting Model Penal
Code § 2.02(2)(d)). In concluding that the shooting of Esquilin was reasonably
foreseeable, the district court necessarily also concluded that Ponce should be
aware of the risk. And knowing that someone may be shot and killed as part
of one’s actions is a gross deviation from the norm.
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dealers operated is also an escalation. See id. Thus, the district
court did not clearly err in concluding that self-defense did not
apply because Ponce’s negligence meant he could not meet the
second Deleveaux factor and, consequently, that a preponderance of
the evidence showed Ponce’s offense conduct satisfied the murder
cross-reference in § 2D1.1(d)(1). See Deleveaux, 205 F.3d at 1297;
Gyetvay, 149 F.4th at 1239.
III. Conclusion
The district court did not err in applying the murder crossreference in U.S.S.G. § 2D1.1(d)(1) based on Ponce’s involvement in
Esquilin’s death.
AFFIRMED.