United States v. Michael Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4505
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL JUAN SMITH, a/k/a Flame, a/k/a Junior,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior
District Judge. (3:13-cr-00966-JFA-1)
Submitted: December 16, 2014 Decided: February 6, 2015
Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Stacey D. Haynes, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Juan Smith appeals from his 120-month sentence
entered pursuant to his guilty plea to possession of a firearm
and ammunition by a convicted felon. On appeal, Smith
challenges the application of the attempted murder
cross-reference pursuant to U.S. Sentencing Guidelines Manual
§§ 2K2.1(a)(4)(A), 2K2.1(c)(1)(A), 2X1.1 (2013). He also
challenges the district court’s imposition of an alternative
120-month variance sentence, in the event that he is successful
on his first claim. We affirm.
Smith argues that the district court’s application of
the attempted murder cross-reference was improper, because
(1) the facts did not show the malice necessary for attempted
murder, and (2) the facts supported a finding of self-defense.
We review the district court’s factual findings for clear error
and its legal conclusions de novo. United States v.
Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013), cert. denied,
134 S. Ct. 280 (2013). The Government must prove the facts
underlying a cross-reference by a preponderance of the evidence.
United States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012).
Without objection by either party, the district court
relied on the witness statements in the presentence report, as
well as a surveillance video, in determining that the
cross-reference was applicable. While the witnesses were not in
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complete agreement as to all the facts of the incident, they
generally agreed that Smith and his friends were involved in a
verbal altercation with another group of men while outside in
the Five Points area. Smith had armed himself in anticipation
of a “beef” prior to seeing the other men. The altercation
concluded with Smith shooting at the other men and instead
hitting, and permanently paralyzing, an innocent bystander.
“Murder is the unlawful killing of a human being with
malice aforethought,” 18 U.S.C. § 1111 (2012). Malice
aforethought is a necessary component of 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.” United States v. Williams, 342 F.3d 350, 356 (4th Cir.
2003) (internal quotation marks omitted). In order to show
attempted murder, the Government must prove that the person
(1) had a culpable intent to commit the crime, and (2) he took a
substantial step toward the completion of that crime. United
States v. Engle, 676 F.3d 405, 419-20 (4th Cir. 2012).
Opening fire on a crowded street is clearly reckless
and wanton. See, e.g., Thomas v. Harrelson, 942 F.2d 1530, 1532
(11th Cir. 1991). Moreover, Smith brought a gun with him in
case he got into an altercation, and he admitted this to another
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inmate after the incident. Smith also told this inmate that he
shot at the other men as they walked away, and the witness
statements, on the whole, support this conclusion. Accordingly,
the evidence was sufficient to show by a preponderance of the
evidence that Smith had the culpable intent to commit murder.
Although self-defense is irrelevant to the underlying
firearm conviction here, Smith may assert self-defense in
objecting to the application of a particular Guideline. Under
federal law, a justification defense is available to a defendant
where he:
(1) was under unlawful and present threat of death or
serious bodily injury;
(2) did not recklessly place himself in a situation
where he would be forced to engage in criminal
conduct;
(3) had no reasonable legal alternative . . . ; and
(4) [established] a direct causal relationship
between the criminal action and the avoidance of
the threatened harm.
United States v. Ricks, 573 F.3d 198, 202 (4th Cir. 2009); see
United States v. Gore, 592 F.3d 489, 491 n.* (4th Cir. 2010)
(noting that “[m]ore recent cases have grouped the defenses of
duress, self-defense, and necessity under a single, unitary
rubric: justification” (internal quotation marks omitted)). To
establish self-defense under South Carolina law, four elements
must be present:
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(1) the defendant must be without fault in bringing
on the difficulty;
(2) the defendant must have been in actual imminent
danger of losing his life or sustaining serious
bodily injury, or he must have actually believed
he was in imminent danger of losing his life or
sustaining serious bodily injury;
(3) if his defense is based upon his belief of
imminent danger, defendant must show that a
reasonably prudent person . . . would have
entertained the belief . . . ; and
(4) the defendant had no other probable means of
avoiding the danger.
State v. Slater, 644 S.E.2d 50, 52 (S.C. 2007).
We find that application of the attempted murder
cross-reference was proper because Smith could not colorably
assert self-defense under either federal or South Carolina law.
First, as to federal law, Smith’s actions “recklessly place[d]
himself in a situation where he would be forced to engage in
criminal conduct.” Ricks, 573 F.3d at 202. Smith armed himself
prior to going out that evening because he thought there might
be trouble. In addition, he positioned the weapon so that it
was easily accessible.
Further, even assuming that, as Smith argues, Smith
was told that one of the other men had a gun and that the men
intended to hurt Smith or one of his friends, none of the
witnesses actually saw a gun or provided any actions or
statements supporting an actual present risk of physical harm to
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Smith or anyone else. Moreover, immediately after the shooting,
Smith told police that he was sorry, but did not aver that he
acted in self-defense, and in Smith’s later statement to
authorities, he denied even firing the gun. Based on the
evidence in the record, we conclude that Smith failed to show by
a preponderance of the evidence that he was under a present
threat of death or bodily harm.
Similarly, Smith could not credibly assert
self-defense under South Carolina law. He armed himself in
anticipation of a possible “beef,” and at the first hint of a
threat, Smith opened fire in a crowded area rather than
attempting to leave or merely brandishing his gun. In addition,
as discussed above, Smith has not shown he was in imminent
danger. Therefore, the cross-reference was properly applied.
Because the cross-reference was correctly applied,
Smith’s appeal from the alternative variance sentence is moot.
Accordingly, we affirm Smith’s sentence. 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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