UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4352
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORDAN ARMAND TERRELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:19-cr-00452-WO-1)
Submitted: July 14, 2021 Decided: July 28, 2021
Before KEENAN, WYNN, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Ames C. Chamberlin, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
Carolina, for Appellant. Matthew G.T. Martin, United States Attorney, JoAnna G.
McFadden, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jordan Armand Terrell pled guilty pursuant to a plea agreement to possession of
ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The
district court imposed a sentence of 108 months’ imprisonment. On appeal, Terrell
contends that the district court erred at sentencing by applying a cross-reference to
attempted murder, see U.S. Sentencing Guidelines Manual §§ 2A2.1(a)(2),
2K2.1(c)(1)(A), 2X1.1(a) (2018). We affirm.
Terrell challenges the application of the cross-reference in USSG § 2K2.1(c)(1),
arguing that the facts underlying his conviction do not support the cross-reference to
attempted second-degree murder because he acted in the heat of passion. “We review the
factual findings underlying a district court’s application of a [Sentencing] Guidelines cross-
reference for clear error and the court’s legal conclusions de novo.” United States v. Lynn,
912 F.3d 212, 216 (4th Cir. 2019). “[T]he Government has the burden to prove a cross-
referenced offense by a preponderance of the evidence.” United States v. Slager, 912 F.3d
224, 232 (4th Cir. 2019) (internal quotation marks omitted). “In the event of a conviction
for illegal possession of a firearm, USSG § 2K2.1(c) authorizes a district court to substitute
the offense level for any criminal offense that the defendant committed or attempted to
commit in connection with the possession of the firearm.” Lynn, 912 F.3d at 216 (internal
quotation marks omitted).
Here, the district court found that Terrell committed attempted second-degree
murder in conjunction with his possession of ammunition. “Murder is the unlawful killing
of a human being with malice aforethought,” 18 U.S.C. § 1111(a), while “[voluntary]
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manslaughter is the unlawful killing of a human being without malice . . . . [u]pon a sudden
quarrel or heat of passion,” 18 U.S.C. § 1112(a). Malice aforethought is a necessary
component of second-degree 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.” Lynn, 912 F.3d at 216 (internal quotation marks omitted).
Thus, to apply the cross-reference, the sentencing court must find by a preponderance of
the evidence that the defendant acted with malice and that the attempted killing was not
committed upon a sudden quarrel or heat of passion. In this case, after Terrell reached a
point of safety from an altercation initiated by the victim, he returned with a firearm and,
in a ski mask, approached the victim, and shot at the victim numerous times. We conclude
that a preponderance of the evidence supported the cross-reference to attempted second-
degree murder.
Accordingly, we affirm the judgment of the district court. 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
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