                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         March 30, 2004
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 03-10651
                           Summary Calendar



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

JOHNNY JOSE RAMIREZ

                      Defendant - Appellant

                        --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                     USDC No. 5:02-CR-114-ALL-C
                        --------------------

Before KING, Chief Judge, and EMILIO M. GARZA and BENAVIDES,
Circuit Judges.

PER CURIAM:*

     Johnny Jose Ramirez appeals his sentence imposed following

his guilty plea conviction for being a felon in possession of a

weapon.    Ramirez was sentenced to the maximum statutory sentence

of 120 months, to be followed by a three-year term of supervised

release.

     Ramirez ar gues that the district court misapplied the

sentencing guidelines by enhancing his offense level pursuant to

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 03-10651
                                -2-

U.S.S.G. § 2A1.2, the guideline for the offense of second degree

murder, because the district court did not find and the evidence

did not show that he acted with malice.

      Ramirez argues that because the application of § 2A1.2

dramatically increased his guideline sentencing range, a higher

standard of proof than the preponderance of the evidence was

required to prove the sentencing factors.   Ramirez’s 120-month

sentence was not a dramatic departure from the guideline sentence

that could have been imposed if the second degree murder

guideline had not been considered.   Therefore, the district court

did not err in failing to require a higher standard of proof than

a preponderance of the evidence at sentencing.    See United States

v. Mergerson, 4 F.3d 337, 343 (5th Cir. 1993).

     Ramirez concedes that his conduct did not constitute

voluntary manslaughter because he did not act in the heat of

passion or anger.   Because Ramirez was a felon illegally in

possession of a firearm at the time of the offense, an unlawful

act, his conduct did not constitute involuntary manslaughter.

See 18 U.S.C. § 1112(a).

     In the absence of evidence that Ramirez believed that his

life was in danger or that he was threatened with serious bodily

harm by the approaching Prado, Ramirez’s decision to shoot Prado

exhibited extreme recklessness and wanton disregard for human

life sufficient to display malice aforethought.     Lara v. U.S.

Parole Comm’n, 990 F.2d 839, 841 (5th Cir. 1993).    Ramirez’S
                           No. 03-10651
                                -3-

failure to testify at sentencing left unrebutted the reliable

evidence in the presentence report that Prado was unarmed during

the incident and did not present a threat of serious bodily harm

to Ramirez.   Because the preponderance of the evidence showed

that Ramirez committed second degree murder, the district court

did not clearly err in relying on § 2A1.2 at sentencing.

     AFFIRMED.
