United States v. Sealey , 203 F. App'x 487 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4309
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY WAYNE SEALEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:05-cr-00901-RBH-1)
Submitted: September 27, 2006 Decided: October 24, 2006
Before WILLIAMS, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Alfred W. Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry Wayne Sealey pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of ninety-seven months imprisonment. Sealey
appeals his sentence, contending that the district court erred in
applying a cross reference to U.S. Sentencing Guidelines Manual
§ 2A2.1(a)(2) (2005) (Assault with Intent to Commit Murder;
Attempted Murder), rather than to USSG § 2A2.2 (Aggravated
Assault), and in refusing to depart downward based on the victim’s
conduct, USSG § 5K2.10, p.s. We affirm.1
In October 2004, Sealey and his friend, Charles Cribb,
went to the home of Terrance Ford because they believed Ford had
acquired drugs that had been stolen from Sealey. When they
confronted Ford outside his house and asked him to come with them,
Ford displayed a knife and refused to go with them. A few days
later, Sealey and Cribb were at a club when Ford stopped there.
Sealey approached Ford in the parking lot, and an argument followed
during which Ford drew a .22 caliber pistol. Sealey retreated to
his vehicle. Cribb got a .22 caliber rifle out of the trunk of
Sealey’s vehicle and handed it to Sealey, who fired repeatedly at
Ford and hit him in the abdomen, buttocks, right hand, left wrist,
1
Sealey also contested the district court’s refusal to depart
downward, but in a letter to this court, has abandoned the issue.
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and right thigh.2 Ford was taken to the hospital, where he
underwent surgery for serious abdominal injuries.
The guideline applicable to the offense of conviction was
USSG § 2K2.1. However, the probation officer recommended
application of the cross reference in § 2K2.1(c)(1), which directs
that, under USSG § 2X1.1, when the firearm was used in connection
with an attempt, the base offense level and adjustments for the
intended offense should be used if the resulting offense level is
higher. The probation officer applied USSG § 2A2.1 (Attempted
Murder). Under § 2A2.1(a)(2), the base offense level was 27. The
probation officer added a four-level enhancement under subsection
(b)(1)(A) because the victim sustained permanent or life-
threatening injuries. This calculation resulted in an adjusted
offense level of 31. With a three-level adjustment for acceptance
of responsibility, the final offense level was 28.3 Sealey was in
criminal history category III, which gave him a recommended
advisory guideline range of 97-121 months, reduced to 97-120 months
because the statutory maximum for the § 922(g) offense was ten
years. See USSG § 5G1.1(c)(1).
Sealey objected to application of the cross reference to
§ 2A2.1. At the sentencing hearing, defense counsel argued that
2
According to the presentence report, Sealey fired at Ford at
least eleven times.
3
Had the cross reference not been applied, the final offense
level would have been 21.
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the cross reference should be to the guideline for aggravated
assault because Ford had displayed a gun first. The district court
determined that the uncontested facts established malice
aforethought on Sealey’s part, and an intent to commit murder. The
court then decided that it would not depart downward based on
Ford’s conduct, as Sealey requested, but that it would consider the
possibility that Ford’s conduct might have contributed, although
not significantly, to provoking Sealey’s attempted murder of Ford.
After considering the advisory guidelines and the factors set out
in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the court
imposed the minimum guideline sentence of ninety-seven months.
On appeal, Sealey argues that the district court erred by
making a cross reference to the guideline for attempted murder,
§ 2A2.1, instead of to the guideline for aggravated assault,
§ 2A2.2.
When the facts are not contested, the issue is a legal
one and our review is de novo. United States v. Butner, 277 F.3d
481, 488 (4th Cir. 2002). Sealey argues that the cross reference
to the guideline for attempted murder was error because there was
no evidence that he intended to kill Ford apart from his prior
confrontation with Ford over the missing drugs and the number of
shots he fired at Ford.4 He contends that the only reasonable
4
He also suggests that the government mistakenly
misrepresented the facts by stating that Sealey went to the club
looking for Ford. Regardless of whether the government was clear
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inference is that he acted in response to Ford’s display of a
firearm. He relies on two cases where the aggravated assault
guideline was applied even though, in his view, the evidence
established actual malice. In United States v. Terry, 86 F.3d 353(4th Cir. 1996), two co-defendants were convicted of the
assimilated Virginia crime of shooting into an occupied vehicle.
The victim was not injured, but his vehicle sustained considerable
damage. Id. at 355. The issue the defendants raised on appeal was
whether the court should have applied USSG § 2B1.3(a), the
guideline for property damage or destruction. Terry thus provides
no guidance in this case. Sealey also relies on dicta in United
States v. Goodman, No. 94-9663, 1995 WL 58558 (4th Cir. Feb. 14,
1995) (unpublished). The case has no precedential value and would
not be helpful if it did, as it does not establish that § 2A2.2
should have been applied in Sealey’s case.
Murder is defined in 18 U.S.C.A. § 1111 (West Supp. 2006)
as “the unlawful killing of a human being with malice
aforethought.” To show that malice is present, the government is
not required to show an intent to kill or injure. United States v.
Williams, 342 F.3d 350, 356 (4th Cir. 2003) (citing United
States v. Fleming, 739 F.2d 945, 947 (4th Cir. 1984)). Instead,
“malice aforethought may be established by evidence of conduct
about the sequence of events, the district court reviewed the
presentence report carefully, and stated the facts accurately in
making its ruling.
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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.” Id. (internal quotation and
citation omitted).
In this case, Sealey’s conduct in shooting Ford multiple
times was at best reckless and wanton, and demonstrated a gross
deviation from a reasonable standard of care. The district court
did not err in inferring that Sealey was aware that his conduct
created a serious risk that Ford would be killed, and in therefore
applying the cross reference to § 2A2.1(a)(2).
We therefore affirm the sentence imposed by the district
court. 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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