UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4218
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LOKHEIM JERALLE CAMPBELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Bruce H. Hendricks, District
Judge. (4:15-cr-00487-BHH-1)
Submitted: September 22, 2016 Decided: October 13, 2016
Before WILKINSON, SHEDD, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Alfred W. Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lokheim Jeralle Campbell pled guilty to possession of a
firearm by a convicted felony, 18 U.S.C. § 922(g)(1) (2012), and
was sentenced to 120 months in prison. He now appeals, raising
one issue. We affirm.
I
The record reflects that Campbell agreed to sell
prescription drugs to Cyril Lowery. While the men were
negotiating the sale of the drugs, Campbell pulled out a handgun
to rob Lowery. When Lowery began to flee, Campbell fired at
Lowery several times, striking him once in each foot. Five
shell casings were recovered from the scene.
Lowery’s probation officer applied the cross-reference for
attempted first degree murder and assigned base offense level
33. See U.S. Sentencing Guidelines Manual § 2A2.1(a)(1) (2015).
Two levels were added because the victim, Lowery, sustained
serious bodily injury, USSG § 2A2.1(b)(1)(B). Three levels were
subtracted based on acceptance of responsibility, USSG § 3E1.1.
Campbell’s total offense level was 32, his criminal history
category was III, and his Guidelines range was 151-188 months.
He was statutorily subject to a maximum term of ten years in
prison. See 18 U.S.C. § 924(a)(2) (2012). Accordingly, his
Guidelines range was 120 months. See USSG § 5G1.1(a).
2
At sentencing, Campbell objected to application of the
cross-reference, arguing that he intended to rob but not to kill
Lowery. The district court overruled the objection.
II
Campbell contends that the district court erred when it
applied the cross-reference for attempted first degree murder.
When evaluating Guidelines calculations, we review the district
court’s legal conclusions de novo and its factual findings for
clear error. United States v. Cox, 744 F.3d 305, 308 (4th Cir.
2014).
The Guidelines provide for a base offense level of 33 “if
the object of the offense would have constituted first degree
murder,” as defined in 18 U.S.C. § 1111 (2012). USSG
§ 2A2.1(a)(1) & cmt. n.1. Section 1111, in turn, defines first
degree murder as “the unlawful killing of a human being with
malice aforethought” — that is, “[e]very murder perpetrated by
. . . willful, deliberate, malicious, and premeditated killing;
or committed in the perpetration of, or attempt to perpetrate,
any . . . robbery.” 18 U.S.C. § 1111(a). Thus, a defendant
commits first degree murder if the killing was either
premeditated or committed during the course of a felony, such as
robbery. See United States v. Morales-Machuca, 546 F.3d 13, 22
(“18 U.S.C. § 1111 was intended to adopt the felony murder rule,
and for a stated felony the malice element is satisfied by the
3
intent to commit the unlawful felony” (internal quotation marks
omitted)).
We conclude that the district court properly applied the
cross-reference. While attempting to rob Lowery, Campbell shot
at him five times, hitting him twice. Campbell could have
killed Lowery during the course of the robbery; had Lowery died,
Campbell would have been guilty of felony murder.
III
We therefore affirm. 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
4