United States v. King ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4726
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONNELL KING, a/k/a Life,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:02-cr-00047-CWH-1)
Submitted: May 2, 2007 Decided: August 15, 2007
Before WIDENER* and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Rose Mary
Parham, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
*
Judge Widener was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
PER CURIAM:
Ronnell King was convicted by a jury of carjacking,
possession of a firearm in relation to a carjacking, and being a
felon in possession of a firearm. We previously affirmed King’s
convictions and sentence, see United States v. King, 113 F. App’x
504 (4th Cir. Sept. 15, 2004) (unpublished), but the Supreme Court
vacated this court’s judgment and remanded for reconsideration in
light of United States v. Booker, 543 U.S. 220 (2005). On remand,
we again affirmed King’s convictions, but we vacated his sentence
and remanded for resentencing in light of Booker. See United
States v. King, 178 F. App’x 314 (4th Cir. May 4, 2006)
(unpublished). On remand, the district court sentenced King to 235
months imprisonment. King’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there are
no meritorious grounds for appeal, but questioning whether the
district court erred in resentencing when, in connection with
calculating the offense level for the felon-in-possession charge,
it cross-referenced the base offense level for attempted first
degree murder rather than that for a lesser degree of attempted
murder. King was advised of his right to file a pro se brief, and
did so, asserting that his within guidelines sentence was
unreasonable, that the district court failed to analyze properly
the factors set forth in 18 U.S.C. § 3553(a), and that the
enhancements applied by the district court violated his Sixth
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Amendment rights. Because our review of the record discloses no
reversible error, we affirm King’s sentence.
When setting the base offense level for a felon-in-
possession charge under 18 U.S.C.A. § 922(g), section 2K2.1 of the
Sentencing Guidelines requires the district court to apply U.S.S.G.
§ 2X1.1 “[i]f the defendant used or possessed any firearm or
ammunition in connection with the commission or attempted
commission of another offense” and if the application of § 2X1.1
results in an offense level higher than otherwise provided for by
§ 2K2.1. See U.S.S.G. § 2K2.1(c)(1) (2002). Section 2X1.1
requires application of “[t]he base offense level from the
guideline for the substantive offense, plus any adjustments from
such guideline for any intended offense conduct that can be
established with reasonable certainty.” U.S.S.G. § 2X1.1(a).
The evidence presented at trial established that King
shot a man in the back during the course of one of the robberies in
the crime spree that gave rise to the charges against King. The
district court therefore looked to U.S.S.G. § 2A1.1, which applies
to attempted murders and assaults with intent to commit murder.
The district court assigned King a base offense level of 28, which
applies “if the object of the offense would have constituted first
degree murder.” U.S.S.G. § 2A2.1(a)(1). On appeal, counsel for
King contends that the district court should have instead assigned
a base offense level of 22, which applies when the object of the
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offense would not have constituted first-degree murder. See
U.S.S.G. § 2A2.1(a)(2). King argues that the higher base offense
level would be appropriate only where there was evidence of
premeditation, which he contends was absent in his case.
Murder is defined as “the unlawful killing of a human
being with malice aforethought. Every murder perpetrated by . . .
willful, deliberate, malicious, and premeditated killing . . . is
murder in the first degree.” 18 U.S.C.A. § 1111(a) (West Supp.
2006). A murder committed during the perpetration of a robbery is
also first degree murder. See id. Given the evidence that was
presented at trial, we find no error in the district court’s
determination that the object of the offense would have amounted to
first degree murder.
Moreover, we have reviewed King’s claims raised in his
supplemental brief, and find them to be without merit. In
accordance with Anders, we have reviewed the entire record in this
case and have found no meritorious issues for appeal. We therefore
affirm King’s sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client.
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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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