UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 20-4352


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JORDAN ARMAND TERRELL,

                    Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:19-cr-00452-WO-1)


Submitted: July 14, 2021                                          Decided: July 28, 2021


Before KEENAN, WYNN, and RICHARDSON, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Ames C. Chamberlin, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
Carolina, for Appellant. Matthew G.T. Martin, United States Attorney, JoAnna G.
McFadden, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Jordan Armand Terrell pled guilty pursuant to a plea agreement to possession of

ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The

district court imposed a sentence of 108 months’ imprisonment. On appeal, Terrell

contends that the district court erred at sentencing by applying a cross-reference to

attempted    murder,    see   U.S.    Sentencing    Guidelines    Manual     §§ 2A2.1(a)(2),

2K2.1(c)(1)(A), 2X1.1(a) (2018). We affirm.

       Terrell challenges the application of the cross-reference in USSG § 2K2.1(c)(1),

arguing that the facts underlying his conviction do not support the cross-reference to

attempted second-degree murder because he acted in the heat of passion. “We review the

factual findings underlying a district court’s application of a [Sentencing] Guidelines cross-

reference for clear error and the court’s legal conclusions de novo.” United States v. Lynn,

, 216 (4th Cir. 2019). “[T]he Government has the burden to prove a cross-

referenced offense by a preponderance of the evidence.” United States v. Slager, 

, 232 (4th Cir. 2019) (internal quotation marks omitted). “In the event of a conviction

for illegal possession of a firearm, USSG § 2K2.1(c) authorizes a district court to substitute

the offense level for any criminal offense that the defendant committed or attempted to

commit in connection with the possession of the firearm.” Lynn, 912 F.3d at 216 (internal

quotation marks omitted).

       Here, the district court found that Terrell committed attempted second-degree

murder in conjunction with his possession of ammunition. “Murder is the unlawful killing

of a human being with malice aforethought,” 18 U.S.C. § 1111(a), while “[voluntary]

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manslaughter is the unlawful killing of a human being without malice . . . . [u]pon a sudden

quarrel or heat of passion,” 18 U.S.C. § 1112(a). Malice aforethought is a necessary

component of second-degree murder and “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.” Lynn, 912 F.3d at 216 (internal quotation marks omitted).

Thus, to apply the cross-reference, the sentencing court must find by a preponderance of

the evidence that the defendant acted with malice and that the attempted killing was not

committed upon a sudden quarrel or heat of passion. In this case, after Terrell reached a

point of safety from an altercation initiated by the victim, he returned with a firearm and,

in a ski mask, approached the victim, and shot at the victim numerous times. We conclude

that a preponderance of the evidence supported the cross-reference to attempted second-

degree murder.

       Accordingly, we affirm the judgment of the district court. 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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