United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-10632
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERIC DESHON CALTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CR-80-1-C
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Deric Deshon Calton pleaded guilty to being a felon in
possession of a firearm. The district court applied the cross-
referencing provision of U.S.S.G. § 2K2.1 and computed Calton’s
offense level by using U.S.S.G. § 2A1.2, the guideline for second
degree murder and the most analogous offense under the guidelines
for the offense conduct of killing Harold Williams. The district
court sentenced Calton to 120 months in prison, to be followed by
three years of supervised release.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-10632
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On appeal, Calton argues that the cross-reference provision
of U.S.S.G. § 2K2.1(c)(1) does not apply because he used the
firearm in self-defense, not in connection with the commission of
another offense. This court reviews the application of the
Sentencing Guidelines de novo, and it reviews the sentencing
court’s factual findings for clear error. United States v.
Edwards, 65 F.3d 430, 432 (5th Cir. 1995). For sentencing
purposes, the district court “may consider any information which
has sufficient indicia of reliability to support its probable
accuracy.” United States v. Mitchell, 166 F.3d 748, 754 (5th
Cir. 1999) (internal quotation marks and citation omitted).
Section 2K2.1(c)(1)(B) instructs that if the defendant
“possessed or transferred a firearm or ammunition with the
knowledge or intent that it would be used or possessed in
connection with another offense” and a death resulted, the
defendant’s base offense level is to be determined by applying
“the most analogous offense guideline” for homicide, if it
results in a higher offense level. § 2K2.1(c)(1)(B) & comment.
(n.14). The presentence report (PSR) and the testimony at
sentencing were unequivocal and consistent in relating that
Calton and Williams were involved in an altercation in the street
and that Williams had taken two shots at Calton. The PSR and the
testimony at sentencing were equally unequivocal and consistent
in relating that after Williams shot at him, Calton entered a
nearby residence rented by Randy Cravin, retrieved a .22 caliber
No. 04-10632
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rifle kept at Cravin’s residence, shot Williams in the chest from
the doorway of the residence, exited the residence, and shot
Williams again as Williams lay on the sidewalk. Notwithstanding
Calton’s general argument to the contrary, the district court was
not clearly erroneous in finding that the shooting of Williams,
once from a doorway and again as he lay bleeding, was not an act
of self-defense. As the district court was not clearly erroneous
in its factual finding adopting the background facts contained in
the PSR, the district court did not err by using § 2K2.1(c)(1)(B)
to compute Calton’s sentence. Mitchell, 166 F.3d at 754.
For the first time on appeal, Calton argues that the
district court should have granted him a downward departure from
the guidelines because he was provoked by Williams. We have
jurisdiction to review a refusal to downwardly depart from the
guideline sentencing range only if the district court based its
decision on an erroneous belief that it lacked the authority to
depart. United States v. Buck, 324 F.3d 786, 797 (5th Cir.
2003). As Calton has not alleged that the district court was
unaware of the ability to depart and the record contains no
support for such an allegation, we are without jurisdiction to
consider the issue. See United States v. Landerman, 167 F.3d
895, 899 (5th Cir. 1999).
Calton’s sentence is AFFIRMED.