Certiorari dismissed, November 30, 2007



                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4970



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MUTTAQIN F. ABDULLAH, a/k/a       King,    a/k/a
Clayton Montray Pinckney,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(3:05-cr-00014-MBS-AL)


Submitted:   June 29, 2007                 Decided:   July 13, 2007


Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


W. Michael Duncan, AUSTIN, LEWIS & ROGERS, P.A., Columbia, South
Carolina, for Appellant.      Reginald I. Lloyd, United States
Attorney, C. Todd Hagins, Robert F. Daley, Jr., Assistant United
States Attorneys, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Mattaqin F. Abdullah appeals his conviction and life

sentence imposed for being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C.A. §§ 922(g)(1), 924(a)(2),

924(e)(1) (West 2000 & Supp. 2007).              On appeal, Abdullah argues

that the district court erred in denying a motion for a mistrial

after    a   Government     witness    briefly    testified   to    a   subject

prohibited by an in limine ruling; erred in applying a first degree

murder cross reference at sentencing when the jury did not find

facts of murder; and erred in applying the first degree murder

cross reference and finding that the murder was premeditated.

Finding no error, we affirm.

             On March 14, 2004, officers from the Sumter, South

Carolina, Sheriff’s Department responded to a report of shots fired

at the Lion’s Pit Nightclub.           Abdullah was a bouncer employed by

the club that night to provide security during a concert. Abdullah

previously     worked     at   the    Lion’s   Pit   on   several   occasions.

Abdullah’s counsel filed a motion in limine, which was granted by

the court in part, to limit evidence regarding the shootings at

trial.       The court ruled that the Government may discuss “the

pointing and presenting of a firearm” with regard to the charge,

but that “no testimony or other evidence regarding the alleged

murder or attempted murder on March 14, 2004, will be allowed.”

(J.A. 44-45).


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              The club closed in the early morning hours of March 14,

2004.    It was customary for patrons at the club to sit in their

vehicles in the parking lot waiting to leave.                  As they waited, they

discharged celebratory gunfire into the air.                    The shots were not

fired at the club.         Abdullah testified that he had seen and heard

gun shots while the club closed on previous occasions when he

worked there.

              The bouncers exited the club and stood by the doors so

that no one could re-enter.              Abdullah became agitated with the

gunfire and said, “Man, they playing around, they are shooting in

the air.      I’m going to shoot for real.”             (J.A. 236).    He also said,

“I’m    not   going   to   shoot    in   the     air,    I’m   going   to    shoot   at

somebody.”      (J.A. 123).        While the patrons were shooting in the

air, a bouncer went to his car to retrieve a handgun.                       Tommy Boyd

testified that Abdullah told the bouncer, “Give me the gun . . .

[j]ust give me the gun. . . . I know what to do.”                 (J.A. 121).        The

bouncer gave Abdullah the firearm.               As he did so, another bouncer,

Coral Scott, became involved in an altercation with a patron.                        No

firearms or weapons were involved. Thurston Lane, another bouncer,

got between Scott and the patron. Scott then heard gunfire, looked

book, and saw Abdullah firing the shots.                       Tommy    Boyd      and

Thurston Lane confirmed that they observed Abdullah fire into a

crowd of approximately forty to fifty people from twenty-five to

thirty feet away.          Boyd testified that Abdullah did not begin


                                         - 3 -
shooting until approximately three to four minutes after the

patrons stopped shooting in the air.       Abdullah fired approximately

eight or nine times to his left and right.            One bullet hit David

Way on the back of the head and exited through his forehead.              He

was pronounced dead at Toumey Hospital.         Merrill McBride was also

injured by a bullet striking his left side.

           Lane testified that, after the shooting, he observed

Abdullah return inside the club.       Lane followed Abdullah and saw

him enter the restroom.        Abdullah later rejoined the group of

bouncers who sat in front of the club waiting to be paid.               Lane

informed officers arriving on the scene that Abdullah was the

shooter and directed them to the restroom Abdullah entered after

the shooting.

           Officers recovered a Taurus .45 caliber semi-automatic

pistol from a hole in the restroom’s ceiling.               The firearm was

loaded with six unfired Federal brand .45 caliber cartridges.

Abdullah was arrested based on witness statements.             Abdullah was

searched and a .45 caliber Federal brand cartridge was found in his

jacket pocket.     Abdullah’s fingerprint was found on the firearm’s

magazine. Both parties stipulated that David Way’s “entrance wound

was   consistent   with   being   caused   by   a   large   caliber   bullet,

consistent with either a .45 caliber bullet, .40 caliber bullet, or

10 millimeter bullet.”     In addition, both parties stipulated that




                                   - 4 -
Way died due to “massive cerebral brain damage and hemorrhaging due

to a gunshot wound to the back of the head.”     (J.A. 592).

            Despite the Government’s warning on the in limine issue,

witness Coral Scott testified on direct examination that after the

shootings he ran backwards to the club’s door “and that’s when

people came out screaming, ‘Somebody has been shot.’”    (J.A. 176).

Abdullah’s counsel moved for a mistrial based on the witness’s

statement that someone had been shot.     The Government argued that

the witness’s statement was that someone else said that someone had

been shot, but was not direct testimony that someone was shot by

Abdullah.    Abdullah’s counsel declined a curative instruction,

because he thought it would draw more attention to the testimony,

and instead stated that a mistrial was the only remedy.    The court

denied Abdullah’s motion for a mistrial.

            Abdullah and his counsel had an ex parte discussion with

the court regarding whether Abdullah would testify.            Counsel

advised Abdullah not to testify; however, Abdullah decided to

exercise his right.    The court and counsel informed Abdullah that

his testimony would be in the narrative form, that he was also

bound by the court’s in limine ruling, and that if he opened the

door to the murder and injury, then the Government could pursue

testimony about it.

            Abdullah testified that he was outside in the parking lot

when the club cleared out, but that he returned inside when he


                                - 5 -
heard the patrons’ gunfire. He testified that he borrowed a jacket

from another bouncer, and he did not know that there was ammunition

in the jacket pocket.           He testified that the crowd was very

emotional and stated that “their home boy had been shot and one of

the   bouncers   was   accused    of    it     in   some   way.”     (J.A.   547).

Abdullah’s testimony was that following the commotion regarding

David Way’s murder, someone came up to him and told him to check

the   bathroom   because    a    toilet      was    broken.        During    cross-

examination, Abdullah again denied firing shots or handling the

firearm or ammunition.

           Abdullah first argues that the district court erred in

denying a mistrial based on Scott’s testimony, because it was in

violation of the court’s ruling to exclude testimony about the

murder and injury and no remedy short of a mistrial would provide

him with a fair trial.     He argues that he was compelled to testify

that he was innocent of the shooting by the court’s failure to

grant a mistrial.      The Government maintains that the remark was

fleeting, Abdullah was not coerced into testifying, and no undue

prejudice resulted from the remark.

           We review the denial of a motion for a mistrial for an

abuse of discretion.     See United States v. Dorlouis, 

,

257 (4th Cir. 1997).       “In order for the trial court's ruling to

constitute such an abuse of discretion, the defendant must show

prejudice; no prejudice exists, however, if the jury could make


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individual guilt determinations by following the court's cautionary

instructions.” United States v. Dorsey, 

, 817 (4th Cir.

1995) (internal citation omitted).

           We conclude that the Government witness’s unexpected

statement that patrons at the club said someone had been shot did

not require a mistrial.          The witness’s statement was brief and

isolated   and    was   not    purposely      elicited    by   the   Government.

Moreover, the district court would have given an immediate curative

instruction telling the jury to disregard the witness’s statement,

had Abdullah requested it. Abdullah chose for the court to refrain

from issuing a curative instruction.               The jury is presumed to

follow curative instructions given by the court. Hinkle v. City of

Clarksburg, 

, 427 (4th Cir. 1996).              Had Abdullah agreed

to the remedy of a curative instruction, it would have been

presumed that the jury would have followed the instruction.

           Scott’s reference to a person being shot was the only

reference to the murder and injury during the four day trial until

Abdullah testified.      The Government presented fifteen witnesses.

This   demonstrates     that    the   remark     was     indeed   fleeting   and

incidental.      See United States v. Vogt, 

, 1193 (4th

Cir. 1990) (finding lack of prejudice to warrant mistrial where

witness’s impermissible testimony “came up incidentally, neither

the witness nor the prosecution made any repeated reference to it,




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and   the   court   carefully    instructed          as   to   [the   testimony’s]

permissible use.”).

            In addition, there was testimony from four eyewitnesses

who saw Abdullah possess the firearm.                 There was also testimony

that a bullet was found in Abdullah’s jacket pocket matching the

caliber and brand of bullets found in the firearm.                      Abdullah’s

fingerprints    were    also   found    on     the   firearm’s    magazine.    We

therefore conclude that Abdullah has not shown undue prejudice and

the jury could have found sufficient evidence of firearm possession

to convict Abdullah without relying on any inference from Scott’s

impermissible statement.

            Next, Abdullah objects to the district court sentencing

him based on a cross reference to first degree murder.                  He argues

that sentencing on a murder cross reference violates his Sixth

Amendment rights, relying on Apprendi v. New Jersey, 

(2000), Ring v. Arizona, 

(2002), and United States v.

Booker,     

(2005).        In Booker, the Supreme Court held

that Blakely v. Washington, 

(2004), applies to the

federal Sentencing Guidelines and that the mandatory Guidelines

scheme, which provided for sentence enhancements based on facts

found by the court by a preponderance of the evidence, violated the

Sixth Amendment.       See 

, 245.              The Court

remedied the constitutional violation by severing and excising the

statutory provisions that mandate sentencing and appellate review


                                       - 8 -
under the Guidelines, thus making the Guidelines 

.

                 However, in imposing a sentence post-Booker, courts still

must calculate the applicable Guidelines range after making the

appropriate findings of fact and consider the range in conjunction

with other relevant factors under the Guidelines and 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2007).                United States v. Moreland, 

, 432 (4th Cir.), cert. denied, 

(2006).

Here,      the    district   court        sentenced     Abdullah    post-Booker     and

appropriately treated the Guidelines as advisory.                       The sentencing

court properly made factual findings concerning sentencing factors

by a preponderance of the evidence, including whether first degree

murder     was     related   to     the    count   of   conviction.        See   United

States v. Morris, 

, 72 (4th Cir. 2005), cert. denied,

127   S.    Ct.     121   (2006).         The   court   sentenced    Abdullah    after

considering        and    examining       the   Sentencing   Guidelines       and   the

§ 3553(a) factors, as instructed by Booker. Therefore, there is no

Sixth Amendment error.

                 Finally, Abdullah argues that the evidence presented by

the Government was not sufficient to support a finding of murder in

the first degree by a preponderance of the evidence for sentencing

purposes.          U.S.   Sentencing       Guidelines     Manual    §    2K2.1   (2003)

provides a cross-reference to the most analogous homicide guideline

to be applied if death resulted from the firearm offense and the


                                           - 9 -
cross reference would yield a higher offense level than the one

which would otherwise apply.            See USSG § 2K2.1(c)(1)(B).               This

court reviews a district court’s factual findings supporting the

applicability     of   the   murder    cross-reference         for    clear    error.

United States v. Crump, 

, 467-68 (4th Cir. 1997).                       If

the   district    court’s    findings       “may   rationally    be    said    to   be

supported by a preponderance of the evidence, they may not be

disturbed on appeal.”        

maintains that the

shooting was random and not premeditated. Abdullah submits that he

should have been sentenced based only on second degree murder.

           “Malice     aforethought,         as     provided    in    18   U.S.C.A.

§ 1111(a) (West Supp. 2007), is the distinguishing characteristic

which,   when     present,    makes     a    homicide     murder      rather     than

manslaughter.”      United States v. Fleming, 

, 947 (4th

Cir. 1984).      To show that malice is present, the government is not

required “to show an intent to kill or injure.”                 United States v.

Williams, 

, 356 (4th Cir. 2003) (citing 

).     Instead, “malice 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 serious bodily harm.”                       

citation omitted).




                                      - 10 -
           The first degree murder cross reference applies in cases

of   premeditated     killing.        USSG   §      2A1.1,    cmt.     (n.1).

“‘Premeditation’ is a fully formed conscious purpose to kill that

may be formed in a moment and need only exist for such time as will

allow the accused to be conscious of the nature of the act he is

about to commit and the probable result of that act.”          40 Am. Jur.

2d Homicide § 44 (2007).

           At   sentencing,    the   Government   stated     that    Abdullah

stipulated to malice aforethought.        The district court determined

Abdullah   acted    with   premeditation.     The    court   cited     Lane’s

statement that Abdullah said he was going to shoot for real and

Boyd’s testimony that Abdullah told him to give him the gun because

he knew what to do with it.      We find that these facts demonstrate

that Abdullah consciously and maliciously fired into the crowd of

people and the first degree murder cross reference was appropriate.

           We therefore affirm the 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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