UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4685


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MILTON CHAVARRIA, a/k/a Syko,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00121-RJC-DSC-5)


Submitted: May 31, 2017                                           Decided: June 27, 2017


Before GREGORY, Chief Judge, and SHEDD and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian Michael Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North Carolina, for
Appellant. Jill Westmoreland Rose, United States Attorney, William M. Miller, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Milton Chavarria appeals his below-Guidelines 228-month sentence imposed

following his guilty plea to conspiracy to violate the Racketeer Influenced and Corrupt

Organizations Act, in violation of 18 U.S.C. § 1962(d) (2012), based on his involvement

with the MS-13 gang.      Chavarria raises three arguments on appeal, none of which

withstands review.

       First, Chavarria challenges his base offense level, which the district court arrived

at by cross-referencing the attempted first degree murder Guideline. We review the

factual findings underlying a cross-reference for clear error. United States v. Ashford,

, 380, 384 (4th Cir. 2013). Here, the Sentencing Guidelines instructed the

district court to cross-reference the base offense level for the racketeering activity

underlying Chavarria’s conspiracy offense. See U.S. Sentencing Guidelines Manual

§ 2E1.1 (2015). The parties dispute whether that activity was attempted first or second

degree murder. Attempted first degree murder compels a base offense level of 33, but

attempted second degree murder warrants a base offense level of 27. USSG § 2A2.1(a).

“First-degree murder requires proof of premeditation, while second-degree murder

simply requires proof of malice aforethought.”        

(internal

quotation marks omitted). The government need not prove the defendant intended to

injure or kill to establish malice. United States v. Williams, 

, 356 (4th Cir.

2003). Instead, the government can prove malice by showing the defendant’s awareness

that his conduct created a serious risk of death or bodily harm. 

evidence supports the district court’s findings of premeditation and malice.

According to an initial statement by a gang recruit, Chavarria directed the recruit to shoot

the first black man that walked by them and then Chavarria served as the getaway driver.

While the recruit and other coconspirators changed their stories, Chavarria’s jail calls

established that he knew about the shooting beforehand and was in the area of the

shooting when it occurred. Police also confirmed that Chavarria’s car was used to flee

the scene after the shooting. Chavarria’s involvement in, or at least awareness of, the

planning of the shooting and subsequent assistance with the getaway amounted to

premeditation. The cases Chavarria cites to contest a finding of premeditation do not

support his argument because they do not distinguish between first and second degree

murder. See United States v. Burns, 

(4th Cir. 2015); 

(4th Cir. 2013). Moreover, shootings create a serious risk of death or bodily harm,

and therefore, by planning the shooting, Chavarria possessed the requisite malice. Thus,

we conclude that the district court did not clearly err when it cross-referenced the

Guideline for attempted first degree murder.

       Second, Chavarria challenges the district court’s refusal to reduce his offense level

by two points for acceptance of responsibility, and enhancement of his offense level by

two points for attempted obstruction of justice. We review both rulings for clear error.

United States v. Smoot, 

, 219-20 (4th Cir. 2012) (acceptance of

responsibility); United States v. Hughes, 

, 559 (4th Cir. 2005) (obstruction

of justice). Chavarria argues that those rulings were clear error because they derived

from statements made in his two pro se filings, which according to Chavarria, the district

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court could not rely on in light of W.D.N.C. Local Rule 47.1(H). That rule, however,

applies to motions, not to Chavarria’s pro se filings, which included a document titled,

“Affidavit of Facts” and a letter. See W.D.N.C. Local Rule 47.1 (“[T]he Court will not

ordinarily entertain a motion filed by a criminal defendant who is still represented by

counsel . . . .”) (emphasis added). Because the district court properly considered the pro

se filings and Chavarria has conceded that the filings jeopardized his claim to acceptance

of responsibility, the district court did not clearly err when it denied the acceptance of

responsibility adjustment and applied the obstruction of justice enhancement.

      Third, Chavarria, while labeling his argument as a challenge to the substantive

reasonableness of his sentence, actually argues that the district court committed harmful,

procedural error in calculating his Sentencing Guidelines range by applying the attempted

first degree murder cross-reference, refusing to apply the acceptance of responsibility

adjustment, and enhancing his sentence for obstruction of justice. We review sentences

for procedural and substantive reasonableness under “a deferential abuse-of-discretion

standard.” Gall v. United States, 

, 51 (2007). In assessing procedural

reasonableness, we consider factors such as whether the district court properly calculated

the Guidelines range, considered the 18 U.S.C. § 3553(a) (2012) factors, and sufficiently

explained the sentence imposed.     

significant procedural errors, we

evaluate the substantive reasonableness of a sentence under “the totality of the

circumstances.” 

reasonable within- or below-Guidelines sentences.

United States v. Louthian, 

, 306 (4th Cir. 2014). This “presumption can



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only be rebutted by showing that the sentence is unreasonable when measured against the

18 U.S.C. § 3553(a) factors.” 

reasons described above, the district court did not miscalculate Chavarria’s

Guidelines range. Because Chavarria has failed to identify any other potential procedural

errors, we turn to the substantive reasonableness of his sentence. We conclude that

Chavarria has failed to rebut the presumption of reasonableness afforded his below-

Guidelines sentence and therefore that the district court did not abuse its discretion when

sentencing Chavarria.

       Accordingly, we affirm the district court’s judgment. 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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