United States v. Jordan Ballard

Case: 18-40451 Document: 00514882449 Page: 1 Date Filed: 03/21/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 18-40451 FILED March 21, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JORDAN BALLARD, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:15-CR-77-1

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM: * Jordan Ballard appeals his sentence for being a felon in possession of a firearm. Ballard contends that the district court erred in applying the first degree murder guideline, U.S.S.G. § 2A1.1, pursuant to U.S.S.G. § 2K2.1’s cross-reference provision, resulting in a guideline range that was restricted to the maximum statutory prison term of 120 months. He maintains that the evidence at the sentencing hearing, at most, supported a finding of voluntary Case: 18-40451 Document: 00514882449 Page: 2 Date Filed: 03/21/2019

No. 18-40451 manslaughter, which would have called for a guideline range of 78 to 97 months of imprisonment.

In light of the evidence introduced at the sentencing hearing and the fact that this court defers to a district court’s credibility determinations, the district court’s finding that Ballard was lying in wait and formed a conscious choice to shoot the victim is plausible in light of the record as a whole. See 18 U.S.C. § 1111(a); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764-65 (5th Cir. 2008); United States v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994).

Accordingly, the district court did not err in applying the homicide cross- reference of Section 2K2.1(c) and the first degree murder guideline of Section 2A1.1. The judgment of the district court is therefore AFFIRMED.