UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4240

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHARLES EDWARD HATTEN,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Huntington. Robert C. Chambers,

District Judge. (3:02-cr-00232-02)

Submitted: May 21, 2007 Decided: July 5, 2007

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER, Morgantown,

West Virginia, for Appellant. Charles T. Miller, United States

Attorney, Miller A. Bushong III, Assistant United States Attorney,

Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Charles Edward Hatten appeals the sentences imposed

following remand for resentencing. In our prior decision, we

affirmed Hatten’s convictions of conspiracy to manufacture and

distribute more than fifty grams of methamphetamine, in violation

of 21 U.S.C. § 846 (2000), and using, carrying, and discharging a

firearm in relation to a drug trafficking offence, thereby causing

death, in violation of 18 U.S.C.A. § 924(c)(1)(A)(iiii), (j)(1)

(West 2000 & Supp. 2007). We also vacated Hatten’s sentence and

remanded for resentencing in light of United States v. Hughes, 401

F.3d 540 (4th Cir. 2005).

On remand, treating the sentencing guidelines as advisory

only and considering the factors in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2007), the district court applied the same guideline

calculations used in the first sentencing. Utilizing the first

degree murder cross-reference provision, Hatten’s base offense

level for the conspiracy offense was 43 because he shot and killed

a man during the course of the conspiracy. See U.S. Sentencing

Guidelines Manual §§ 2D1.1(d)(1), 2A1.1 (2002). The court applied

a two-level increase under USSG § 3B1.1(c) for Hatten’s role as a

leader and organizer, and a three-level reduction for acceptance of

responsibility under USSG § 3E1.1 for acceptance of responsibility,

resulting in a total offense level of 42. With criminal history

category II, Hatten’s guideline range for the § 846 conviction was

360 months to life imprisonment. Turning to the § 924(c), (j)

firearm conviction, the district court found that the murder cross-
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reference from USSG § 2K2.1(c)(1)(B) to USSG § 2A1.2, the second

degree murder provision, applied, establishing a base offense level

of 33. The court applied the three-level reduction for acceptance

of responsibility, and Hatten’s total offense level became 30.

With criminal history category II, Hatten’s guideline range for the

§ 924(c), (j) offense was 108 to 135 months in prison, with a

statutory mandatory minimum 120-month sentence to be served

consecutively to the conspiracy sentence. The district court

sentenced Hatten to a total of 520 months in prison: 400 months on

the conspiracy conviction and a consecutive 120 months on the

firearm conviction. Hatten timely appealed.

As he claimed in the district court, Hatten argues that

the cross-reference to the first degree murder guideline for his

conspiracy conviction was improper because the conduct to which he

pled guilty amounted to second degree murder, which he argued

called for a lower offense level. Under USSG § 2D1.1(d)(1), “[i]f

a victim was killed under circumstances that would constitute

murder under 18 U.S.C. § 1111 [2000] had such killing taken place

within the territorial or maritime jurisdiction of the United

States, apply § 2A1.1 (First Degree Murder).” Section 1111 defines

murder to include murder in both the first and second degree. The

commentary to § 2A1.1 also provides that this guideline section is

not limited to premeditated murder. USSG § 2A1.1, cmt. n.1.

Courts analyze the federal sentencing guidelines under

the rules that apply to statutory construction. United States v.

Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003). “The language of
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the Sentencing Guidelines is to be given its plain and ordinary

meaning, unless to do so would produce an absurd result contrary to

the drafter’s manifest intent.” United States v. Zapata, 139 F.3d

1355, 1359 (11th Cir. 1998) (citation and internal quotation marks

omitted). Thus, courts begin with the plain meaning of the

guidelines. United States v. Hargrove, 478 F.3d 195, 206 (4th Cir.

2007) (applying plain meaning analysis to guideline

interpretation); United States v. Ivory, 475 F.3d 1232, 1234-35

(11th Cir. 2007) (same).

Here, § 2D1.1 expressly directs the application of the

§ 2A1.1 first degree murder provision if the killing “constitute[s]

murder,” without distinguishing between murder in the first and

second degree. We conclude that the plain meaning of § 2D1.1(d)(1)

indicates that the murder cross reference to § 2A1.1 applies if

there is any murder as defined by § 1111—not just murder in the

first degree. Accordingly, we find that the district court

properly applied the § 2D1.1(d)(1) cross-reference to § 2A1.1 in

Hatten’s case.

Hatten also challenges the district court’s finding that

he was subject to a two-level enhancement under USSG § 3B1.1(c) for

his role as a leader or organizer. A defendant qualifies for a

two-level role adjustment if he was a leader, organizer, manager,

or supervisor in any criminal activity that did not involve five or

more participants and was not otherwise extensive. United

States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). For a role

adjustment to be given because a defendant was a leader, the
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defendant must have controlled others. United States v. Carter,

300 F.3d 415, 426 (4th Cir. 2002). A defendant is an organizer if

he coordinates others to promote the criminal activity. United

States v. Picanso, 333 F.3d 21, 23-24 (1st Cir. 2003). A defendant

who is deemed a manager or supervisor must have directed the

activities of others. United States v. Turner, 319 F.3d 716, 725

(5th Cir. 2003).

According to the testimony of three of Hatten’s coconspirators, they viewed Hatten as the leader of the conspiracy

and stated that he initiated it. Hatten developed the plan for

stealing the anhydrous ammonia used in cooking the methamphetamine

and directed others in gathering the basic ingredients. The coconspirators also testified that Hatten was the main cook of

methamphetamine. We find that under the facts of this case, the

district court did not clearly err in enhancing Hatten’s base

offense level by two levels under § 3B1.1(c).

Finally, Hatten challenges the district court’s decision

to impose consecutive rather than concurrent sentences for his

conspiracy and firearm convictions. Section 924(c) requires that

any sentence imposed for using, carrying, or possessing a firearm

during and in relation to a crime of violence or drug trafficking

offense must be “in addition to the punishment provided for such

crime.” 18 U.S.C.A. § 924(c)(1). Section 924(j) is the penalty

provision for individuals who aggravate their § 924(c) offense by

killing someone with a firearm in the course of committing a

§ 924(c) offense. Hatten contends that because § 924(j) is silent
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as to whether a sentence imposed under that provision should run

concurrently or consecutively the crime of violence or drug

trafficking offense, the district court should have directed the

sentences to run concurrently.

Viewed in the context of § 924(c), “[t]he plain meaning

of the words used in § 924(j) unequivocally provide that if the

evidence shows a violation of § 924(c) . . . , a district court

must impose a consecutive sentence over and above the punishment

prescribed for the violent crime.” United States v. Battle, 289

F.3d 661, 666 (10th Cir. 2002). Moreover, to adopt Hatten’s

argument would create the absurd result that a defendant who merely

violated § 924(c) by using or carrying a firearm during a crime of

violence or drug trafficking offense could face a longer punishment

by virtue of having his sentences run consecutively as directed by

§ 924(c), than a defendant who commits murder in the course of a

§ 924(c) offense because, under Hatten’s interpretation of

§ 924(j), that individual’s sentences could run concurrently.

United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2001), vacated

on other grounds, 536 U.S. 953 (2002).

Accordingly, we affirm Hatten’s sentences. 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