United States v. Wooten, 696 F. App'x 337

In 2016 Derrick Wooten was convicted by a federal jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).
In November 2015 Wooten drove to his mother’s house armed after a call that Demetrius Carey was threatening her; an exchange occurred, Carey reached toward his beltline, and Wooten fired multiple shots as Carey fled, striking him in the face.
At sentencing the district court applied the § 2K2.1(c) cross-reference to the attempted-murder guideline (§ 2A2.1), producing an offense level of 37 (guideline range 262–327 months), but statutory maximum for § 922(g) limited the sentence to 120 months, which the court imposed.
Wooten appealed, arguing (1) he acted in self-defense and therefore did not commit an attempted homicide; and (2) even if not self-defense, the proper cross-reference is to attempted manslaughter (§ 2A2.2) because he lacked malice aforethought and premeditation.
The Tenth Circuit reviewed factual findings for clear error, guideline interpretation de novo, and required the government to prove cross-reference facts by a preponderance of the evidence.
The panel affirmed, concluding the record supports rejection of self-defense and supports findings of malice aforethought and premeditation warranting the attempted-first-degree-murder guideline.

Issue	Wooten's Argument	Government's Position	Held
Whether Wooten acted in self-defense, negating an attempted-homicide cross-reference	Wooten: acted reasonably in self-defense after Carey threatened his mother and reached for his beltline	Government: Wooten traveled armed to the scene, fired first/continued firing as Carey fled, and Carey was unarmed	Court: Rejected self-defense; factual findings not clearly erroneous
Whether malice aforethought existed (heat-of-passion negates malice)	Wooten: provoked by mother’s call and heated dispute; acted in heat of passion	Government: conduct (shooting ~9 times at a fleeing, unarmed person) shows reckless, wanton disregard—supports malice	Court: Found malice aforethought; heat-of-passion not supported by record
Whether premeditation/specific intent to kill existed (affecting choice of attempted-murder vs manslaughter)	Wooten: lacked premeditation and specific intent; at most manslaughter	Government: pursuit and repeated shots demonstrate intent and possible on-scene deliberation	Court: Inferred premeditation from pursuit and repeated shooting; applied attempted-first-degree-murder guideline
Standard and burden for applying § 2K2.1(c) cross-reference	Wooten: factual findings insufficient to meet government’s burden	Government: met preponderance standard; witnesses credible; PSR adopted	Court: Government met its burden; district court’s findings upheld under clear-error review

United States v. Fortier, 180 F.3d 1217 (10th Cir. 1999) (standard for selecting most analogous guideline and when to apply murder guideline)
United States v. Maestas, 642 F.3d 1315 (10th Cir. 2011) (clear-error standard for sentencing fact findings)
United States v. Toledo, 739 F.3d 562 (10th Cir. 2014) (self-defense requires reasonable belief deadly force was necessary)
United States v. Wood, 207 F.3d 1222 (10th Cir. 2000) (malice aforethought may be established by reckless, wanton conduct)
United States v. Serawop, 410 F.3d 656 (10th Cir. 2005) (heat-of-passion requirement and provocation standard)
United States v. Cherry, 572 F.3d 829 (10th Cir. 2009) (discussion of heat-of-passion findings in sentencing context)
United States v. Treas-Wilson, 3 F.3d 1406 (10th Cir. 1993) (premeditation may form during the incident; no particular time period required)
United States v. Nichols, 169 F.3d 1255 (10th Cir. 1999) (use of murder guideline when record demonstrates malice and premeditation)