                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 01-4135
JOHN JOHNSON DANIEL,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
      for the Southern District of West Virginia, at Beckley.
             Charles H. Haden II, Chief District Judge.
                           (CR-00-175)

                      Submitted: July 31, 2001

                      Decided: August 27, 2001

        Before MOTZ and TRAXLER, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Mary Lou Newberger, Acting Federal Public Defender, Brian J.
Kornbrath, Assistant Federal Public Defender, Charleston, West Vir-
ginia, for Appellant. Charles T. Miller, United States Attorney, John
L. File, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
2                      UNITED STATES v. DANIEL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   John Johnson Daniel pled guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C.A. § 922(g)(1) (West 2000).
He appeals the fifty-one month sentence he received, contending that
the district court erred in finding that he used the firearm in connec-
tion with another felony offense and enhancing his sentence accord-
ingly. U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2000). We
affirm.

   Daniel fired four rifle shots from the back porch of his home after
he had an altercation with a neighbor, Hugh Gentry, who had told
Daniel’s companion that Daniel had spent the previous night with
another woman. Gentry was not present, having gone home a few
minutes earlier, after Daniel tried to hit him and threw a drink at him.
Two neighbors reported seeing Daniel fire the gun. One said he was
firing in the direction of Gentry’s house. The other said Daniel’s rifle
was "angled into the air." The police discovered only one bullet hole
in the awning over Daniel’s porch and four shell casings on the floor.
Daniel was charged in state court with wanton endangerment, but the
charges were later dismissed.

   The probation officer recommended a four-level enhancement
under USSG § 2K2.1(b)(5) for use of the firearm in connection with
another felony, that of wanton endangerment involving a firearm, in
violation of West Virginia Code Ann. § 61-7-12 (Michie 2000).*
Daniel objected that Gentry’s house was not visible and was impossi-
ble for him to hit from his back porch. He further argued that shooting
into the air from the porch did not rise to the level of wanton endan-

  *The statute provides that, "[a]ny person who wantonly performs any
act with a firearm which creates a substantial risk of death or serious
bodily injury to another shall be guilty of a felony . . . ."
                        UNITED STATES v. DANIEL                          3
germent. However, the district court determined that the enhancment
was warranted. The court found that firing a rifle in a densely popu-
lated residential area at 2:00 o’clock in the afternoon created a sub-
stantial risk of death or serious bodily injury to people in the area,
whether or not Daniel was shooting at any particular person. Daniel
appeals, contending that the district court erred in failing to distin-
guish between a possibility of harm and a substantial risk of harm.

   The district court’s determination that Daniel’s conduct amounted
to wanton endangerment under W. Va. Code Ann. § 61-7-12 is a legal
one and is thus reviewed de novo. United States v. Daughtrey, 874
F.2d 213, 217 (4th Cir. 1989). Because there is no case law interpret-
ing the West Virginia statute, he relies on cases interpreting similar
laws in other states for the principle that a "substantial" risk must be
an actual risk, not merely a possible risk. See, e.g., Elliot v. State, 560
N.E.2d 1266, 1267 (Ind. Ct. App. 1990) (reversing conviction for
criminal recklessness where defendant fired five pistol shots over
uninhabited fields and woodlands bordering his business when no one
was in his line of fire or in adjacent field, and no evidence was pre-
sented that anyone was in the woods); Boushehry v. State, 648 N.E.2d
1174, 1177 (Ind. Ct. App. 1995) (reversing conviction for criminal
recklessness where defendant induced another person to shoot at
geese across a vacant lot in the direction of a public road but there
was no evidence anyone was in or near the line of fire).

   Daniel maintains that his conduct did not create a "substantial" risk
of harm to others, although he may have created a possible risk,
because no one was in or near his line of fire. The government
responds that merely pointing or threatening the use of a firearm may
constitute wanton endangerment and thus warrants the enhancement.

   This case presents a close question. Accepting Daniel’s contention
that he shot into the air, the court found that Daniel’s conduct was
inherently dangerous and carried a substantial risk of death or injury.
According to uncontested information in the presentence report, Dan-
iel had stayed out drinking the night before and had continued drink-
ing after he returned home. He was angry at Gentry, had just had an
altercation with Gentry, and was firing his rifle to vent his anger. The
fact that Daniel shot a hole in the awning over his own porch seems
to evidence his intoxication and lack of forethought, as well as a lack
4                      UNITED STATES v. DANIEL
of concern over the consequences of his actions. We find that a gun
being fired by a person in this condition presents a substantial risk of
death or serious injury to his close neighbors. Therefore, we affirm
the sentence. See United States v. Swann, 149 F.3d 271, 277 (4th Cir.
1998) (appeals court may affirm for any reason appearing on the
record).

  We therefore affirm the sentence. 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
