                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4218


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LOKHEIM JERALLE CAMPBELL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.      Bruce H. Hendricks, District
Judge. (4:15-cr-00487-BHH-1)


Submitted:   September 22, 2016           Decided:   October 13, 2016


Before WILKINSON, SHEDD, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. William N. Nettles,
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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Lokheim Jeralle Campbell pled guilty to possession of a

firearm by a convicted felony, 18 U.S.C. § 922(g)(1) (2012), and

was sentenced to 120 months in prison.                 He now appeals, raising

one issue.     We affirm.

                                         I

      The    record      reflects   that           Campbell     agreed      to   sell

prescription     drugs    to   Cyril     Lowery.          While    the    men    were

negotiating the sale of the drugs, Campbell pulled out a handgun

to rob Lowery.         When Lowery began to flee, Campbell fired at

Lowery several times, striking him once in each foot.                            Five

shell casings were recovered from the scene.

      Lowery’s probation officer applied the cross-reference for

attempted first degree murder and assigned base offense level

33.   See U.S. Sentencing Guidelines Manual § 2A2.1(a)(1) (2015).

Two   levels   were    added   because       the    victim,     Lowery,   sustained

serious bodily injury, USSG § 2A2.1(b)(1)(B).                   Three levels were

subtracted based on acceptance of responsibility, USSG § 3E1.1.

Campbell’s     total   offense   level       was    32,   his    criminal    history

category was III, and his Guidelines range was 151-188 months.

He was statutorily subject to a maximum term of ten years in

prison.      See 18 U.S.C. § 924(a)(2) (2012).                   Accordingly, his

Guidelines range was 120 months.             See USSG § 5G1.1(a).



                                         2
    At     sentencing,       Campbell    objected    to    application    of   the

cross-reference, arguing that he intended to rob but not to kill

Lowery.    The district court overruled the objection.

                                         II

    Campbell contends that the district court erred when it

applied the cross-reference for attempted first degree murder.

When evaluating Guidelines calculations, we review the district

court’s legal conclusions de novo and its factual findings for

clear error.     United States v. Cox, 744 F.3d 305, 308 (4th Cir.

2014).

    The Guidelines provide for a base offense level of 33 “if

the object of the offense would have constituted first degree

murder,”    as     defined     in   18    U.S.C.     § 1111     (2012).        USSG

§ 2A2.1(a)(1) & cmt. n.1.           Section 1111, in turn, defines first

degree murder as “the unlawful killing of a human being with

malice aforethought” — that is, “[e]very murder perpetrated by

. . . willful, deliberate, malicious, and premeditated killing;

or committed in the perpetration of, or attempt to perpetrate,

any . . . robbery.”           18 U.S.C. § 1111(a).            Thus, a defendant

commits    first     degree     murder        if   the    killing   was   either

premeditated or committed during the course of a felony, such as

robbery.    See United States v. Morales-Machuca, 546 F.3d 13, 22

(“18 U.S.C. § 1111 was intended to adopt the felony murder rule,

and for a stated felony the malice element is satisfied by the

                                         3
intent to commit the unlawful felony” (internal quotation marks

omitted)).

      We conclude that the district court properly applied the

cross-reference.       While attempting to rob Lowery, Campbell shot

at   him   five   times,   hitting   him   twice.     Campbell   could   have

killed Lowery during the course of the robbery; had Lowery died,

Campbell would have been guilty of felony murder.

                                     III

      We   therefore    affirm.      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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