                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4218


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

KELVIN ROSS SINCLAIR,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-01321-RBH-1)


Submitted:    October 24, 2008              Decided:   November 24, 2008


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Alfred W. Bethea, Jr., Carrie A. Fisher, Assistant
United States Attorneys, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Kelvin        Ross    Sinclair            was    convicted           by     a   jury     of

unlawful possession of a firearm and ammunition by a convicted

felon,   18      U.S.C.A.       §§ 922(g)(1),              924(e)          (West    2006      &    Supp.

2008),     and    was       sentenced          to    a    term        of    life     imprisonment.

Sinclair appeals his conviction and sentence, contending that

the   district        court     abused         its       discretion          in    permitting         the

government       to     introduce         certain         hearsay          testimony,         erred   in

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

§ 2A1.1 (2006) (First Degree Murder), and erred in overruling

his   constitutional           challenge            to     the        armed       career      criminal

sentence.     We affirm.

              On October 8, 2006, Phillippe Williamson was shot and

killed   at      Club       Maximus,      a     nightclub         in       Myrtle       Beach,     South

Carolina.         Although          the       gun       used     to    kill        him     was     never

recovered,       Sinclair       was       prosecuted           on      a    federal        charge     of

unlawful      possession           of     a    firearm         (the        murder        weapon)      and

ammunition       by     a    felon.           The    government’s            evidence         at   trial

established that Williamson and Sinclair got into a fight inside

the   club    and     that     Sinclair         was      removed           from    the    club.        He

returned a short while later with a gun and shot Williamson.

Two   principal         witnesses         were          Darrell       Holmes,       a      friend     of

Williamson, who witnessed the fight and the shooting, and Dante

Tolbert, a friend of Sinclair, who saw him reenter the club

                                                    2
after he was ejected.              Tuesday Smith, Williamson’s girlfriend,

also    testified        that   she    came   to    the     club     after    her    nephew,

Xavier Smith, told her he had learned in a telephone call that

Williamson and Sinclair had been fighting at the club and that

Williamson was “near dead on the floor.”                      When Smith arrived at

the club, she spoke to Holmes in the parking lot.                             He told her

that “Kevin” shot Williamson.                     Holmes did not know Sinclair’s

last    name,      and    identified      Sinclair     as     “Misty’s       baby    daddy.”

Misty      Brown    was     a    mutual      acquaintance       and     the      mother    of

Sinclair’s two children.

             Sinclair          unsuccessfully        sought     to     exclude      Holmes’

testimony about Smith’s statements to him and Smith’s testimony

about Xavier Smith’s statements to her.                      A trial court’s ruling

on   the    admissibility         of   evidence       is    reviewed       for     abuse   of

discretion.         United States v. Midgett, 488 F.3d 288, 297 (4th

Cir.), cert. denied, 128 S. Ct. 464 (2007).                          Hearsay is defined

in Fed. R. Evid. 801(c) as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.”                                     A

“statement” is defined in Rule 801(a)(1) as “an oral or written

assertion.”          “Assertion”        is    not    defined,        but     the    advisory

committee       notes     to    Rule   801(a)      clarify     that    “nothing       is   an

assertion unless intended to be one.”



                                              3
            The “statements” by Tuesday Smith that Sinclair sought

to exclude consisted of three questions she asked Holmes.                          He

testified:

     So Tuesday pulled me off to the side, she was like,
     what happened, Derrell, what happened, tell me what
     happen.  I was like Tuesday, he shot him.   She said,
     who shot him. I said Kevin, Kevin shot him. At that
     time, I didn’t even know his last name.    I mean, I
     know him, I didn’t know his last name. I know who he
     was.

     She was like, who?            Misty’s baby daddy.          I say he shot
     him, he shot him.

            A     question    or     inquiry   is    not    a     statement,      and

therefore    is    not    hearsay    unless    it   can    be    construed   as    an

intended assertion.          United States v. Thomas, 453 F.3d 838, 845

(7th Cir. 2006); United States v. Jackson, 88 F.3d 845, 848

(10th Cir. 1996); United States v. Oguns, 921 F.2d 442, 449 (2d

Cir. 1990); United States v. Lewis, 902 F.2d 1176, 1179 (5th

Cir. 1990).       In this case, Smith’s questions were requests for

information and cannot be construed as assertions.                    Because the

questions were not hearsay, the district court did not abuse its

discretion in admitting them.             Holmes’ statements to Smith were

not hearsay because, pursuant to Rule 801(d)(1)(C), a “statement

is not hearsay if . . . the declarant testifies at the trial or

hearing     and   is     subject    to   cross-examination         concerning     the

statement, and the statement is . . . one of identification of a

person made after perceiving the person.”



                                          4
            Sinclair     also      sought    to     exclude    the       following

testimony by Tuesday Smith:

      [Xavier] said he just got a call that Phil and Kevin
      was fighting.   And I said what Kevin.   And he said
      Misty’s Kevin. Then he turned and came back and said
      Phil was damn near dead on the floor.

            The    government     offered    this   testimony,     not    for   the

truth of the matter asserted, but to show “why [Smith] did what

she did next,” that is, why she left home and went to Club

Maximus at about 2:00 o’clock in the morning.                      Although the

statements are hearsay, we are satisfied that the district court

did not abuse its discretion in admitting them under Fed. R.

Evid. 803(3) to explain Smith’s “then existing state of mind.”

In   any   case,   any   error    was   harmless    because    the   statements

tended to prove only that Sinclair and Williamson fought at the

club and that Williamson was likely dead, but did not suggest

that Sinclair possessed a gun, the offense for which he was on

trial.

            At the sentencing hearing, Sinclair objected to the

cross reference to USSG § 2A1.1, the guideline for first degree

murder, arguing that the killing was done without premeditation

or malice, in the heat of a sudden quarrel.                 He maintained that

a more appropriate cross reference would be to the guideline for

voluntary    manslaughter,       or   “something    other   than   premeditated




                                         5
murder.”    The district court disagreed, finding that § 2A1.1

applied.   The court made the following findings:


     This was a malicious and premeditated killing. After
     the confrontation between the defendant and the
     deceased, the defendant was escorted out of the club.
     Instead of leaving, he goes and retrieves a firearm.
     He made a conscious, deliberate decision to come back
     with a weapon with the intention of shooting Phillippe
     Williamson.

     According to Derrell Holmes’ testimony, the defendant
     came back in with a hoody over his head, and a hand
     under his shirt.   Holmes said the defendant came up
     and said, quote, hey, where your boy at?     And said,
     also, quote, I should pop your bitch ass, too. Holmes
     tried to get the defendant to leave, but instead, the
     defendant proceeded to basically rob Holmes, when
     Phillippe Williamson came up, and the defendant shot
     him.

     Later, Donte [sic] Tolbert asked the defendant if
     Williamson was dead, and the defendant said, I hope
     so.

     This was not voluntary manslaughter.    He had time to
     reflect on what he was doing.     He knew what he was
     doing. He came in there with a hoody over his head, a
     hand under his shirt and in fact, told Holmes
     basically that he should shoot him, too, before he
     shot the deceased.       His conduct was malicious,
     reckless, wanton, he retrieved a gun and fired it at
     Mr. Williamson.    He made a conscious decision to do
     so.    The fact that after being escorted out, he
     returned   with  a   loaded  gun,   coupled  with  the
     statements he made to Mr. Holmes and Mr. Tolbert
     support the fact that his conduct was malicious and
     premeditated, so I overrule your objection.

           The   court    also    agreed       with     the   government   that

Sinclair   committed     the   murder       during    the   perpetration   of   a

robbery, which established an alternative ground for a cross

reference to § 2A1.1.      USSG § 2A1.1, comment. (n.1(B)).

                                        6
               Sinclair      contends   that     the    evidence     showed     that

Williamson’s death was a voluntary manslaughter rather than a

premeditated murder.            We review a sentence under an abuse of

discretion standard.          Gall v. United States, 128 S. Ct. 586, 590

(2007).        The first step in this review requires the appellate

court to ensure that the district court committed no significant

procedural error, such as improperly calculating the guideline

range.        United States v. Osborne, 514 F.3d 377, 387 (4th Cir.),

cert. denied, 128 S. Ct. 2525 (2008).

               Under    § 2K2.1(c)(1)(B),      if     the    defendant   unlawfully

used or possessed a firearm in connection with another offense,

and death resulted, the most analogous homicide guideline should

be applied.        Guideline section § 2A1.1 applies in cases where a

killing is premeditated, while USSG § 2A1.3 applies in the case

of voluntary manslaughter.

               To establish first degree murder, the government must

show     malice        aforethought     as     well     as     premeditation     and

deliberation.          United States v. Shaw, 701 F.2d 367, 392 (5th

Cir. 1983).       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      injury.”       United     States



                                         7
v. Williams,     342   F.3d     350,   356-57       (4th    Cir.     2003)      (internal

quotation and citation omitted).

            This court has held that no particular period of time

for reflection is essential to a finding of premeditation and

deliberation.       Faust v. North Carolina, 307 F.2d 869, 871 (4th

Cir. 1962); see also United States v. Downs, 56 F.3d 973, 975

(8th Cir. 1995); Shaw, 701 F.2d at 392-93.                    What is required is

a showing that the defendant acted with a “cool mind [and] did,

in fact, reflect, at least for a short period time before his

act.”     Id. at 393. While the amount of time for reflection may

vary, “it is the fact of deliberation, of second thought that is

important.”     United States v. Frappier, 807 F.2d 257, 261 (1st

Cir.    1986)   (citing       Fisher   v.       United     States,    328       U.S.   463

(1946)).        Voluntary      manslaughter        is    defined     in     18 U.S.C.A.

§ 1112 (West 2000 & Supp. 2008) as “an unlawful killing of a

human being without malice . . . [u]pon a sudden quarrel or heat

of passion.”

            Sinclair maintains that Williamson was shot during a

sudden,    heated    confrontation,         which    he     characterizes         as   “an

ongoing    dispute”      in    which   Williamson          attacked       him    and   he

“retaliated     within    minutes,     while       the     dispute    was       ongoing.”

However, the evidence established that Sinclair had at least

several minutes to reflect after he was ejected from the club.

During that time, he obtained a gun, put on a hoody and pulled

                                            8
the hood up, thus changing his appearance to some degree, and

went back into the club through a side exit door.                                  He thus

avoided the club’s weapon check at the front door.                              Sinclair’s

encounter with Holmes after he reentered the club indicated that

he was looking for Williamson, and he shot Williamson when he

found    him.        This    evidence      showed      that    Sinclair    had    time   to

reflect between his fight with Williamson and the shooting.                              We

conclude that the district court did not err in finding that

there was evidence of premeditation, and correctly applied the

cross reference to § 2A1.1.

              Last,    Sinclair       challenges       his     armed   career    criminal

sentence, arguing that the government’s failure to charge his

predicate convictions in the indictment violates the Fifth and

Sixth   Amendments          under   Apprendi      v.    New    Jersey,    530    U.S.    466

(2000).       He contends that Apprendi cannot be reconciled with the

Supreme Court’s holding in Almendarez-Torres v. United States,

523    U.S.    224    (1998)       (holding   that      prior     conviction      used    to

enhance sentence need not be charged in the indictment).                                 We

have rejected similar Fifth and Sixth Amendment challenges to

the continued viability of Almendarez-Torres, see United States

v.    Thompson,      421    F.3d    278,    281   n.2    (4th     Cir.    2005);    United

States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005), and may

not overrule this court’s precedents.                         United States v. Simms,

441 F.3d 313, 318 (4th Cir.) (AA decision of a panel of this

                                              9
court becomes the law of the circuit and is binding on other

panels unless it is overruled by a subsequent en banc opinion of

this court or a superseding contrary decision of the Supreme

Court.@ (internal quotation omitted)), cert. denied, 127 S. Ct.

233 (2006).     Therefore, this claim fails.

           Accordingly,       we   affirm   the   conviction   and   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




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