UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4034

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALFRED WAYNE CASH, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Bruce H. Hendricks, District Judge. (6:17-cr-00333-BHH-1)

Submitted: December 20, 2021 Decided: January 6, 2022

Before NIEMEYER and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South Carolina, for Appellant. Maxwell B. Cauthen, III, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Alfred Wayne Cash, Jr., pled guilty to being a felon in possession of firearms and

ammunition, in violation of

(g)(1), 924(a)(2), (e). On appeal, counsel has

filed a brief pursuant to Anders v. California,

(1967), stating that there are no

meritorious grounds for appeal but questioning whether the district court erred in using the

cross-reference in U.S. Sentencing Guidelines Manual §§ 2K2.1(c)(1)(A), 2X1.1 (2016),

to apply the offense level for attempted murder under USSG § 2A2.1(a)(2). Cash filed a

pro se supplemental brief, arguing that his indictment was facially defective. The

Government has declined to file a response brief. We affirm.

We review the factual findings underlying a district court’s application of a

Guidelines cross-reference for clear error and its legal conclusions de novo. United States

v. Ashford,

(4th Cir. 2013). A conviction under § 922(g)(1) corresponds

to a base offense level of 14. See USSG § 2K2.1(a)(6)(A). However, if the defendant

“used or possessed any firearm or ammunition cited in the offense of conviction in

connection with the commission or attempted commission of another offense,” the cross-

reference in USSG § 2K2.1(c)(1)(A) directs the application of the base offense level for

the underlying offense, see USSG § 2X1.1. Section 2A2.1(a)(2) provides a base offense

level of 27 for attempted murder where “the object of the offense would [not] have

constituted first degree murder.” After reviewing the record, we discern no error in the

district court’s decision to apply the cross-reference to attempted murder. See United

States v. Davis,

(4th Cir. 2012) (“[T]he Government has the burden to

prove a cross-referenced offense by a preponderance of the evidence.”).

2 In accordance with Anders, we have reviewed the record in this case and have found

no meritorious issues for appeal. We reviewed Cash’s pro se supplemental brief and we

conclude that there was no reversible error related to his arguments. We therefore affirm

the district court’s judgment. This court requires that counsel inform Cash, in writing, of

the right to petition the Supreme Court of the United States for further review. If Cash

requests that a petition be filed, but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Cash.

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

3