United States v. Lilly , 226 F. App'x 276 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4335
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHONTI YAVESSE LILLY,
Defendant - Appellant.
No. 06-4361
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
CHONTI YAVESSE LILLY,
Defendant - Appellee.
Appeals from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:05-cr-01041-RBH-2)
Argued: December 1, 2006 Decided: May 17, 2007
Before MOTZ and TRAXLER, Circuit Judges, and David A. FABER, Chief
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Ray Coit Yarborough, Jr., Florence, South Carolina, for
Appellant/Cross-Appellee. Thomas Ernest Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Criminal Division, Washington, D.C., for
Appellee/Cross-Appellant. ON BRIEF: Reginald I. Lloyd, United
States Attorney, Rose Mary Parham, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South
Carolina, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On November 10, 2005, Chonti Yavesse Lilly pled guilty to
being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). The
district court, pursuant to U.S. Sentencing Guidelines Manual §
2K2.1(c), applied the cross-reference to the homicide guidelines
found at section 2A1.1. The court granted Lilly a variance
sentence, however, and ordered that his federal sentence run
concurrently to a state sentence imposed for a cocaine trafficking
conviction. The defendant appeals the murder cross-reference, and
the government appeals the variance sentence and the imposition of
a concurrent sentence. We affirm the district court’s sentence.
I.
On November 9, 2004, Lilly, his brother, Kwame, and his uncle,
Junior, got into an argument with Kelvin Platt and others at a
residence in Wallace, South Carolina. The police responded to the
scene, and Kwame and Junior fled to some nearby woods. Lilly
remained, and threatened Platt by saying, “You wait until the
police leave and see what happen [sic] to you.” (Joint Appendix
(JA) 110.) Lilly added that he was “going to burn [Platt]” when
the police left. (Id. at 110-11.) The police advised the two
groups to stay away from each other, and then left the area.
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After the police left, Kwame and Junior came out of the woods.
Kwame brandished a gun, and told Lilly to get Platt. Lilly drew a
.380 caliber pistol and pointed it at Platt’s head. Platt
retreated to safety, but he soon returned to challenge Lilly to a
“fair fight” without weapons. (Id.) Lilly agreed, and he laid his
gun on top of his coat. Lilly and Platt started fighting, but when
Platt began winning the fight, Junior told Kwame to “go handle the
situation.” (Id.) Kwame picked up Lilly’s gun and shot Platt in
the head, killing him.
Lilly pled guilty on November 10, 2005, to being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. §
922(g)(1) and 18 U.S.C. § 924(a)(2). While Lilly awaited
sentencing for his federal crime, a South Carolina state court
sentenced Lilly to five years imprisonment for a May 2005 cocaine
trafficking conviction.
At Lilly’s federal sentencing hearing on March 15, 2006, the
district court applied the cross-reference to first-degree murder
to determine Lilly’s guideline range. This resulted in a guideline
range of 360 months to life. However, because the underlying
offense carried a statutory maximum of ten years, Lilly’s guideline
range became 120 months.
The district court granted Lilly’s motion for a variance
sentence, reasoning that Lilly’s brother actually killed Platt,
Platt was much bigger than Lilly, and Platt contributed to his own
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death by voluntarily returning to fight Lilly. The court then
sentenced Lilly to 102 months and ordered that his federal sentence
run concurrently to his state drug sentence.
II.
We first address whether the district court erred in applying
U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(B) and cross-
referencing the first-degree murder guideline, U.S. Sentencing
Guidelines Manual § 2A1.1, to enhance Lilly’s sentence. “In
assessing a challenge to a sentencing court's application of the
Guidelines, we review the court's factual findings for clear error
and its legal conclusions de novo.” United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006).
A.
Lilly first argues that the district court erred by cross-
referencing the homicide guidelines. He contends that his brother
Kwame and his uncle Junior jointly undertook to kill Platt after he
abandoned his gun, and that he did not participate in their
criminal activity. The sentencing court found that Lilly induced
his brother to murder Platt by pointing the gun at Platt’s head,
threatening Platt’s life, and then placing the gun where it was
readily available to his brother. We agree with the district
court.
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When a defendant possesses a firearm in connection with
another crime, or if a defendant transfers a firearm with the
knowledge or intent that the gun will be used in another crime, and
that crime results in death, sentencing courts must cross-reference
the homicide guidelines to determine the defendant’s base offense
level. U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(B).
A district court determines the appropriate cross-reference
based on the following:
(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant; and, (B) in the case of a
jointly undertaken criminal activity[,]. . . all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.
Id. at § 1B1.3(a)(1)(A)-(B). A defendant may be held liable for
another person’s conduct under both subsections (a)(1)(A) and
(a)(1)(B). Id. at § 1B1.3 cmt. n.2, illus. b(1).
The evidence clearly supports a finding that Lilly induced his
brother Kwame to murder Platt. See id. at § 1B1.3(a)(1)(A). Lilly
induced Platt’s murder by previously threatening Platt’s life,
pointing his gun at Platt’s head, and then making the gun readily
available to his brother before fighting Platt.
The evidence also shows that Lilly reasonably could have
foreseen that his brother might murder Platt in furtherance of
their joint criminal activity. See id. at § 1B1.3(a)(1)(B).
Lilly, Kwame, and Junior were engaged in joint criminal activity -
threatening Platt’s life. As stated above, Lilly and Kwame
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threatened Platt’s life, and Lilly pointed his gun at Platt’s head.
Lilly then agreed to fight Platt, who was much bigger than Lilly.
Before fighting Platt, Lilly placed his gun where it was readily
available to Kwame. Given their differences in stature, Lilly
likely could have concluded that Platt might have an advantage over
him in a fight. By placing his gun where it was readily available
to his brother, Lilly either knew, or should have known, that his
brother would intervene if Platt started to win the fight.
Therefore, Lilly could have reasonably foreseen that his brother
might use his gun to kill Platt in furtherance of their joint
criminal activity. Thus, the district court properly cross-
referenced the homicide guidelines.
B.
Lilly next argues that there is no evidence from which the
sentencing court could have concluded that he acted with
premeditation and malice. Lilly suggests that, at most, the
evidence supports only a finding of voluntary manslaughter.
To sentence a defendant based on the first degree murder
guideline, a court needs to find by a preponderance of the evidence
that the defendant acted with malice and premeditation. See 18
U.S.C. § 1111(a). Second degree murder requires a finding of only
malice. Id. Voluntary manslaughter is the unlawful killing of
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another without malice and “upon a sudden quarrel or heat of
passion.” Id. at § 1112.
The evidence clearly supports a finding of malice. Malice may
be established by reckless and wanton conduct, or conduct that is
a gross deviation from a reasonable standard of care. United
States v. Fleming, 739 F.2d 945, 947-48 (4th Cir. 1984). Such
conduct shows “that [the] defendant was aware of a serious risk of
death or serious bodily harm.” Id. A court can infer malice when
a person uses a weapon “in a manner as may be expected naturally
and probably to cause death.” United States v. Celestine, 510 F.2d
457, 459 (9th Cir. 1975). Lilly pointed a gun at Platt’s head,
Lilly and Kwame threatened Platt’s life, and Kwame shot Platt in
the head with a gun. These actions show reckless and wanton
conduct, and thus the district court properly found that Lilly
acted with malice.
The facts also support a finding of premeditation. Lilly and
Kwame threatened Platt’s life on the night in question. Lilly
pointed his gun at Platt’s head, but then agreed to fight him
“fairly.” However, Lilly placed his gun where it was readily
available to Kwame, who stood just feet away. When Platt began
winning the fight, Kwame picked up Lilly’s gun, walked over, and
shot Platt in the head. Given these facts, it was reasonable for
the district court to conclude that Lilly and Kwame always intended
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to murder Platt. Thus, the court properly found that premeditation
existed.
Because Lilly acted with premeditation and malice, we find
that the district court did not err in cross-referencing the first
degree murder guideline, and we affirm this part of the court’s
sentence.
III.
The second issue is whether the district court erred in
imposing a variance sentence based upon the nature and
circumstances of the offense, and in ordering it to run
concurrently to a state sentence.
After United States v. Booker, 543 U.S. 220 (2005), sentencing
courts must use a multi-step process in determining a defendant’s
sentence. First, “after making appropriate findings of fact,
[sentencing courts] must initially calculate the appropriate
guideline range.” United States v. Hampton, 441 F.3d 284, 287 (4th
Cir. 2006). Then, the court must determine whether a sentence in
that range “serves the factors set forth in § 3553(a).” Id. If
the sentence does not serve the factors set forth in § 3553(a), the
court should determine “whether a traditional upward or downward
departure under the guidelines would be appropriate.” Id.; see
also United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).
Finally, if a downward or upward departure is not available, “a
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court may impose a variance sentence . . . provided that the
sentence falls within the statutory limits for the underlying
offense and is reasonable. But the sentencing court must
adequately explain the reasons for the variance.” Hampton, 441
F.3d at 287 (internal citations and quotations omitted); Moreland,
437 F.3d at 287. The reasons for the variance must be tied to the
factors set forth in 18 U.S.C. § 3553(a). Hampton, 441 F.3d at
287. Because concurrent sentences reduce the amount of time a
defendant serves overall for an underlying federal conviction, they
are analyzed as variance sentences. See United States v. Curry,
461 F.3d 452, 460-61 (4th Cir. 2006).
We review a post-Booker sentence for reasonableness.
Moreland, 437 F.3d at 433. Sentences outside of the advisory
guideline range will be found unreasonable and vacated if the
sentencing court fails to give adequate reasons for imposing the
variance or relies upon improper factors. United States v. Perez-
Pena, 453 F.3d 236, 241 (4th Cir. 2006). “Generally, if the
reasons justifying the variance are tied to § 3553(a) and are
plausible, the sentence will be deemed reasonable.” Moreland, 437
F.3d at 434.
The district court granted Lilly a variance sentence from 120
months to 102 months and ordered the federal sentence to run
concurrently to Lilly’s state drug sentence. At the time of his
federal sentencing, Lilly was predicted to be released from state
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custody on November 8, 2007. Thus, the imposition of a concurrent
sentence effectively reduced Lilly’s federal sentence by another
twenty months.
The court granted the variance because of the nature and
circumstances of the offense. 18 U.S.C. § 3553(a)(1). The court
reasoned that a variance was warranted because (1) the victim
contributed to his own death by returning to fight Lilly after
Lilly had already pointed a gun at him; (2) the victim was much
larger than Lilly; and (3) Lilly’s brother actually fired the shot
that killed the victim.
The government contends that the district court did not
provide enough detail before granting the variance and ordering the
sentence to run concurrently to Lilly’s state sentence. However,
the district court’s statements at the sentencing hearing make it
clear that the court sufficiently considered the § 3553(a) factors.
See United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006)(“To
establish the reasonableness of a sentence, a district court need
not explicitly discuss every § 3553(a) factor on the record.
Rather, the record must reflect that the court adequately and
properly considered the § 3553(a) sentencing factors.” (citations
omitted)). In addition, the court adopted, on the record, the
findings of the Presentence Investigation, which detailed Lilly’s
criminal history and relevant conduct. Thus, the district court
implicitly considered all of the § 3553(a) sentencing factors
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before imposing a variance sentence. See Hampton, 441 F.3d at 289(Motz, J., concurring)(stating that courts must not give excessive
weight to the nature and circumstances of the offense at the
expense of the other factors in § 3553(a), such as a defendant’s
prior convictions and pending charges).
We therefore conclude that the district court’s reasoning was
sufficient for imposing the variance sentence, and in ordering the
variance sentence to run concurrently to the state sentence.
IV.
For the foregoing reasons, we affirm the district court’s
sentence.
AFFIRMED
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