UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4135

JOHN JOHNSON DANIEL,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Charles H. Haden II, Chief District Judge.

(CR-00-175)

Submitted: July 31, 2001

Decided: August 27, 2001

Before MOTZ and TRAXLER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Mary Lou Newberger, Acting Federal Public Defender, Brian J.

Kornbrath, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, John

L. File, Assistant United States Attorney, Charleston, West Virginia,

for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

John Johnson Daniel pled guilty to possession of a firearm by a

convicted felon in violation of 18 U.S.C.A. § 922(g)(1) (West 2000).

He appeals the fifty-one month sentence he received, contending that

the district court erred in finding that he used the firearm in connection with another felony offense and enhancing his sentence accordingly. U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2000). We

affirm. 

Daniel fired four rifle shots from the back porch of his home after

he had an altercation with a neighbor, Hugh Gentry, who had told

Daniel’s companion that Daniel had spent the previous night with

another woman. Gentry was not present, having gone home a few

minutes earlier, after Daniel tried to hit him and threw a drink at him.

Two neighbors reported seeing Daniel fire the gun. One said he was

firing in the direction of Gentry’s house. The other said Daniel’s rifle

was "angled into the air." The police discovered only one bullet hole

in the awning over Daniel’s porch and four shell casings on the floor.

Daniel was charged in state court with wanton endangerment, but the

charges were later dismissed. 

The probation officer recommended a four-level enhancement

under USSG § 2K2.1(b)(5) for use of the firearm in connection with

another felony, that of wanton endangerment involving a firearm, in

violation of West Virginia Code Ann. § 61-7-12 (Michie 2000).*

Daniel objected that Gentry’s house was not visible and was impossible for him to hit from his back porch. He further argued that shooting

into the air from the porch did not rise to the level of wanton endan-

*The statute provides that, "[a]ny person who wantonly performs any

act with a firearm which creates a substantial risk of death or serious

bodily injury to another shall be guilty of a felony . . . ." 

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germent. However, the district court determined that the enhancment

was warranted. The court found that firing a rifle in a densely populated residential area at 2:00 o’clock in the afternoon created a substantial risk of death or serious bodily injury to people in the area,

whether or not Daniel was shooting at any particular person. Daniel

appeals, contending that the district court erred in failing to distinguish between a possibility of harm and a substantial risk of harm. 

The district court’s determination that Daniel’s conduct amounted

to wanton endangerment under W. Va. Code Ann. § 61-7-12 is a legal

one and is thus reviewed de novo. United States v. Daughtrey, 874

F.2d 213, 217 (4th Cir. 1989). Because there is no case law interpreting the West Virginia statute, he relies on cases interpreting similar

laws in other states for the principle that a "substantial" risk must be

an actual risk, not merely a possible risk. See, e.g., Elliot v. State, 560

N.E.2d 1266, 1267 (Ind. Ct. App. 1990) (reversing conviction for

criminal recklessness where defendant fired five pistol shots over

uninhabited fields and woodlands bordering his business when no one

was in his line of fire or in adjacent field, and no evidence was presented that anyone was in the woods); Boushehry v. State, 648 N.E.2d

1174, 1177 (Ind. Ct. App. 1995) (reversing conviction for criminal

recklessness where defendant induced another person to shoot at

geese across a vacant lot in the direction of a public road but there

was no evidence anyone was in or near the line of fire). 

Daniel maintains that his conduct did not create a "substantial" risk

of harm to others, although he may have created a possible risk,

because no one was in or near his line of fire. The government

responds that merely pointing or threatening the use of a firearm may

constitute wanton endangerment and thus warrants the enhancement.

This case presents a close question. Accepting Daniel’s contention

that he shot into the air, the court found that Daniel’s conduct was

inherently dangerous and carried a substantial risk of death or injury.

According to uncontested information in the presentence report, Daniel had stayed out drinking the night before and had continued drinking after he returned home. He was angry at Gentry, had just had an

altercation with Gentry, and was firing his rifle to vent his anger. The

fact that Daniel shot a hole in the awning over his own porch seems

to evidence his intoxication and lack of forethought, as well as a lack

UNITED STATES v. DANIEL 3
of concern over the consequences of his actions. We find that a gun

being fired by a person in this condition presents a substantial risk of

death or serious injury to his close neighbors. Therefore, we affirm

the sentence. See United States v. Swann, 149 F.3d 271, 277 (4th Cir.

1998) (appeals court may affirm for any reason appearing on the

record). 

We therefore affirm the sentence. 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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