                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4335



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHONTI YAVESSE LILLY,

                                             Defendant - Appellant.



                             No. 06-4361



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

           versus


CHONTI YAVESSE LILLY,

                                              Defendant - Appellee.


Appeals from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:05-cr-01041-RBH-2)


Argued:   December 1, 2006                   Decided:   May 17, 2007
Before MOTZ and TRAXLER, Circuit Judges, and David A. FABER, Chief
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Ray Coit Yarborough, Jr., Florence, South Carolina, for
Appellant/Cross-Appellee.   Thomas Ernest Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Criminal Division, Washington, D.C., for
Appellee/Cross-Appellant.   ON BRIEF: Reginald I. Lloyd, United
States Attorney, Rose Mary Parham, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South
Carolina, for Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     On November 10, 2005, Chonti Yavesse Lilly pled guilty to

being    a   felon   in   possession   of   a   firearm   and    ammunition    in

violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2).                 The

district court, pursuant to U.S. Sentencing Guidelines Manual §

2K2.1(c), applied the cross-reference to the homicide guidelines

found at section 2A1.1.           The court granted Lilly a variance

sentence, however, and ordered that his federal sentence run

concurrently to a state sentence imposed for a cocaine trafficking

conviction.     The defendant appeals the murder cross-reference, and

the government appeals the variance sentence and the imposition of

a concurrent sentence.        We affirm the district court’s sentence.



                                       I.

        On November 9, 2004, Lilly, his brother, Kwame, and his uncle,

Junior, got into an argument with Kelvin Platt and others at a

residence in Wallace, South Carolina.           The police responded to the

scene, and Kwame and Junior fled to some nearby woods.                    Lilly

remained, and threatened Platt by saying, “You wait until the

police leave and see what happen [sic] to you.”                 (Joint Appendix

(JA) 110.)     Lilly added that he was “going to burn [Platt]” when

the police left.          (Id. at 110-11.)      The police advised the two

groups to stay away from each other, and then left the area.




                                        3
       After the police left, Kwame and Junior came out of the woods.

Kwame brandished a gun, and told Lilly to get Platt.                Lilly drew a

.380   caliber     pistol   and   pointed     it   at   Platt’s   head.     Platt

retreated to safety, but he soon returned to challenge Lilly to a

“fair fight” without weapons.         (Id.)    Lilly agreed, and he laid his

gun on top of his coat.      Lilly and Platt started fighting, but when

Platt began winning the fight, Junior told Kwame to “go handle the

situation.”      (Id.)   Kwame picked up Lilly’s gun and shot Platt in

the head, killing him.

       Lilly pled guilty on November 10, 2005, to being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. §

922(g)(1)    and    18   U.S.C.   §   924(a)(2).         While    Lilly   awaited

sentencing for his federal crime, a South Carolina state court

sentenced Lilly to five years imprisonment for a May 2005 cocaine

trafficking conviction.

       At Lilly’s federal sentencing hearing on March 15, 2006, the

district court applied the cross-reference to first-degree murder

to determine Lilly’s guideline range. This resulted in a guideline

range of 360 months to life.            However, because the underlying

offense carried a statutory maximum of ten years, Lilly’s guideline

range became 120 months.

       The district court granted Lilly’s motion for a variance

sentence, reasoning that Lilly’s brother actually killed Platt,

Platt was much bigger than Lilly, and Platt contributed to his own


                                       4
death by voluntarily returning to fight Lilly.      The court then

sentenced Lilly to 102 months and ordered that his federal sentence

run concurrently to his state drug sentence.



                                 II.

     We first address whether the district court erred in applying

U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(B) and cross-

referencing the first-degree murder guideline, U.S. Sentencing

Guidelines Manual § 2A1.1, to enhance Lilly’s sentence.        “In

assessing a challenge to a sentencing court's application of the

Guidelines, we review the court's factual findings for clear error

and its legal conclusions de novo.”    United States v. Allen, 446

F.3d 522, 527 (4th Cir. 2006).



                                 A.

     Lilly first argues that the district court erred by cross-

referencing the homicide guidelines.   He contends that his brother

Kwame and his uncle Junior jointly undertook to kill Platt after he

abandoned his gun, and that he did not participate in their

criminal activity.   The sentencing court found that Lilly induced

his brother to murder Platt by pointing the gun at Platt’s head,

threatening Platt’s life, and then placing the gun where it was

readily available to his brother.      We agree with the district

court.


                                  5
     When a defendant possesses a firearm in connection with

another crime, or if a defendant transfers a firearm with the

knowledge or intent that the gun will be used in another crime, and

that crime results in death, sentencing courts must cross-reference

the homicide guidelines to determine the defendant’s base offense

level.   U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(B).

     A district court determines the appropriate cross-reference

based on the following:

     (A) all acts and omissions committed, aided, abetted,
     counseled, commanded, induced, procured, or willfully
     caused by the defendant; and, (B) in the case of a
     jointly undertaken criminal activity[,]. . . all
     reasonably foreseeable acts and omissions of others in
     furtherance of the jointly undertaken criminal activity.

Id. at § 1B1.3(a)(1)(A)-(B).     A defendant may be held liable for

another person’s conduct under both subsections (a)(1)(A) and

(a)(1)(B).    Id. at § 1B1.3 cmt. n.2, illus. b(1).

     The evidence clearly supports a finding that Lilly induced his

brother Kwame to murder Platt.    See id. at § 1B1.3(a)(1)(A).            Lilly

induced Platt’s murder by previously threatening Platt’s life,

pointing his gun at Platt’s head, and then making the gun readily

available to his brother before fighting Platt.

     The evidence also shows that Lilly reasonably could have

foreseen that his brother might murder Platt in furtherance of

their joint criminal activity.             See id. at § 1B1.3(a)(1)(B).

Lilly, Kwame, and Junior were engaged in joint criminal activity -

threatening   Platt’s   life.    As       stated   above,   Lilly   and   Kwame

                                      6
threatened Platt’s life, and Lilly pointed his gun at Platt’s head.

Lilly then agreed to fight Platt, who was much bigger than Lilly.

Before fighting Platt, Lilly placed his gun where it was readily

available to Kwame.        Given their differences in stature, Lilly

likely could have concluded that Platt might have an advantage over

him in a fight.     By placing his gun where it was readily available

to his brother, Lilly either knew, or should have known, that his

brother    would   intervene     if   Platt   started   to   win   the     fight.

Therefore, Lilly could have reasonably foreseen that his brother

might use his gun to kill Platt in furtherance of their joint

criminal    activity.    Thus,    the   district     court   properly      cross-

referenced the homicide guidelines.



                                        B.

     Lilly next argues that there is no evidence from which the

sentencing    court     could    have    concluded    that   he    acted     with

premeditation and malice.             Lilly suggests that, at most, the

evidence supports only a finding of voluntary manslaughter.

     To sentence a defendant based on the first degree murder

guideline, a court needs to find by a preponderance of the evidence

that the defendant acted with malice and premeditation.                  See 18

U.S.C. § 1111(a).     Second degree murder requires a finding of only

malice.    Id.     Voluntary manslaughter is the unlawful killing of




                                        7
another without malice and “upon a sudden quarrel or heat of

passion.”   Id. at § 1112.

     The evidence clearly supports a finding of malice. Malice may

be established by reckless and wanton conduct, or conduct that is

a gross deviation from a reasonable standard of care.        United

States v. Fleming, 739 F.2d 945, 947-48 (4th Cir. 1984).       Such

conduct shows “that [the] defendant was aware of a serious risk of

death or serious bodily harm.”   Id.   A court can infer malice when

a person uses a weapon “in a manner as may be expected naturally

and probably to cause death.” United States v. Celestine, 510 F.2d

457, 459 (9th Cir. 1975).    Lilly pointed a gun at Platt’s head,

Lilly and Kwame threatened Platt’s life, and Kwame shot Platt in

the head with a gun.     These actions show reckless and wanton

conduct, and thus the district court properly found that Lilly

acted with malice.

     The facts also support a finding of premeditation.   Lilly and

Kwame threatened Platt’s life on the night in question.       Lilly

pointed his gun at Platt’s head, but then agreed to fight him

“fairly.”   However, Lilly placed his gun where it was readily

available to Kwame, who stood just feet away.      When Platt began

winning the fight, Kwame picked up Lilly’s gun, walked over, and

shot Platt in the head. Given these facts, it was reasonable for

the district court to conclude that Lilly and Kwame always intended




                                 8
to murder Platt. Thus, the court properly found that premeditation

existed.

     Because Lilly acted with premeditation and malice, we find

that the district court did not err in cross-referencing the first

degree murder guideline, and we affirm this part of the court’s

sentence.



                                    III.

     The second issue is whether the district court erred in

imposing    a    variance    sentence    based        upon   the   nature      and

circumstances     of   the   offense,    and     in    ordering    it    to    run

concurrently to a state sentence.

     After United States v. Booker, 543 U.S. 220 (2005), sentencing

courts must use a multi-step process in determining a defendant’s

sentence.       First, “after making appropriate findings of fact,

[sentencing     courts]   must   initially     calculate     the   appropriate

guideline range.” United States v. Hampton, 441 F.3d 284, 287 (4th

Cir. 2006).     Then, the court must determine whether a sentence in

that range “serves the factors set forth in § 3553(a).”                  Id.   If

the sentence does not serve the factors set forth in § 3553(a), the

court should determine “whether a traditional upward or downward

departure under the guidelines would be appropriate.”                   Id.; see

also United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).

Finally, if a downward or upward departure is not available, “a


                                     9
court may impose a variance sentence . . . provided that the

sentence falls within the statutory limits for the underlying

offense     and   is   reasonable.       But   the   sentencing    court   must

adequately explain the reasons for the variance.”                 Hampton, 441

F.3d at 287 (internal citations and quotations omitted); Moreland,

437 F.3d at 287.       The reasons for the variance must be tied to the

factors set forth in 18 U.S.C. § 3553(a).              Hampton, 441 F.3d at

287.    Because concurrent sentences reduce the amount of time a

defendant serves overall for an underlying federal conviction, they

are analyzed as variance sentences.            See United States v. Curry,

461 F.3d 452, 460-61 (4th Cir. 2006).

       We   review     a   post-Booker     sentence    for   reasonableness.

Moreland, 437 F.3d at 433.           Sentences outside of the advisory

guideline range will be found unreasonable and vacated if the

sentencing court fails to give adequate reasons for imposing the

variance or relies upon improper factors.            United States v. Perez-

Pena, 453 F.3d 236, 241 (4th Cir. 2006).                “Generally, if the

reasons justifying the variance are tied to § 3553(a) and are

plausible, the sentence will be deemed reasonable.”            Moreland, 437

F.3d at 434.

       The district court granted Lilly a variance sentence from 120

months to 102 months and ordered the federal sentence to run

concurrently to Lilly’s state drug sentence.             At the time of his

federal sentencing, Lilly was predicted to be released from state


                                      10
custody on November 8, 2007.    Thus, the imposition of a concurrent

sentence effectively reduced Lilly’s federal sentence by another

twenty months.

     The court granted the variance because of the nature and

circumstances of the offense.     18 U.S.C. § 3553(a)(1). The court

reasoned that a variance was warranted because (1) the victim

contributed to his own death by returning to fight Lilly after

Lilly had already pointed a gun at him; (2) the victim was much

larger than Lilly; and (3) Lilly’s brother actually fired the shot

that killed the victim.

     The government contends that the district court did not

provide enough detail before granting the variance and ordering the

sentence to run concurrently to Lilly’s state sentence.    However,

the district court’s statements at the sentencing hearing make it

clear that the court sufficiently considered the § 3553(a) factors.

See United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006)(“To

establish the reasonableness of a sentence, a district court need

not explicitly discuss every § 3553(a) factor on the record.

Rather, the record must reflect that the court adequately and

properly considered the § 3553(a) sentencing factors.” (citations

omitted)).   In addition, the court adopted, on the record, the

findings of the Presentence Investigation, which detailed Lilly’s

criminal history and relevant conduct.     Thus, the district court

implicitly considered all of the § 3553(a) sentencing factors


                                  11
before imposing a variance sentence.   See Hampton, 441 F.3d at 289

(Motz, J., concurring)(stating that courts must not give excessive

weight to the nature and circumstances of the offense at the

expense of the other factors in § 3553(a), such as a defendant’s

prior convictions and pending charges).

     We therefore conclude that the district court’s reasoning was

sufficient for imposing the variance sentence, and in ordering the

variance sentence to run concurrently to the state sentence.



                               IV.

     For the foregoing reasons, we affirm the district court’s

sentence.

                                                          AFFIRMED




                               12
