                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 11-5189


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

ANTWON CHANEY,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:10-cr-00552-SB-2)


Submitted:   July 25, 2012               Decided:      September 6, 2012


Before DIAZ and     FLOYD,   Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Douglas H. Westbrook, Charleston, South Carolina, for Appellant.
William N. Nettles, United States Attorney, Columbia, South
Carolina, Alston Badger, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Pursuant to a plea agreement, Antwon Chaney pled guilty to

conspiracy to possess with intent to distribute marijuana, 21

U.S.C. §§ 841(a)(1) and 846, and conspiracy to use a firearm

during and in relation to a drug trafficking crime, 18 U.S.C.

§ 924(o), in the United States District Court for the District

of South Carolina.            On appeal, he challenges his sentence, on

numerous fronts.           We affirm.



                                             I

     The factual basis supporting Chaney’s plea is as follows.

On August 20, 2008, Chaney, Johnnie Lee Henderson, Dwayne Major,

Medicus    Watson,     Jr.,        Jaron    Woods,    Marquel         Chaney,       and   Mack

Washington     decided        to    rob    Joshua     Tiger,      a    drug     dealer      in

Beaufort County, South Carolina.                   The robbery plan involved two

parts.    The first part called for at least two conspirators to

travel    by   car    to    Tiger’s       residence      to   purchase        marijuana     in

order to determine the number of individuals present in Tiger’s

residence.       These       conspirators         would   then    contact       the       other

conspirators     in    a     separate       car    who    would       drive    to    Tiger’s

residence and commit the robbery.

     Around     9:30       p.m.,     the    robbery       plan    went    into       action.

Woods, Henderson, and Marquel Chaney drove to Tiger’s residence.

Henderson and Woods entered the residence, purchased five to ten
                              - 2 -
dollars’ worth of marijuana, and noted that only Tiger and his

roommate, Kevin Shipper, were present in the residence.                         Shortly

after     leaving,      Henderson      phoned    the     second     car     containing

Chaney, Watson, Major, and possibly Washington and advised them

that Tiger had marijuana and only Tiger and his roommate were in

the home.

     Chaney,       Watson,     Major,    and    another      individual       (possibly

Washington) then drove to Tiger’s residence.                   Chaney and another

occupant of the car who has not been identified approached the

entrance.        Upon entering the residence, one conspirator struck

Shipper on the head with a pistol and held him at gun point

while     he    lay   on     the    floor.      At     the   same     time,    another

conspirator approached Tiger and began to struggle with him over

a gun.         This struggle resulted in a contact gunshot wound to

Tiger’s    chest      that   ultimately      proved     fatal.      In    total,   the

conspirators       recovered       approximately     five    ounces    of     marijuana

and a .9 millimeter pistol belonging to Tiger.

     On    May    12,   2010,      Chaney,     Henderson,     Watson,     Major,    and

Washington were charged in a six-count indictment.                        Pursuant to

a plea agreement, Chaney pled guilty to conspiracy to possess

with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1) and

846, and conspiracy to use a firearm during and in relation to a

drug trafficking crime, 18 U.S.C. § 924(o).


                                        - 3 -
     In preparation for sentencing, a United States Probation

Officer prepared a presentence investigation report.                       In the

report, the probation officer determined that Chaney was the

triggerman in Tiger’s death.               For Chaney’s drug offense, the

probation officer set Chaney’s base offense level at 6, pursuant

to United States Sentencing Commission Guidelines Manual (USSG)

§ 2D1.1(c)(17) (less than 250 grams of marijuana).                        The base

offense      level    was:     (1)   increased   by   two   levels    because    a

dangerous weapon was used during the crime, USSG § 2D1.1(b)(1);

and (2) increased by two levels because violence was used during

the commission of the crime, USSG § 2D1.1(b)(2).                Because one of

the victims was killed under circumstances that would constitute

murder under 18 U.S.C. § 1111 had such a killing taken place

within the territorial or maritime jurisdiction of the United

States, the probation officer applied USSG § 2A1.1 (first-degree

murder) through the USSG § 2D1.1(d)(1) cross-reference, which

raised the offense level to 43.              Chaney received a three-level

reduction for acceptance of responsibility, USSG § 3E1.1, which

resulted in a total offense level of 40.                With a total offense

level   of    40     and   a   criminal   history   category   of    I,   Chaney’s

sentencing range for the drug offense was 292 to 365 months’

imprisonment.

     For Chaney’s firearms offense, the probation officer set

the base offense level at 12, USSG § 2K2.1(a)(7).                         The base
                           - 4 -
offense    level     was:        (1)    increased      by    two     levels    because     the

offense    involved         the    use       of   three     to    seven     firearms,      USSG

§ 2K2.1(b)(1)(A);           and    (2)       increased      by     four     levels    because

Chaney used or possessed a firearm in connection with another

felony offense (robbery), USSG § 2K2.1(b)(6).                             Finally, because

Chaney    used   a    firearm          in    connection      with     the    commission     of

another offense which resulted in death, the probation officer

applied USSG § 2A1.1 through the USSG § 2K2.1(c)(1)(B) cross-

reference, which raised the offense level to 43.                               The adjusted

offense    level     was     reduced         by   three     levels    for    acceptance     of

responsibility, USSG § 3E1.1, bringing Chaney’s total offense

level to 40.         With a total offense level of 40 and a criminal

history    category         of     I,       Chaney’s      sentencing        range    for   the

firearms offense was 292 to 365 months’ imprisonment.

     Because       365      months’         imprisonment         exceeded    the     statutory

maximum for Chaney’s offenses, Chaney’s offenses were stacked

pursuant    to       USSG     § 5G1.2(d). 1            Such        stacking    produced       a

sentencing range of 292 to 300 months’ imprisonment.

     At    sentencing,            the       district      court      addressed        Chaney’s

numerous    objections            to     the      probation        officer’s        sentencing

recommendations.            In particular, the district court addressed

     1
       The statutory maximum for Chaney’s marijuana offense is
five years, 21 U.S.C. § 841(b)(1)(D), while such maximum is
twenty years for the firearms offense, 21 U.S.C. § 924(o).


                                               - 5 -
Chaney’s      objection   to     the    probation    officer’s     application     of

USSG § 2A1.1 through the two cross-references.                     Watson, Major,

and     Henderson      testified       that    Chaney    shot    Tiger.       Watson

testified that Chaney recounted the events that occurred inside

Tiger’s residence and that Chaney admitted to shooting Tiger.

When     asked    if    Chaney     said       anything   upon    leaving    Tiger’s

residence, Major testified Chaney stated “I had to shoot that

mother f---er, I shot that mother f---er, I shot that bitch.”

(J.A. 145).         Henderson testified that when Chaney returned to

the    car    after    leaving     Tiger’s      residence,      Chaney    stated   he

thought he had killed Tiger.              Based on this and other evidence,

the district court found that Chaney shot Tiger during a robbery

that he had conspired to commit.                   The district court further

found that Chaney “killed Joshua Tiger with malice aforethought,

because [his conduct] was so reckless and wanton . . . that he

had to know that a serious risk of harm would result.”                         (J.A.

246).        Consequently, the district court applied USSG § 2A1.1

through the cross-references.             At the conclusion of the hearing,

the district court sentenced Chaney to a total of 300 months’

imprisonment.       Chaney filed a timely notice of appeal.



                                          II

       Chaney    challenges      his    sentence    on   numerous    fronts.       We

shall address these challenges in turn.
                              - 6 -
       First, Chaney contends the district court erred when it

found that he shot Tiger.                 Our     review of the district court’s

factual    findings          at    sentencing     is       for    clear    error.        United

States v. Mehta, 594 F.3d 277, 281 (4th Cir.), cert. denied, 131

S. Ct. 279 (2010).                 In this case, there was no clear error.

Watson,    Major,       and       Henderson     all       testified      that     Chaney    shot

Tiger.         The    district        court     found       the     testimony       of     these

witnesses credible and we are in no position to disturb such a

credibility finding.                See United States v. McKenzie–Gude, 671

F.3d   452,     463     (4th       Cir.   2011)       (noting      the     great    deference

afforded       the    district        court’s     credibility         determinations         at

sentencing); United States v. Crump, 120 F.3d 462, 468 (4th Cir.

1997) (“If the court’s findings may rationally be said to be

supported by a preponderance of the evidence, they may not be

disturbed on appeal.”).

       Second, Chaney challenges the district court’s decision to

cross-reference to USSG § 2A1.1.                  We review the district court’s

application of the Sentencing Guidelines de novo.                               United States

v. Parsons, 109 F.3d 1002, 1004 (4th Cir. 1997).

       Under     USSG    § 2D1.1,         “[i]f       a    victim     was       killed     under

circumstances         that        would   constitute         murder       under    18    U.S.C.

§ 1111 had such killing taken place within the territorial or

maritime jurisdiction of the United States, [a district court

should]     apply        §        2A1.1    (First         Degree      Murder).”             USSG
                                            - 7 -
§ 2D1.1(d)(1).        Likewise, under USSG § 2K2.1, if the defendant

used or possessed any firearm or ammunition in connection with

the commission or attempted commission of another offense, and

if   death   resulted,       the    district      court    must   apply    “the    most

analogous offense guideline from Chapter Two, Part A, Subpart 1

(Homicide), if the resulting offense level is greater than that

determined above.”          USSG § 2K2.1(c)(1)(B).

       In   this    case,    the    district    court      correctly     applied    the

First-Degree Murder Guideline, USSG § 2A1.1.                      Section 1111 of

Title 18 defines murder as the unlawful killing of a human being

with    malice     aforethought.        It   further       provides,     in   relevant

part:

       Every murder perpetrated by poison, lying in wait, or
       any other kind of willful, deliberate, malicious, and
       premeditated killing; or committed in the perpetration
       of, or attempt to perpetrate, any . . . robbery . . .
       , is murder in the first degree.

        Any other murder is murder in the second degree.

18 U.S.C. § 1111.

       First-degree     premeditated         murder       requires   a    showing     of

premeditation in addition to proof of malice.                     United States v.

Williams,     342    F.3d    350,    356   (4th    Cir.     2003).       First-degree

felony murder, or a killing committed in the perpetration of

certain felonies, including robbery, does not require proof of

premeditation.         Id.         Second-degree      murder      requires     only    a

showing of malice.          Id.
                                        - 8 -
       Each of these types of murder requires a showing of malice

aforethought.         Whether malice is present in a given case “must

be inferred by the jury from the whole facts and circumstances

surrounding the killing.”                United States v. Fleming, 739 F.2d

945, 947 (4th Cir. 1984).             To prove malice, the government does

not have to show an intent to kill or injure.                          Id.    Rather,

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.”                    Id. at 947-48 (citation

and internal quotation marks omitted).

       In this case, it cannot be disputed that Chaney’s conduct

constituted first-degree felony-murder.                     After all, the murder

of Tiger occurred during a robbery.                  In the face of first-degree

felony murder, Chaney challenges the district court’s finding

that    he    acted    with     malice     aforethought.          Unfortunately    for

Chaney, based on the evidence before it, the district court was

at   liberty    to    find     that   he     acted   with    malice    aforethought.

Chaney conspired with others to rob Tiger and chose to enter his

residence with a loaded gun.                  Such conduct “is reckless and

wanton   and    a     gross    deviation      from    a   reasonable    standard     of

care,” such that the district court was “warranted in inferring

that [Chaney] was aware of a serious risk of death or serious
                            - 9 -
bodily harm.”       Id. at 947-48 (citation and internal quotation

marks omitted).       As the district court found,

      I think the only possible conclusion that anybody with
      any reason and common sense could reach from all the
      testimony, is that the defendant Chaney . . . went
      into that house with a loaded pistol to commit
      robbery, and that it--nobody with any kind of
      intelligence or any kind of--I mean, a first grader
      would almost realize that if you . . . went into a
      person’s house at night with a loaded gun to rob him,
      it’s the only reasonable conclusion, . . . that any
      person could reach but that Mr. Chaney knew that a
      serious risk of harm, based on that type of reckless
      conduct and wanton reckless conduct, that there was a
      serious [risk]--he knew that, had to know that.     No
      way he could not know that.

(J.A. 245-46).        In sum, we find no merit to Chaney’s challenge

to   the   district    court’s    decision    to   cross-reference   to   USSG

§ 2A1.1.

      Third, Chaney challenges the district court’s refusal to

depart downward from the Sentencing Guidelines range.                We lack

the authority to review a district court’s denial of a downward

departure unless the district court failed to understand its

authority to do so.         United States v. Brewer, 520 F.3d 367, 371

(4th Cir. 2008).        Our review of the record discloses that the

district    court     did   not   fail   to   recognize   its   authority   to

depart.    Thus, Chaney’s claim is not reviewable on appeal.

      Finally, Chaney argues that the district court failed to

properly consider the factors set forth in 18 U.S.C. 3553(a).

In explaining its sentencing decision, a district court is not

                                    - 10 -
required      to   “discuss      each    factor    set   forth   in   §   3553(a)    in

checklist fashion”; rather, “it is enough to calculate the range

accurately and explain why (if the sentence lies outside it)

this       defendant      deserves   more    or    less.”        United   States     v.

Moreland, 437 F.3d 424, 432-33 (4th Cir. 2006) (citation and

internal quotation marks omitted).                   Here, the district court

correctly established the Sentencing Guidelines range and gave a

thorough explanation why it imposed the sentence it chose.

       For the reasons stated herein, the judgment of the district

court is affirmed. 2          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




       2
       Chaney also raises a claim under Pinkerton v. United
States, 328 U.S. 640 (1946).    We reject this claim for the
simple reason that it is premised on the fact that he did not
shoot Tiger, a fact the district court understandably did not
find.


                                         - 11 -
