United States v. Terrell Rogers , 457 F. App'x 268 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5245
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRELL ROGERS, a/k/a Tavon,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:09-cr-00467-WMN-1)
Submitted: November 10, 2011 Decided: December 7, 2011
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Joanna Silver, Staff
Attorney, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Judson T. Mihok, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrell Rogers appeals his 292-month prison sentence
for convictions of possession of a firearm by a convicted felon
in violation of 18 U.S.C. § 922(g)(1) (2006), possession with
intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (2006), and conspiracy to engage in witness
tampering in violation of 18 U.S.C. § 1512(k) (2006). We
affirm.
We review a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to inspect
for procedural reasonableness by ensuring that the district
court committed no significant procedural errors, such as
failing to calculate or improperly calculating the Guidelines
range, failing to consider the 18 U.S.C. § 3553(a) (2006)
factors, or failing to adequately explain the sentence. United
States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. We presume that a sentence within a
properly-calculated Guidelines range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Rogers first asserts that the district court
improperly calculated his Guidelines range by applying the
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attempted first degree murder cross reference. A sentencing
court may find the facts relevant to applying the cross
reference by a preponderance of the evidence as long as the
Guidelines are treated as advisory and the sentence falls within
the statutory maximum authorized by the jury’s verdict. United
States v. Wright, 594 F.3d 259, 267-68 (4th Cir. 2010).
For Guidelines purposes, first degree murder is
defined as conduct that would constitute first degree murder
under 18 U.S.C. § 1111 (2006). U.S. Sentencing Guidelines
Manual (“USSG”) § 2A2.1 cmt. n.1 (2009). The statute defines
first degree murder to include “the unlawful killing of a human
being with malice aforethought. Every murder perpetrated
by . . . any . . . kind of willful, deliberate, malicious, and
premeditated killing . . . is murder in the first degree.” 18
U.S.C. § 1111(a). Any other murder is murder in the second
degree. Id.Malice aforethought is a necessary component of first
or second degree murder; it may be inferred from the whole facts
and circumstances surrounding the killing. United States v.
Williams, 342 F.3d 350, 356 (4th Cir. 2003). “[M]alice
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
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serious bodily harm.” Id. (internal quotation marks omitted).
An intent to kill or injure is not a necessary component of
malice. Id.Because felony murder was not at issue here, a finding
of premeditation was essential for a finding of attempted first
degree murder. Id. We have previously stated that “no
particular period of time for reflection is essential to a
finding of premeditation and deliberation.” United States v.
Sinclair, 301 F. App’x 251, 255 (4th Cir. 2008) (per curiam)
(citing Faust v. North Carolina, 307 F.2d 869, 871 (4th Cir.
1962)). “While the amount of time for reflection may vary, ‘it
is the fact of deliberation, of second thought that is
important.’” Sinclair, 301 F. App’x at 255 (quoting United
States v. Frappier, 807 F.2d 257, 261 (1st Cir. 1986)).
We conclude that the facts are sufficient to support
the district court’s finding of malice aforethought and
premeditation. Rogers had ample opportunity to reflect on his
decision to disengage from a fistfight and retrieve the gun, to
get into the car with the victim, and to aim the gun at the
victim at point blank range. The evidence also supported a
finding that the gun discharged before the car’s final crash,
thus supporting a finding that it is more likely than not that
Rogers intentionally fired the gun at the victim. We find no
reversible error with the district court’s finding by a
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preponderance of the evidence that Rogers formed the deliberate
premeditation necessary to support the attempted first degree
murder cross reference.
Rogers also claims error with the district court’s
depth of explanation in imposing his sentence. A district
court’s explanation in imposing a sentence must be “sufficient
‘to satisfy the appellate court that [the district court] has
considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.’”
Boulware, 604 F.3d at 837 (quoting Rita v. United States, 551
U.S. 338, 356 (2007)). But when a sentencing court decides
simply to apply the Guidelines, “doing so will not necessarily
require lengthy explanation.” Rita, 551 U.S. at 356. “This is
because guidelines sentences themselves are in many ways
tailored to the individual and reflect approximately two decades
of close attention to federal sentencing policy.” United
States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009) (internal
quotation marks omitted).
We find that the district court adequately explained
its basis for imposing Rogers’ sentence. The district court
noted the extensiveness of Rogers’ criminal history and the
troubling nature of his offenses. A sentencing court need not
“robotically tick through § 3553(a)’s every subsection,” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), nor must
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it explicitly state its rationale for the rejection of every
unsuccessful argument brought before it. Given the within-
Guidelines sentence - indeed, the sentence imposed was at the
very bottom of the properly calculated Guidelines range - the
district court satisfied its duty of explanation.
We therefore affirm the district court’s judgment. 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
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