                                                                                 FILED
                                                                     United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                           June 8, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-7084
                                                (D.C. No. 6:16-CR-00002-RAW-1)
DERRICK DEJUAN WOOTEN,                                     (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. **
                  _________________________________

      In the context of a sentencing for unlawful possession of a firearm, U.S.S.G

§ 2K2.1(c) provides that when the defendant uses the firearm cited in the offense of

conviction in connection with another offense or attempted offense, the guideline

range for that offense or attempted offense should be applied if it is higher than the

range calculated under § 2K2.1(a) and (b). For the purposes of this cross reference,

“another offense” means “any federal, state, or local offense, . . . regardless of


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1

cmt. n.14(C). In 2016, a federal jury convicted Defendant Derrick Wooten of being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At sentencing,

the district court used the cross reference under U.S.S.G. § 2K2.1(c) to apply the

attempted-murder guideline under § 2A2.1 and sentenced Wooten to 120 months’

imprisonment. Wooten challenges this cross reference. Exercising jurisdiction under

18 U.S.C. § 3742(a)(2), we affirm.

         The incident leading to this cross reference began when Wooten received a

phone call from his mother in November 2015.1 She said that “Chicago” (Demetrius

Carey) was at her house threatening to kill her if he could not find Wooten. Wooten

took his pistol and drove approximately three-quarters of a mile to his mother’s

house. He exited his vehicle with the pistol in his hand and exchanged words with

Carey.       When Carey moved his hands toward his beltline, Wooten began firing.

Wooten fired approximately seven times from the area at the front of his mother’s

property as Carey fled. Wooten followed Carey down the street and around the

corner, where Wooten fired at least one more shot. One of the rounds hit Carey in

the face. According to the Addendum to the Presentence Report, the round entered at

Carey’s jawline and exited at the bridge of his nose. Carey was unarmed.



         1
         During the sentencing hearing, the government called a neighborhood
resident who witnessed the events and one of the officers who responded to the
scene. The district court found the government’s witnesses to be credible, adopted
the facts in the Presentence Investigation Report, and considered the statements
Wooten voluntarily made while in custody.
                                          2
       Using the cross reference in U.S.S.G. § 2K2.1(c)(1)(A), the district court

applied the attempted murder guideline in § 2A2.1 and found a total offense level of

37. That offense level, when combined with Wooten’s criminal history category of

III, provided a sentencing range of 262–327 months’ imprisonment. But because 120

months is the maximum sentence for a felon in possession of a firearm under

18 U.S.C. § 924(a)(2), 120 months became the guideline sentence according to

U.S.S.G. § 5G1.1(a). Based on this calculation and the 18 U.S.C. § 3553 factors, the

district court sentenced Wooten to 120 months in prison and three years’ supervised

release.

       Wooten timely appeals his sentence and argues that (1) because he acted in

self-defense, he did not attempt a homicide offense; and alternatively (2) due to his

lack of malice aforethought and premeditation, the most appropriate guideline to

apply is § 2A2.2 covering attempted manslaughter rather than § 2A2.1 for attempted

murder. Essentially, Wooten argues that the evidence does not support the district

court’s findings and application of the guidelines. Our conclusions on the facts of

this case, however, necessarily lead us to conclude that attempted first-degree murder

is the most appropriate guideline to apply.

       We review the district court’s selection of the most analogous offense

guideline with due deference, limiting our review of its factual findings for clear

error but conducting de novo review over its interpretations of the guidelines and the

ultimate determination of which of several offense guidelines most appropriately

applies to the facts as found. United States v. Fortier, 180 F.3d 1217, 1225 (10th Cir.

                                              3
1999). The government must prove the facts supporting the cross reference by a

preponderance of the evidence. See id. “A finding of fact is clearly erroneous only if

it is without factual support in the record or if the appellate court, after reviewing all

of the evidence, is left with a definite and firm conviction that a mistake has been

made.” United States v. Maestas, 642 F.3d 1315, 1319 (10th Cir. 2011) (quoting

United States v. Talamante, 981 F.2d 1153, 1158 (10th Cir. 1992)).

      Wooten first argues that Carey’s earlier threat against his mother and Carey’s

action in reaching for his own beltline prompted him to act in self-defense.

Generally, “a person may resort to self-defense if he reasonably believes that he is in

imminent danger of death or great bodily harm, thus necessitating an in-kind

response.” United States v. Toledo, 739 F.3d 562, 567 (10th Cir. 2014). Wooten’s

argument, however, defies common sense because self-defense “requires the

defendant’s reasonable belief that deadly force was necessary.” Id. at 568.2 Wooten

armed himself and traveled nearly a mile to a situation where he knew he was likely

to find trouble. At the first instance of a potentially threatening action, he began

firing rather than brandishing his gun or attempting to leave even though none of the

witnesses saw Carey with a gun and Carey was, in fact, unarmed. Finally, and most

condemning, even if Wooten had fired the first shot (or the first few shots) in self-

defense, he could not have reasonably fired the subsequent shots in self-defense


      2
       Definitions of self-defense the parties suggested have substantially the same
elements. See Okla. Stat. tit. 21, § 733(a)(2); Robinson v. State, 255 P.3d 425, 432
(Okla. Crim. App. 2011) (applying Oklahoma statutory self-defense definition);
LaFave and Scott, Substantive Criminal Law, § 5.7 (1986).
                                            4
while Carey was fleeing the confrontation. The district court did not clearly err in

determining that Wooten did not act in self-defense.

       We next address the district court’s selection of the attempted first-degree-

murder guideline to the exclusion of other attempted-homicide guidelines. We apply

guidelines pertaining to first-degree murder when the evidence presented

“demonstrates by a preponderance of the evidence that the defendant harbored malice

aforethought and premeditation.” Fortier, 180 F.3d at 1226 (citing United States v.

Nichols, 169 F.3d 1255, 1272, 1275–76 (10th Cir. 1999)); see also 18 U.S.C.

§ 1111(a). Wooten argues that he lacked malice because he was in a heat of passion

and, further, that he lacked premeditation or specific intent to kill. The district court

expressly found malice aforethought, and, because it selected the attempted first-

degree murder guideline, the court necessarily also found premeditation. Because the

district court did not clearly err in finding the requisite mental state, we agree that the

most appropriate guideline is attempted first-degree murder.

       Malice aforethought “may be established by evidence of conduct 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.” United States v. Wood, 207 F.3d 1222,

1228 (10th Cir. 2000) (quoting United States v. Soundingsides, 820 F.2d 1232, 1237

(10th Cir. 1987)). Continuing to shoot approximately nine times at a person who is

not an immediate threat and is running away from a confrontation in a residential



                                            5
area certainly constitutes reckless behavior and a gross deviation from a reasonable

standard of care.

      To negate malice aforethought, Wooten argues he acted in a heat of passion

because of the phone call from his mother and the “heated dispute” between himself

and Carey. The heat of passion defense requires a provocation severe and sudden

enough to cause “a passion of fear or rage in which the defendant loses his normal

self-control as a result of circumstances that would provoke such a passion in an

ordinary person, but which did not justify the use of deadly force.” United States v.

Serawop, 410 F.3d 656, 664–65 (10th Cir. 2005) (quoting United States v. Browner,

889 F.2d 549, 552 (5th Cir. 1989)). The district court did not accept Wooten’s

arguments pertaining to the phone call as an impassioning factor and noted that

Wooten traveled nearly a mile, with his gun, to the trouble. We are not left with a

definite and firm conviction that a mistake was made, and we conclude that Wooten

has not met the high standard of clear error on this point. See Maestas, 642 F.3d at

1319. To the extent that Wooten claims he and Carey had a heated dispute, his own

statements belie that characterization. During his post arrest interview, Wooten told

officers that he had asked Carey, “What are you doing here? What do you want?”

before Carey reached for his pants and Wooten began firing.            It would be

inappropriate to consider this interaction sufficiently impassioning for the purposes

of Wooten’s defense.

      The two cases Wooten cites for support do not help him. United States v.

Kupfer, 68 F. App’x 927 (10th Cir. 2003) (unpublished), a nonbinding Order and

                                         6
Judgment, dealt with a much more provoking circumstance. In that case, we affirmed

the district court’s application of the voluntary manslaughter guideline over the

defendant’s request for the involuntary manslaughter guideline where, during an

already heated interaction, the victim had just informed the defendant that he had

sexually assaulted the defendant’s sister. Id. at 930. And in United States v. Cherry,

572 F.3d 829 (10th Cir. 2009), neither party challenged the district court’s finding of

heat of passion. In that case, the defendant jumped out of his vehicle prepared to

fight and exchanged threats with the victim as part of a larger confrontation and

leading up to a mutual gunfight. Id. at 830. Additionally, we noted in dicta that the

district court may have been “lenient” in making that finding and not “analogizing

Mr. Cherry’s conduct to a more serious form of homicide.” Id. at 832. Here, we find

no clear error in the district court’s finding of malice aforethought.

      Finally, while we may not presume premeditation, Fortier, 180 F.3d at 1226, it

is “properly inferred where the apparent purpose of the lethal act is to cause the

victim’s death,” Wood, 207 F.3d at 1232.              Further, “a killer can develop

premeditation during the incident at issue,” and the government does not need to

“show that the defendant deliberated for any particular period of time.” United States

v. Treas-Wilson, 3 F.3d 1406, 1409 (10th Cir. 1993) (quoting United States v. Slader,

791 F.2d 655, 657 (8th Cir. 1986)).        Wooten’s pursuit of Carey is a sufficient

evidentiary basis for the district court’s determination. If Carey was hit before he

went around the corner, then it appears that Wooten followed with the intent to finish

killing him. If Carey was hit after he went around the corner, then it appears that

                                            7
Wooten engaged in an intentional search-and-destroy mission. The district court did

not clearly err in finding premeditation.

      For the reasons set forth above, we AFFIRM.


                                            Entered for the Court


                                            Bobby R. Baldock
                                            Circuit Judge




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