UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5245


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRELL ROGERS, a/k/a Tavon,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:09-cr-00467-WMN-1)


Submitted:   November 10, 2011            Decided:   December 7, 2011


Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Joanna Silver, Staff
Attorney,   Baltimore,  Maryland,   for   Appellant.     Rod J.
Rosenstein, United States Attorney, Judson T. Mihok, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Terrell Rogers appeals his 292-month prison sentence

for convictions of possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1) (2006), possession with

intent    to    distribute         cocaine       base    in    violation       of    21    U.S.C.

§ 841(a)(1)          (2006),       and     conspiracy          to    engage     in        witness

tampering       in    violation       of    18       U.S.C.    § 1512(k)       (2006).        We

affirm.

               We    review    a     sentence        under     a    deferential      abuse     of

discretion standard.               Gall v. United States, 

, 51

(2007).        The first step in this review requires us to inspect

for    procedural       reasonableness           by     ensuring       that    the    district

court     committed       no     significant           procedural         errors,     such     as

failing to calculate or improperly calculating the Guidelines

range,    failing       to     consider      the        18    U.S.C.      § 3553(a)       (2006)

factors, or failing to adequately explain the sentence.                                   United

States v. Boulware, 

, 837-38 (4th Cir. 2010).                                      We

then    consider       the    substantive         reasonableness          of   the    sentence

imposed, taking into account the totality of the circumstances.

.                    We presume that a sentence within a

properly-calculated            Guidelines         range       is    reasonable.           United

States v. Allen, 

, 193 (4th Cir. 2007).

               Rogers        first       asserts        that        the    district        court

improperly          calculated       his   Guidelines          range      by   applying      the

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attempted first degree murder cross reference.                                A sentencing

court     may      find   the     facts      relevant        to     applying      the    cross

reference by a preponderance of the evidence as long as the

Guidelines are treated as advisory and the sentence falls within

the statutory maximum authorized by the jury’s verdict.                                 United

States v. Wright, 

, 267-68 (4th Cir. 2010).

              For      Guidelines       purposes,           first    degree       murder    is

defined as conduct that would constitute first degree murder

under   18      U.S.C.    § 1111       (2006).          U.S.      Sentencing      Guidelines

Manual (“USSG”) § 2A2.1 cmt. n.1 (2009).                            The statute defines

first degree murder to include “the unlawful killing of a human

being     with      malice      aforethought.               Every    murder       perpetrated

by . . . any . . . kind of willful, deliberate, malicious, and

premeditated killing . . . is murder in the first degree.”                                  18

U.S.C. § 1111(a).              Any other murder is murder in the second

degree.      

is a necessary component of first

or second degree murder; it may be inferred from the whole facts

and circumstances surrounding the killing.                            United States v.

Williams,       

,       356       (4th   Cir.     2003).        “[M]alice

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

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serious bodily harm.”             

marks omitted).

An intent to kill or injure is not a necessary component of

malice.      

murder was not at issue here, a finding

of premeditation was essential for a finding of attempted first

degree      murder.        

   previously        stated    that     “no

particular     period      of    time    for   reflection     is    essential       to    a

finding of premeditation and deliberation.”                        United States v.

Sinclair, 301 F. App’x 251, 255 (4th Cir. 2008) (per curiam)

(citing Faust v. North Carolina, 

, 871 (4th Cir.

1962)).      “While the amount of time for reflection may vary, ‘it

is    the    fact     of   deliberation,        of   second    thought        that       is

important.’”          Sinclair,    301    F.    App’x   at   255    (quoting    United

States v. Frappier, 

, 261 (1st Cir. 1986)).

              We conclude that the facts are sufficient to support

the    district       court’s     finding       of   malice    aforethought           and

premeditation.         Rogers had ample opportunity to reflect on his

decision to disengage from a fistfight and retrieve the gun, to

get into the car with the victim, and to aim the gun at the

victim at point blank range.                   The evidence also supported a

finding that the gun discharged before the car’s final crash,

thus supporting a finding that it is more likely than not that

Rogers intentionally fired the gun at the victim.                           We find no

reversible         error   with    the    district      court’s      finding     by       a

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preponderance of the evidence that Rogers formed the deliberate

premeditation necessary to support the attempted first degree

murder cross reference.

              Rogers   also    claims     error    with   the     district     court’s

depth   of    explanation      in    imposing     his   sentence.         A   district

court’s explanation in imposing a sentence must be “sufficient

‘to satisfy the appellate court that [the district court] has

considered the parties’ arguments and has a reasoned basis for

exercising       [its]     own       legal      decisionmaking           authority.’”

(quoting Rita v. United States, 

, 356 (2007)).               But when a sentencing court decides

simply to apply the Guidelines, “doing so will not necessarily

require lengthy explanation.”             

.              “This is

because      guidelines     sentences        themselves     are     in    many      ways

tailored to the individual and reflect approximately two decades

of   close     attention      to    federal    sentencing       policy.”         United

States v. Johnson, 

, 639 (4th Cir. 2009) (internal

quotation marks omitted).

              We find that the district court adequately explained

its basis for imposing Rogers’ sentence.                    The district court

noted   the    extensiveness        of   Rogers’   criminal       history     and    the

troubling nature of his offenses.                 A sentencing court need not

“robotically tick through § 3553(a)’s every subsection,” United

States v. Johnson, 

, 345 (4th Cir. 2006), nor must

                                           5
it explicitly state its rationale for the rejection of every

unsuccessful   argument   brought    before    it.     Given   the    within-

Guidelines sentence - indeed, the sentence imposed was at the

very bottom of the properly calculated Guidelines range - the

district court satisfied its duty of explanation.

           We therefore affirm the district court’s 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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