Case vacated and remanded by Supreme
Court order filed 2/23/01
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 99-4943

PATRICK FURMAN BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Dennis W. Shedd, District Judge.
(CR-98-282-DWS)

Submitted: June 27, 2000

Decided: July 27, 2000

Before WIDENER, WILKINS, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mark R. Calhoun, Sr., LAW OFFICE OF MARK R. CALHOUN,
Lexington, South Carolina, for Appellant. J. Rene Josey, United
States Attorney, Scarlett Wilson, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

A jury convicted Patrick Furman Brown of conspiracy to distribute
and possess with intent to distribute crack cocaine, in violation of 21
U.S.C.A. § 846 (West 1999); three counts of distribution and posses-
sion with intent to distribute crack, in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999); and using and carrying a firearm during and
in relation to a drug trafficking crime, in violation of 18 U.S.C.A.
§ 924(c) (West 2000). The court sentenced him to life imprisonment
on the conspiracy count, to 480-month concurrent terms on the distri-
bution counts, and to a consecutive sixty-month term on the § 924(c)
charge. Brown appeals his sentence, asserting that the district court
erred sentencing him to life imprisonment on the conspiracy count.
We affirm.

At sentencing, the district court applied the cross-reference in U.S.
Sentencing Guidelines Manual § 2D1.1(d)(1) (1998), to the first-
degree murder guideline, USSG § 2A1.1, finding that Brown shot
Henry Blackwell with premeditation. We review the district court's
legal determinations de novo and its findings of fact for clear error.
See United States v. Dawkins, 

, 714 (4th Cir.), cert.
denied, ___ U.S. ___, 

(U.S. May 15, 2000) (No.
99-9011). "If the court's findings may rationally be said to be sup-
ported by a preponderance of the evidence, they may not be disturbed
on appeal." United States v. Crump, 

, 468 (4th Cir.
1997).

Our review of the record leads us to conclude that the government
established, by a preponderance of the evidence, that the killing was
premeditated. See United States v. Downs, 

, 975 (8th Cir.
1995) (discussing circumstances courts consider in deciding whether
murder was premeditated) (citing United States v. Blue Thunder, 

, 553 (8th Cir. 1979)). Testimony at sentencing disclosed that
Brown engaged in some planning activity. He left the house from
which he sold crack carrying a loaded gun to confront a group of men
who he believed were interfering with his drug business. Although
Brown was calm as he approached the group, he informed them--in
no uncertain terms--that he controlled the drug business on Ashley

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Avenue. After Brown and Blackwell, the victim, exchanged verbal
barbs and a few punches and shoves, Brown pulled his gun, walked
up to Blackwell, held the gun two inches from Blackwell's chest,
fired, and walked away.

Although Brown asserts that there was no evidence presented to
prove that he intended to kill anyone when he approached the group,
"no particular period of time is necessary for . . . deliberation and pre-
meditation." United States v. Shaw, 

, 392 (5th Cir. 1983)
(citing Blue 

). Here, Brown had the opportu-
nity after the shoving match to give his actions a second thought. See
United States v. Brown, 

, 828 (7th Cir. 1975). Instead,
Brown walked up to Blackwell and shot him in the chest at point-
blank range.

Because the facts and circumstances surrounding Blackwell's mur-
der establish premeditation by a preponderance of the evidence, the
district court did not err in applying the cross-reference to the first-
degree murder guideline and sentencing Brown to life imprisonment.
We therefore affirm Brown's sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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