                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4505


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL JUAN SMITH, a/k/a Flame, a/k/a Junior,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Joseph F. Anderson, Jr., Senior
District Judge. (3:13-cr-00966-JFA-1)


Submitted:   December 16, 2014            Decided:   February 6, 2015


Before MOTZ, KING, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, Stacey D. Haynes, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Michael Juan Smith appeals from his 120-month sentence

entered pursuant to his guilty plea to possession of a firearm

and    ammunition       by    a    convicted      felon.           On   appeal,       Smith

challenges        the        application         of        the     attempted         murder

cross-reference         pursuant    to   U.S.     Sentencing        Guidelines       Manual

§§ 2K2.1(a)(4)(A),           2K2.1(c)(1)(A),          2X1.1       (2013).       He     also

challenges    the    district       court’s      imposition        of   an   alternative

120-month variance sentence, in the event that he is successful

on his first claim.          We affirm.

             Smith argues that the district court’s application of

the    attempted     murder       cross-reference           was    improper,      because

(1) the facts did not show the malice necessary for attempted

murder, and (2) the facts supported a finding of self-defense.

We review the district court’s factual findings for clear error

and    its   legal       conclusions       de     novo.            United    States      v.

Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013), cert. denied,

134 S. Ct. 280 (2013).               The Government must prove the facts

underlying a cross-reference by a preponderance of the evidence.

United States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012).

             Without objection by either party, the district court

relied on the witness statements in the presentence report, as

well    as    a    surveillance          video,       in     determining       that     the

cross-reference was applicable.                 While the witnesses were not in

                                            2
complete agreement as to all the facts of the incident, they

generally agreed that Smith and his friends were involved in a

verbal altercation with another group of men while outside in

the Five Points area.               Smith had armed himself in anticipation

of a “beef” prior to seeing the other men.                                 The altercation

concluded     with    Smith     shooting         at    the   other        men    and    instead

hitting, and permanently paralyzing, an innocent bystander.

             “Murder is the unlawful killing of a human being with

malice      aforethought,”          18    U.S.C.        §    1111     (2012).            Malice

aforethought     is   a   necessary         component        of     murder       and    “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. Williams, 342 F.3d 350, 356 (4th Cir.

2003)    (internal    quotation          marks    omitted).           In    order       to   show

attempted     murder,     the       Government        must   prove        that    the    person

(1) had a culpable intent to commit the crime, and (2) he took a

substantial step toward the completion of that crime.                                    United

States v. Engle, 676 F.3d 405, 419-20 (4th Cir. 2012).

             Opening fire on a crowded street is clearly reckless

and wanton.     See, e.g., Thomas v. Harrelson, 942 F.2d 1530, 1532

(11th Cir. 1991).            Moreover, Smith brought a gun with him in

case he got into an altercation, and he admitted this to another

                                             3
inmate after the incident.       Smith also told this inmate that he

shot at the other men as they walked away, and the witness

statements, on the whole, support this conclusion.             Accordingly,

the evidence was sufficient to show by a preponderance of the

evidence that Smith had the culpable intent to commit murder.

            Although self-defense is irrelevant to the underlying

firearm     conviction   here,   Smith   may    assert     self-defense   in

objecting to the application of a particular Guideline.                Under

federal law, a justification defense is available to a defendant

where he:

     (1)    was under unlawful and present threat of death or
            serious bodily injury;

     (2)    did not recklessly place himself in a situation
            where he would be forced to engage in criminal
            conduct;

     (3)    had no reasonable legal alternative . . . ; and

     (4)    [established]   a    direct causal  relationship
            between the criminal action and the avoidance of
            the threatened harm.

United States v. Ricks, 573 F.3d 198, 202 (4th Cir. 2009); see

United States v. Gore, 592 F.3d 489, 491 n.* (4th Cir. 2010)

(noting that “[m]ore recent cases have grouped the defenses of

duress,    self-defense,   and   necessity     under   a   single,   unitary

rubric: justification” (internal quotation marks omitted)).               To

establish self-defense under South Carolina law, four elements

must be present:


                                    4
     (1)    the defendant must be without fault in bringing
            on the difficulty;

     (2)    the defendant must have been in actual imminent
            danger of losing his life or sustaining serious
            bodily injury, or he must have actually believed
            he was in imminent danger of losing his life or
            sustaining serious bodily injury;

     (3)    if his defense is based upon his belief of
            imminent danger, defendant must show that a
            reasonably prudent person . . . would have
            entertained the belief . . . ; and

     (4)    the defendant had no            other      probable    means    of
            avoiding the danger.

State v. Slater, 644 S.E.2d 50, 52 (S.C. 2007).

            We   find     that   application      of     the   attempted     murder

cross-reference     was    proper     because    Smith    could    not   colorably

assert self-defense under either federal or South Carolina law.

First, as to federal law, Smith’s actions “recklessly place[d]

himself in a situation where he would be forced to engage in

criminal conduct.”        Ricks, 573 F.3d at 202.          Smith armed himself

prior to going out that evening because he thought there might

be trouble.      In addition, he positioned the weapon so that it

was easily accessible.

            Further, even assuming that, as Smith argues, Smith

was told that one of the other men had a gun and that the men

intended    to   hurt   Smith    or   one   of   his    friends,     none   of   the

witnesses    actually      saw   a    gun   or   provided      any    actions     or

statements supporting an actual present risk of physical harm to


                                        5
Smith or anyone else.            Moreover, immediately after the shooting,

Smith told police that he was sorry, but did not aver that he

acted     in    self-defense,       and     in          Smith’s       later       statement      to

authorities,      he     denied     even   firing          the    gun.            Based    on   the

evidence in the record, we conclude that Smith failed to show by

a preponderance of the evidence that he was under a present

threat of death or bodily harm.

               Similarly,        Smith         could            not        credibly         assert

self-defense      under     South    Carolina            law.         He   armed    himself      in

anticipation of a possible “beef,” and at the first hint of a

threat,    Smith       opened     fire     in       a     crowded          area    rather       than

attempting to leave or merely brandishing his gun.                                 In addition,

as   discussed     above,       Smith    has       not    shown       he    was    in     imminent

danger.    Therefore, the cross-reference was properly applied.

               Because    the     cross-reference               was    correctly          applied,

Smith’s appeal from the alternative variance sentence is moot.

Accordingly, we affirm Smith’s sentence.                          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 the decisional process.

                                                                                          AFFIRMED




                                               6
