UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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).
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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
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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).
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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.
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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
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§ 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.
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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
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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
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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.
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