                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4672


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

LAVAUGHN ANTONIO HANTON, a/k/a Killem, a/k/a Billy-D, a/k/a Dutch,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:17-cr-00134-FDW-DSC-24)


Submitted: April 18, 2019                                         Decided: April 22, 2019


Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James M. Ayers II, AYERS & HAIDT, P.A., New Bern, North Carolina, for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

       Lavaughn Antonio Hanton pled guilty to conspiracy to participate in racketeering

activity (RICO conspiracy), in violation of 18 U.S.C. §§ 1962(d), 1963(a) (2012), and

was sentenced to 216 months in prison. Counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which counsel discusses the correctness of the district

court’s application of the attempted murder cross-reference to Hanton’s offense level

under the Sentencing Guidelines. Hanton has filed a pro se supplemental brief, * and the

Government has declined to file a response brief. We affirm.

       We review the factual findings underlying a district court’s application of a

Guidelines cross-reference for clear error and its legal conclusions de novo. United

States v. Ashford, 718 F.3d 377, 380, 383 (4th Cir. 2013). A RICO conspiracy conviction

corresponds to a base offense level of 19 or the offense level applicable to the underlying

racketeering activity—in this case, attempted murder. See U.S. Sentencing Guidelines

Manual (USSG) § 2E1.1(a) (2016). Section 2A2.1(a) provides for a base offense level of

33 if the attempted murder would have constituted first-degree murder, as defined in 18

U.S.C. § 1111 (2012); otherwise, the offense level is 27. Section 1111, in turn, defines

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

aforethought”—that is, as relevant here, a “willful, deliberate, malicious, and

premediated killing[.]”   Thus, a district court must find by a preponderance of the


       *
        We have considered the arguments Hanton raises in his pro se supplemental brief
and find them to be meritless.


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evidence both that the defendant acted with malice and that the attempted killing was

premeditated. United States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003); see United

States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012) (“[T]he Government has the burden to

prove a cross-referenced offense by a preponderance of the evidence. . . .”).

       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.” Ashford, 718 F.3d at 384 (internal quotation marks omitted).

“Premeditation requires planning and deliberation beyond the simple conscious intent to

kill. There must be an appreciable elapse of time between the formation of a design and

the fatal act, although no specific period of time is required.” United States v. Bell, 819

F.3d 310, 319 (7th Cir. 2016) (internal citations omitted). In order for the cross-reference

to apply, the defendant must have the specific intent to kill the victim. See, e.g., Braxton

v. United States, 500 U.S. 344, 351 n.* (1991). After reviewing the testimony presented

at Hanton’s sentencing, we discern no error in the district court’s decision to apply the

cross-reference to the attempted first-degree murder Guideline. See, e.g., Rita v. United

States, 551 U.S. 338, 361-62 (2007) (recognizing that appellate courts must “give due

regard to the opportunity of the district court to judge the credibility of the witnesses, to

accept the findings of fact of the district court unless they are clearly erroneous, and to

give due deference to the district court’s application of the guidelines to the facts”

(internal quotation marks omitted)).



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       In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious grounds for appeal. We therefore affirm the district court’s

judgment. This court requires that counsel inform Hanton, in writing, of his right to

petition the Supreme Court of the United States for further review. If Hanton requests

that a petition be filed, but counsel believes that such a petition would be frivolous, then

counsel may move this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Hanton. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid in the decisional process.

                                                                               AFFIRMED




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