                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4309



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


TERRY WAYNE SEALEY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:05-cr-00901-RBH-1)


Submitted:   September 27, 2006           Decided:   October 24, 2006


Before WILLIAMS, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Alfred W. Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Terry Wayne Sealey pled guilty to possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was

sentenced to a term of ninety-seven months imprisonment.                Sealey

appeals his sentence, contending that the district court erred in

applying a cross reference to U.S. Sentencing Guidelines Manual

§   2A2.1(a)(2)    (2005)   (Assault    with   Intent     to   Commit   Murder;

Attempted   Murder),    rather   than    to    USSG   §    2A2.2   (Aggravated

Assault), and in refusing to depart downward based on the victim’s

conduct, USSG § 5K2.10, p.s.      We affirm.1

            In October 2004, Sealey and his friend, Charles Cribb,

went to the home of Terrance Ford because they believed Ford had

acquired drugs that had been stolen from Sealey.                    When they

confronted Ford outside his house and asked him to come with them,

Ford displayed a knife and refused to go with them.                A few days

later, Sealey and Cribb were at a club when Ford stopped there.

Sealey approached Ford in the parking lot, and an argument followed

during which Ford drew a .22 caliber pistol.              Sealey retreated to

his vehicle.      Cribb got a .22 caliber rifle out of the trunk of

Sealey’s vehicle and handed it to Sealey, who fired repeatedly at

Ford and hit him in the abdomen, buttocks, right hand, left wrist,




      1
      Sealey also contested the district court’s refusal to depart
downward, but in a letter to this court, has abandoned the issue.

                                  - 2 -
and right thigh.2             Ford was taken to the hospital, where he

underwent surgery for serious abdominal injuries.

                 The guideline applicable to the offense of conviction was

USSG       §    2K2.1.      However,    the   probation      officer    recommended

application of the cross reference in § 2K2.1(c)(1), which directs

that, under USSG § 2X1.1, when the firearm was used in connection

with an attempt, the base offense level and adjustments for the

intended offense should be used if the resulting offense level is

higher.         The probation officer applied USSG § 2A2.1 (Attempted

Murder).        Under § 2A2.1(a)(2), the base offense level was 27.              The

probation officer added a four-level enhancement under subsection

(b)(1)(A)         because    the    victim    sustained   permanent       or   life-

threatening injuries.              This calculation resulted in an adjusted

offense level of 31.          With a three-level adjustment for acceptance

of responsibility, the final offense level was 28.3                    Sealey was in

criminal        history     category   III,   which   gave    him   a   recommended

advisory guideline range of 97-121 months, reduced to 97-120 months

because the statutory maximum for the § 922(g) offense was ten

years.         See USSG § 5G1.1(c)(1).

                 Sealey objected to application of the cross reference to

§ 2A2.1.         At the sentencing hearing, defense counsel argued that


       2
      According to the presentence report, Sealey fired at Ford at
least eleven times.
       3
      Had the cross reference not been applied, the final offense
level would have been 21.

                                         - 3 -
the cross reference should be to the guideline for aggravated

assault because Ford had displayed a gun first. The district court

determined   that   the   uncontested    facts   established   malice

aforethought on Sealey’s part, and an intent to commit murder. The

court then decided that it would not depart downward based on

Ford’s conduct, as Sealey requested, but that it would consider the

possibility that Ford’s conduct might have contributed, although

not significantly, to provoking Sealey’s attempted murder of Ford.

After considering the advisory guidelines and the factors set out

in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the court

imposed the minimum guideline sentence of ninety-seven months.

           On appeal, Sealey argues that the district court erred by

making a cross reference to the guideline for attempted murder,

§ 2A2.1, instead of to the guideline for aggravated assault,

§ 2A2.2.

           When the facts are not contested, the issue is a legal

one and our review is de novo.    United States v. Butner, 277 F.3d

481, 488 (4th Cir. 2002).   Sealey argues that the cross reference

to the guideline for attempted murder was error because there was

no evidence that he intended to kill Ford apart from his prior

confrontation with Ford over the missing drugs and the number of

shots he fired at Ford.4     He contends that the only reasonable


     4
      He   also   suggests  that   the   government   mistakenly
misrepresented the facts by stating that Sealey went to the club
looking for Ford. Regardless of whether the government was clear

                                 - 4 -
inference is that he acted in response to Ford’s display of a

firearm.        He relies on two cases where the aggravated assault

guideline was applied even though, in his view, the evidence

established actual malice.              In United States v. Terry, 86 F.3d 353

(4th    Cir.        1996),    two     co-defendants     were        convicted      of   the

assimilated Virginia crime of shooting into an occupied vehicle.

The victim was not injured, but his vehicle sustained considerable

damage.       Id. at 355.     The issue the defendants raised on appeal was

whether       the    court    should    have      applied    USSG    §   2B1.3(a),      the

guideline for property damage or destruction.                   Terry thus provides

no guidance in this case.               Sealey also relies on dicta in United

States v. Goodman, No. 94-9663, 1995 WL 58558 (4th Cir. Feb. 14,

1995) (unpublished).           The case has no precedential value and would

not be helpful if it did, as it does not establish that § 2A2.2

should have been applied in Sealey’s case.

               Murder is defined in 18 U.S.C.A. § 1111 (West Supp. 2006)

as     “the     unlawful      killing        of   a   human    being       with     malice

aforethought.”         To show that malice is present, the government is

not required to show an intent to kill or injure.                     United States v.

Williams,       342    F.3d    350,    356    (4th    Cir.    2003)      (citing    United

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

“malice aforethought may be established by evidence of conduct


about the sequence of events, the district court reviewed the
presentence report carefully, and stated the facts accurately in
making its ruling.

                                          - 5 -
which    is   reckless   and   wanton   and   a   gross   deviation    from   a

reasonable standard of care, of such a nature that a jury is

warranted in inferring that defendant was aware of a serious risk

of death or serious bodily harm.”             Id. (internal quotation and

citation omitted).

              In this case, Sealey’s conduct in shooting Ford multiple

times was at best reckless and wanton, and demonstrated a gross

deviation from a reasonable standard of care.             The district court

did not err in inferring that Sealey was aware that his conduct

created a serious risk that Ford would be killed, and in therefore

applying the cross reference to § 2A2.1(a)(2).

              We therefore affirm the sentence imposed by the district

court.    We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                      AFFIRMED




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