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Richmond, VA - Criminal defense lawyer represented defendant with argueing that the district court reversibly erred in setting his sentence by: (1) using second-degree murder as the sentencing cross-reference for his offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for obstruction of justice.

Defendant Michael Slager (“Defendant”), a former officer with the North
Charleston Police Department, admitted that he “willfully” shot and killed Walter Scott
(“Scott”), when Scott was unarmed and fleeing arrest. Defendant further admitted that his
decision to shoot Scott was “objectively unreasonable.” Based on those admissions,
Defendant pleaded guilty to depriving Scott of his civil rights under color of law.
The district court sentenced Defendant to a 240-month term of imprisonment.
Before this Court, Defendant argues that the district court reversibly erred in setting his
sentence by: (1) using second-degree murder as the sentencing cross-reference for his
offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for
obstruction of justice. Finding no reversible error, we affirm Defendant’s sentence.
I.
A.
In May 2016, a federal grand jury in the District of South Carolina returned an
indictment alleging, among other things, that Defendant, “while acting under color of law
as an officer with the North Charleston Police Department, shot [and killed] Walter Scott
without legal justification, willfully depriving him of the right . . . to be free from the use
of unreasonable force by a law enforcement officer.” J.A. 13. In the meantime, Defendant
was tried in state court on one count of murder. That trial resulted in a hung jury and
mistrial.
Thereafter, Defendant entered into a global plea agreement with the United States
and the State of South Carolina. Under that agreement, in exchange for Defendant’s guilty
3
plea in federal court to one count of depriving Scott of his civil rights under color of law,
the United States agreed to drop the remaining counts of the indictment1 and agreed to
recommend a three-level reduction in the applicable sentencing level for acceptance of
responsibility. Additionally, South Carolina agreed not to retry Defendant and dismissed
the murder charge against him.
Some of the undisputed facts that formed the basis for Defendant’s plea includes
evidence showing that on the morning of April 4, 2015, while on duty, Defendant stopped
Scott’s vehicle after observing that his center brake light was not working. After the stop,
Scott fled on foot and Defendant chased him. During the chase, Defendant shot his taser
probes twice, hitting and bringing Scott down with the second shot. See United States v.
Slager, No. 2:16-CR-00378-DCN, 2018 WL 445497, at *2 (D.S.C. Jan. 16, 2018).
At some point thereafter, Scott got up and fled. While Scott was unarmed and
running away, Defendant drew his department-issued firearm and fired eight shots at Scott,
five of which struck Scott in the back. Scott died on the scene from these wounds. Id.
A bystander witnessed and testified about the incident. The bystander also filmed
parts of the incident. The bystander’s testimony and video of the incident directly
contradicted Defendant’s initial account of the incident. In conformance with the global
guilty plea agreement, Defendant admitted that he “used deadly force even though it was
objectively unreasonable under the circumstances.” Id. And, Defendant acknowledged

1 The federal indictment charged Defendant with: depriving Scott of his civil rights
under color of law, in violation of 18 U.S.C. § 242; using a weapon during the commission
of a crime of violence, in violation of 18 U.S.C. § 924(c); and obstruction of justice, in
violation of 18 U.S.C. § 1512(b)(3).
4
that “his actions were done willfully, that is he acted voluntarily and intentionally and with
specific intent to do something that the law forbids.” Id.
B.
Defendant’s sentencing hearing began on December 4, 2017, and lasted four days.
Because Defendant pleaded guilty to depriving Scott of his civil rights under color of law,
the district court was required during sentencing to cross-reference the offense underlying
the deprivation. See U.S.S.G. § 2H1.1(a)(1). The government contended that the proper
cross-reference was second-degree murder because Defendant was acting with malice
aforethought when he shot Scott. In contrast, Defendant argued that the proper crossreference was voluntary manslaughter because he was provoked by Scott and was thus not
acting with malice.
Although most of the facts were undisputed at Defendant’s sentencing hearing, the
government and Defendant disagreed as to what occurred after Scott fell to the ground, but
before Scott got up and ran away from Defendant.
i.
The government’s version of events is based primarily on the only third-party
eyewitness to the shooting, Feidin Santana. Santana recounted the shooting during a South
Carolina Law Enforcement Division (“SLED”) interview, and during Defendant’s state
and federal proceedings. Each time, Santana provided a consistent account of the shooting.
While traveling to work on the morning of the shooting, Santana saw Scott running
from Defendant. Santana followed, but briefly lost sight of Scott and Defendant. When
Santana next saw them, Scott was facing down, and Defendant was on top of Scott and
5
“trying to control” him. J.A. 971. Santana testified that it sounded like Scott was “being
hurt” and he heard something “electric.” J.A. 972. According to Santana, Defendant
punched Scott in the back, but Scott never flipped over. Santana did not see Scott punch
back. Nor did Santana see Scott grab the taser and charge toward Defendant. Indeed,
Santana never saw Scott holding the taser. Rather, according to Santana, Scott did not
seem to want to “hurt” Defendant but was “just trying to leave.” J.A. 974. At some point,
Scott shot up “aggressively,” Santana testified. J.A. 975. By this, Santana meant that Scott
was “determined to . . . just leave.” Id. When Scott broke free and began to run, Defendant
shot him. Defendant then handcuffed Scott and checked his pulse but did not treat him.
Santana also recorded a portion of the encounter with his cell phone. Santana’s
video does not clearly show the period during which Scott and Defendant were allegedly
on the ground. But the video does show that Scott stood up and was running away—not
pointing a taser at Defendant or advancing toward Defendant—when Defendant fired at
him. Additionally, the video shows Defendant picked up the taser approximately ten feet
behind the point where Defendant was standing when he shot Scott—not between Scott
and Defendant.
ii.
In contrast to Santana’s consistent recollection of the encounter, Defendant provided
four different accounts as to what happened on the morning of April 4, 2015.
First, Defendant made an on-scene statement to his superior officer, Lieutenant
Daniel Bowman, who arrived shortly after the shooting occurred. Defendant told Lt.
Bowman that Scott continued to resist arrest after being tasered and falling to the ground.
6
Defendant tased Scott twice more while he laid on the ground, but Scott resisted and “was
able to roll over onto his back.” Supp. J.A. 75. Scott then “use[d] both hands to grab the
taser” and after “a short struggle,” Scott “was able to wrestle it away.” Id. Scott then
“stood up and pointed the taser at” Defendant. Id. Defendant told Lt. Bowman that, when
faced with this alleged threat, he “drew his weapon as he was returning to the standing
position and fired multiple times.” Id. Several of Defendant’s shots struck Scott, who then
fell to the ground. According to this account, Defendant then “rendered emergency aid
until other officers arrived seconds later.” Id.
Three days after the shooting, on April 7, 2015, Defendant gave a second account
of the encounter in an unsworn interview with SLED investigators. Before giving this
statement, Defendant asked his attorney to verify with the SLED investigators whether
there was “[a]ny video, surveillance video of businesses, security cameras, [or] anything”
else documenting the shooting. J.A. 702. Defendant also asked whether there were any
witnesses who viewed the shooting. The SLED investigators did not apprise Defendant of
Santana or his recorded video.
At the start of the interview, the SLED investigators informed Defendant that the
interview was part of a criminal investigation and that Defendant could decline to
participate. Still, Defendant agreed to make a statement. Over the course of the interview,
Defendant added new details not mentioned in his prior statement to Lt. Bowman and
physically reenacted key aspects of the encounter. For example, Defendant claimed that
Scott was “coming straight at him” holding the taser, with his “arm extending straight out.”
J.A. 1640. Defendant told the SLED investigators that he was “shuffle-stepping” to avoid
7
the taser as he “pulled his gun.” Id. According to this account, Scott was “turning to his
left” when Defendant fired. Id. Then, “Scott ran off, stumbled into the grass, [and] fell to
the ground.” Id. Defendant further told the investigators that “Scott must have dropped”
the taser during this altercation, because he retrieved it “between the place where he had
been shooting and where Scott landed.” J.A. 1641.
During his state trial, Defendant provided a third description of his encounter with
Scott. In this retelling, Defendant claimed that, during the alleged ground struggle, he had
attempted to put Scott’s left hand “behind his back to handcuff him.” J.A. 282. However,
Scott was in a “pushup position” and was “trying to get up” at the same time. Id. Defendant
testified that while this was occurring, he and Scott were “fighting” and “rolling around on
the ground.” J.A. 285. According to this account, Scott eventually “overpowered”
Defendant and took his taser. J.A. 286. Defendant testified that at that point, he “instructed
Mr. Scott to turn right away and go, but he didn’t.” J.A. 288. Instead, Scott continued to
approach Defendant, so Defendant “pulled [his] firearm” and “fired until the threat was
stopped.” J.A. 289. Defendant’s testimony made clear that he was neither “provoked” nor
“angry” during the shooting. J.A. 346–47. Instead, Defendant testified that he was simply
“doing [his] job” and acting in “self-defense.” Id. at 347.
Defendant provided his fourth description of the shooting over two days of
testimony at his federal pre-trial hearings. Again, Defendant added new details. For the
first time, Defendant testified that Scott “punched [him] in the chest” during the ground
altercation. J.A. 732. And for the first time, Defendant testified that Scott was “on top of
[him] at some point.” J.A. 727. Defendant also testified—again, for the first time—that
8
Scott “drive stunned”2 him during the altercation. J.A. 728. When asked why he had not
previously provided these details, Defendant testified that the surrounding events were
“fuzzy” and there were still “some things [he did not] recall.” J.A. 727. But “some of [his]
memory [had] come back since” the shooting, he testified. Id. Still, Defendant testified
that he could not “recall anything [that he had] told SLED Agents” during his prior
interview. J.A. 860 (emphasis added).
Defendant did not testify during his sentencing hearing, but he did attempt to
buttress aspects of his final account of the encounter through three expert witnesses. First,
Defendant offered Eugene Liscio, an expert forensic analyst who reconstructs crime
scenes. Using Santana’s video, Liscio created a 3D model of the scene of the encounter in
an effort to determine whether Defendant or Scott was holding the taser prior to the
shooting. Based upon the final position of the taser, Liscio opined that the video was
“inconsistent” with Defendant throwing the taser with his right arm. J.A. 1257–58.
However, Liscio equivocated as to this opinion, acknowledging that there was “no part in
[the Santana video] where you can actually see the taser being held.” J.A. 1275. Liscio
also testified that, due to this limitation, the court would have to “make [its] own judgment
call” as to what in fact occurred. J.A. 1279–80.
2 “Tasers generally have two modes. In dart mode, a taser shoots probes into a
subject and overrides the central nervous system. Drive stun mode, on the other hand, does
not cause an override of the victim’s central nervous system; that mode is used as a pain
compliance tool with limited threat reduction.” Estate of Armstrong ex rel. Armstrong v.
Vill. of Pinehurst, 810 F.3d 892, 897 n.3 (4th Cir.), cert. denied sub nom. Vill. of Pinehurst,
N.C. v. Estate of Armstrong, 137 S. Ct. 61, 196 L. Ed. 2d 32 (2016) (internal quotations
marks and citations omitted).
9
Second, Defendant offered David Hallimore, a forensic audio analyst, who applied
“filtration[s] to [the Santana Video] to allow the speech to become more clear.” J.A. 1192,
1216. Through these filtrations and “critical listening”—a skill Hallimore purportedly
learned by “train[ing his] brain effectively to better understand certain tones”—Hallimore
testified that he heard “fuck police” and “Let go of the taser or I’ll shoot” on the Santana
video. J.A. 1204, 1216, 1218. But Hallimore also recognized this was his “interpretation”
of the enhanced audio. J.A. 1220.
Finally, Defendant introduced opinions and analyses rendered by Megan Fletcher,
an agent with the SLED’s Trace Evidence Unit. Fletcher did not testify at the federal
sentencing, but Defendant did reference her state trial testimony and report. Fletcher
identified polyester fibers in Defendant’s shirt that had been melted. Fletcher analyzed
these fibers and opined that a “taser drive-stun cannot be excluded as a possible heat source
which has the potential to melt polyester fibers.” Supp. J.A. 89–90. But Fletcher averred
that she was “unable to definitively conclude whether a Taser did or did not cause the marks
on the uniform.” Supp. J.A. 89. Fletcher also acknowledged that she never determined—
and therefore did not know—the melting point of the fibers in Defendant’s shirt.
C.
On January 16, 2018, the district court sentenced Defendant to a 240-month term of
imprisonment. In an accompanying order explaining its sentencing decision, the court first
determined that second-degree murder was the appropriate sentencing cross-reference for
Defendant’s offense because “malice aforethought is proven by a gross deviation from the
standard of reasonable care, and [because] there is insufficient evidence that the defendant
10
acted in heat of passion.” Slager, 2018 WL 445497, at *2. To support that judgment, the
district court made extensive credibility determinations and factual findings.
To begin, the court assessed the credibility of the only two testifying eyewitnesses
to Scott’s shooting: Santana and Defendant. Recounting at length Defendant’s various
accounts of the encounter, the district court discredited Defendant’s testimony,
characterizing it as “contradictory,” “self-serving, evolving, and internally inconsistent.”
Id. at *4–6. Furthermore, the court found that Defendant’s experts did not bolster the
credibility of his account because each expert admitted that his or her respective technique
provided no definitive answer as to the key aspects of Defendant’s final version of the
encounter. In contrast, Santana presented a “consistent story,” which the court found
credible. Id. at *4 (“[A] review of the statement Santana gave to SLED, Santana’s state
court testimony, and his federal court testimony reveals a consistent story that is at odds
with [Defendant’s] presentation of the sequence of events . . . making Santana a more
credible witness.”).
Based upon these credibility determinations, the district court made the following
findings of fact. First, the court found that the Santana video did not provide any grounds
to support a finding of provocation. Second, the court found that the portion of the
encounter not covered by the video—when Defendant and Scott were on the ground—also
did not support a finding of provocation. In particular, the court found that Scott “yelled
‘Fuck the police,’ [and] that Scott ran away from [Defendant] during the initial traffic stop
and disobeyed commands to stop.” Id. at *8. But the court further found that—contrary
to Defendant’s statements—Scott was “never on top of [Defendant].” Id. The court found
11
that Scott did not wrestle the taser away and attempt to drive-stun Defendant because Scott
“never had the taser in his hands.” Id. Rather than coming straight at Defendant with a
taser, Scott got “up from the ground [and] ran away from [Defendant],” the court found.
Id. Instead “of giving chase once again, [Defendant] shot at Scott eight times” and “five
of those shots hit Scott in the back.” Id. Moreover, at “no point after [Defendant] fired the
first shot—when Scott was nearly fifteen feet away—to when [Defendant] fired the eighth
shot—when Scott was nearly forty feet away—did Scott turn around.” Id. Emphasizing
that “[w]ords alone will not suffice for a ‘heat of passion’ finding,” the court concluded
that these facts, “taken together,” “did not constitute adequate provocation to apply the
‘heat of passion’ mitigation.” Id.
In determining Defendant’s sentence, the district court also applied a two-level
sentencing enhancement for obstruction of justice based upon Defendant’s false statements
to the SLED investigators during his unsworn interview. U.S.S.G. § 3C1.1. In so doing,
the court recognized that Defendant was “represented by an attorney” and “was aware that
there was an investigation . . . underway for the shooting.” Id. at *14. The court also
emphasized that, before making the statement, Defendant specifically inquired “about the
presence of a video that captured the shooting.” Id. at *17. Believing that no video existed,
Defendant “used the SLED interview to advance his false narrative of being forced to fire
when Scott was coming toward him with a taser,” the court explained. Id.
In deciding to apply the obstruction enhancement, the district court acknowledged
that SLED had already obtained Santana’s video when they interviewed Defendant. Still,
without the video, some of Defendant’s false statements would have significantly
12
obstructed the investigation, the court determined. Specifically, if it were “not for the
Santana’s video,” Defendant’s statement that “Scott was coming toward him with a taser
at the time he fired his first shot” “would certainly have hindered the investigation.” Id.
This was especially true because Defendant’s “status as a [law enforcement] officer would
likely have meant that his rendition of the events would not have been immediately
questioned.” Id.
Defendant timely appealed his sentence.
II.
A.
When, as here, a defendant is sentenced for deprivation of civil rights under color
of law, the Sentencing Guidelines require the court to cross-reference the “offense
guideline applicable to any underlying offense.” U.S.S.G. § 2H1.1(a)(1).
Defendant first argues that the district court erred by determining that second-degree
murder was the proper cross-reference under Section 2H1.1. Specifically, Defendant
claims that when he shot Scott, he was provoked and thus acting without malice.
Consequently, Defendant argues that the proper cross-reference was voluntary
manslaughter, not second-degree murder.
At sentencing, the government “has the burden to prove a cross-referenced offense
by a preponderance of the evidence[.]” United States v. Davis, 679 F.3d 177, 182 (4th Cir.
2012). In reviewing “whether a district court properly applied . . . its application of a
cross-reference, we review the district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Ashford, 718 F.3d 377, 380 (4th Cir. 2013)
13
(quoting United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009)) (internal quotation
marks omitted). For the reasons that follow, we hold that the district court did not clearly
err in making its factual findings. We further conclude that the court correctly determined,
based on those findings, that second-degree murder was the proper cross-reference.
i.
“When sentencing courts engage in fact finding, preponderance of the evidence is
the appropriate standard of proof.” United States v. Span, 789 F.3d 320, 334 (4th Cir.
2015) (citations and alterations omitted). We “will not reverse a lower court’s findings of
fact simply because we would have decided the case differently.” Id. (quoting Easley v.
Cromartie, 532 U.S. 234, 242 (2001)). Instead, clear error exists only when “the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” Id. (quoting Easley, 532 U.S. at 242).
When a district court renders factual findings “based on determinations regarding
the credibility of witnesses, we give even greater deference to the trial court’s findings.”
United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985)) (internal quotation marks omitted); see also Teleguz v.
Zook, 806 F.3d 803, 812 (4th Cir. 2015) (“[C]redibility determinations are deserving of the
highest degree of appellate deference.”), cert. denied, 137 S. Ct. 95 (2016). Indeed, if a
district court’s finding “is based on his decision to credit the testimony of one of two or
more witnesses, each of whom has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually
never be clear error.” Anderson, 470 U.S. at 575 (1985).
14
Because Santana’s video does not capture the entirety of the disputed period, the
court based many of its factual findings on its assessment of the credibility of the two
testifying eyewitnesses to the encounter: Defendant and Santana. Examining at length each
of Defendant’s four accounts of the encounter, the court discredited Defendant’s testimony
as “contradictory,” “self-serving, evolving, and internally inconsistent.” Slager, 2018 WL
445497, at *4–6. The record amply supports that credibility determination.
Each time Defendant provided a new statement about the shooting, he put forward
new details materially bearing on his application of force. For example, in contrast to his
testimony in these proceedings, Defendant never told Lt. Bowman or the SLED
investigators that Scott was “on top of [him] at some point” during the disputed period.
J.A. 727–28. Also, in contrast to his testimony in these proceedings, Defendant did not tell
Lt. Bowman or the SLED investigators that he was “drive stunned” by Scott. Id. And in
contrast to his testimony in these proceedings, Defendant did not tell either Lt. Bowman or
the SLED investigators that Scott “punched [him] in the chest.” J.A. 732. When Defendant
was asked why he previously failed to provide these details, he testified that his memory
was “fuzzy” and he still didn’t “recall” “some things.” Id. Defendant’s “evolving” account
of the encounter provided the district court with ample factual basis to discredit
Defendant’s testimony. See Munyakazi v. Lynch, 829 F.3d 291, 298 (4th Cir. 2016)
(“Omissions, inconsistent statements, contradictory evidence, and inherently improbable
testimony are appropriate bases for making an adverse credibility determination.” (internal
quotation marks and alterations omitted)).
15
That some of Defendant’s assertions are flatly contradicted by Santana’s video and
by Defendant’s own plea agreement further supports the district court’s finding that
Defendant’s account was not credible. Id. Santana’s video, for example, shows that when
Defendant fired eight shots from his firearm, Scott was “running away, not pointing a Taser
at [Defendant] or advancing toward him,” contrary to Defendant’s statement to Lt.
Bowman and the SLED investigators. Slager, 2018 WL 445497, at *6. And the video
reveals that Defendant picked up his taser approximately ten feet behind where Defendant
stood when he shot Scott—not between Scott and Defendant, as Defendant initially
asserted. These contradictions further demonstrate that the district court did not clearly err
in discerning Defendant’s testimony. See United States v. Savage, 885 F.3d 212, 220 (4th
Cir. 2018) (holding that it is for the factfinder to hear a witness’s “testimony, along with
any alleged inconsistencies, and decide[] [whether] testimony [is] credible”).
Santana, on the other hand, provided a consistent story, including as to the facts the
district court found significant in its sentencing opinion. Each time he was questioned,
Santana testified that Scott never was on top of Defendant, always was facing down, never
gained control of Defendant’s taser, and never charged at or tried to fight with Defendant.
And each time he was questioned, Santana testified that once Scott was able to stand up,
he began to flee—that Scott never tried to stay and fight Defendant, much less charge at
him, as Defendant claimed.
Additionally, unlike several of Defendant’s retellings of the encounter, Santana’s
version of events is—and always has been—consistent with the recorded video. On these
facts, the district court did not clearly err in crediting Santana’s consistent testimony. See
16
United States v. Stark, 8 F.3d 822 (4th Cir. 1993) (unpublished opinion) (District court did
not clearly err in finding one witness’s “consistent testimony, substantiated in part by
[documentary evidence], was more credible than [another witness’s] testimony, which the
court found inconsistent and incredible in many respects.”).
3
Defendant nevertheless claims that the district court reversibly erred in declining to
find that the testimony of Defendant’s expert witnesses rendered Defendant’s account of
the encounter credible. “As with lay witnesses, evaluating the credibility of experts and
the value of their opinions is also a function best committed to the district courts, and one
to which appellate courts should defer[.]” Hall, 664 F.3d at 462 (citations and alterations
omitted).
Here, the court did not reversibly err by declining to give weight to the testimony
and evidence presented by Defendant’s experts. The district court emphasized—as the
record demonstrates—that each expert admitted their respective techniques could not
provide the court with definitive conclusions as to what happened during the disputed
period. Instead, the experts couched their opinions with statements of equivocation and
invited the court to make its own judgment as to what, in fact, occurred during the disputed
period. See, e.g., Supp. J.A. 89–90 (Fletcher opining that a taser “drive-stun cannot be
excluded as a possible heat source which has the potential to melt polyester fibers”); J.A.
3 Defendant complains that the district court failed to point out in its sentencing
order that Santana viewed the shooting “from a distance of 136–180 feet.” Appellant’s Br.
at 16. Although we “do not dispute that there must be sufficient explanation for a sentence
to be procedurally reasonable,” the court’s “thorough explanation” here was more than
sufficient to meet this burden. United States v. Helton, 782 F.3d 148, 154 (4th Cir. 2015).
17
1279–80 (Liscio testifying that the district court could not rely on his recreation of the
scene, but instead “ha[d] to make your own judgment call,” to determine whether Scott
ever held the taser); J.A. 1220 (Hallimore offering the court an “interpretation” of the
enhanced audio). The district court thus did not reversibly err in choosing not to give
weight to these equivocal opinions.
4
In sum, the district court did not clearly err by crediting Santana’s version of the
encounter—including that Scott was “never on top of [Defendant],” that Scott never had
the taser in his hands, that Scott immediately began to run away when he stood up, and that
he was running away when Defendant shot him, Slager, 2018 WL 445497, at *8—as
opposed to Defendant’s (most recent) account. Notably, several of these key factual
determinations are consistent with the facts Defendant admitted to in his plea agreement.
See, e.g., id. at *2 (Defendant “fired multiple shots at Scott while Scott was running away
from him.”); id. (“[D]efendant’s Taser dropped to the ground behind [D]efendant.”).
4 Defendant also relies upon the Federal Rules of Evidence and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to argue that the court erred by failing to
give weight to Fletcher’s opinions. But the Rules of Evidence do not apply to sentencing.
Fed. R. Evid. 1101(d)(3). And this Court has not applied Daubert to sentencing hearings.
United States v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000); see also United States v.
Fields, 483 F.3d 313, 342 (5th Cir. 2007) (“No Circuit that we are aware of has applied
Daubert to sentencing. . . . Since Daubert’s holding was based on the Federal Rules of
Evidence, it is not directly applicable.”). Applying Daubert would run contrary to the
sentencing court’s “wide discretion” to determine the “sources and types of evidence,”
which are relevant for defendants’ individualized sentencing. Pepper v. United States, 562
U.S. 476, 488 (2011). We thus reject Defendant’s Daubert argument.
18
ii.
Defendant next contends that the district court’s factual findings do not support a
finding of malice aforethought. Consequently, Defendant maintains that the court erred by
determining the proper cross-reference was voluntary manslaughter, not second-degree
murder. Again, we disagree.
Murder is “the unlawful killing of a human being with malice aforethought,” 18
U.S.C. § 1111, whereas voluntary “manslaughter is the unlawful killing of a human being
without malice . . . [u]pon a sudden quarrel or heat of passion,” 18 U.S.C. § 1112(a). In
other words, malice aforethought “is the distinguishing characteristic which, when present,
makes a homicide murder rather than manslaughter.” United States v. Fleming, 739 F.2d
945, 947 (4th Cir. 1984).
“Malice aforethought may be established by evidence of conduct which is reckless
and wanton and a gross deviation from a reasonable standard of care, of such a nature that
a [factfinder] is warranted in inferring that [the] defendant was aware of a serious risk of
death or serious bodily harm.” Ashford, 718 F.3d at 384 (citations and alterations omitted).
Malice does not “require proof of an intent to kill or injure.” Fleming, 739 F.2d at 947
(citations omitted). Malice exists when the evidence demonstrates that the defendant acted
“with a heart that was without regard for the life and safety of others.” Id. at 948 (citations
omitted). A district court may infer malice when a defendant uses a weapon “in such a
manner as may be expected naturally and probably to cause death.” United States v.
Celestine, 510 F.2d 457, 459 (9th Cir. 1975); accord United States v. Wright, 594 F.3d 259,
268 (4th Cir. 2010) (finding malice when Defendant “engaged in a ‘reckless firing of the
19
firearm, a random firing with the intent to hurt someone’” (emphasis in original)); Ashford,
718 F.3d at 384 (finding malice when Defendant “drew his firearm and pursued the fleeing”
victim).
As Defendant sought to do here, a defendant may negate a finding of malice by
demonstrating that an intentional killing occurred “upon a sudden quarrel or heat of
passion.” 18 U.S.C. § 1112(a); United States v. Velazquez, 246 F.3d 204, 212 (2d Cir.
2001); United States v. Browner, 889 F.2d 549, 552 (5th Cir. 1989); United States v.
Roston, 986 F.2d 1287, 1291 (9th Cir. 1993); United States v. Scafe, 822 F.2d 928, 932
(10th Cir. 1987). Federal courts apply the common-law meaning of “sudden quarrel or
heat of passion.” See, e.g., United States v. Martinez, 988 F.2d 685, 694 (7th Cir. 1993).
Under the common law, a defendant’s “heat of passion” must arise from “adequate
provocation.” See id.; Roston, 986 F.2d at 1291; United States v. Collins, 690 F.2d 431,
437 (5th Cir. 1982); United States v. Medina, 755 F.2d 1269, 1272 (7th Cir. 1985); United
States v. Paul, 37 F.3d 496, 498 (9th Cir. 1994). Provocation is adequate when it “would
arouse a reasonable and ordinary person to kill someone.” United States v. Wagner, 834
F.2d 1474, 1487 (9th Cir. 1987); see Velazquez, 246 F.3d at 213. When a law enforcement
officer, like Defendant, seeks to rely on a sudden quarrel or heat of passion defense, a court
must assess the adequacy of the provocation “by the standards of a reasonable officer.”
See Velazquez, 246 F.3d at 213 (citing United States v. Cobb, 905 F.2d 784, 789 (4th Cir.
1999)).
“[M]ere words” generally provide inadequate provocation to negate a finding of
malice. See Allen v. United States, 164 U.S. 492, 497 (1896); Velazquez, 246 F.3d at 213;
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United States v. McRae, 593 F.2d 700, 705 (5th Cir. 1979); see also 3 Wayne R. LaFave
& Austin W. Scott, Jr., Substantive Criminal Law § 15.2(b)(6) (3d ed. 2018) (detailing
extraordinary, but inapposite exceptions); Cobb, 905 F.2d at 789 (“mere words” cannot
“justify the use of physical force by a police officer”). By contrast, “[m]utual combat” can
constitute adequate provocation under some circumstances. See Martinez, 988 F.2d at 696;
United States v. Hardin, 443 F.2d 735, 738–39 (D.C. Cir. 1970); 3 LaFave at § 15.2(b)(2).
But when a victim is fleeing from combat and the defendant is neither angry nor in danger,
mutual combat does not support a finding that a defendant acted in a heat of passion. See
Ashford, 718 F.3d at 380 (“[T]he ‘heat of passion’ mitigator plainly does not apply to an
aggressor who is ‘not angry,’ and has multiple opportunities to walk away from a dispute
that he incited.”).
In this case, the district court did not reversibly err in determining that the facts
supported a finding of malice. In his plea agreement, Defendant admitted that he acted
“voluntarily and intentionally with specific intent to do something the law forbids.” Slager,
2018 WL 445497, at *2. Additionally, Defendant admitted that he “fired eight shots at
Scott, and each of those eight shots were fired while Scott was unarmed and running away.”
Id. Defendant’s voluntary, intentional, and repeated discharge of his firearm at Scott as he
attempted to run away “may be expected naturally and probably to cause death.” Celestine,
510 F.2d at 459; Cf. Wright, 594 F.3d at 268 (It is “perfectly foreseeable that someone
w[ill] be killed” when firing a gun “with intent to hurt someone.”).
Nor did the district court err in determining that Defendant’s malice was not negated
by “sudden quarrel or heat of passion.” 18 U.S.C. § 1112(a). Even though Scott yelled
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“Fuck the police” prior to the shooting, the court rightly found that these words were
insufficient to provoke a reasonable officer—or any reasonable person—to kill. Slager,
2018 WL 445497, at *8; see Velazquez, 246 F.3d at 207 (holding that prisoner yelling
“Fuck you, you are not going to tell me what to do” was insufficient to provoke guards to
kill in the “heat of passion”).
Additionally, Defendant’s alleged mutual combat with Scott did not provide
Defendant with adequate provocation because Scott was running away when Defendant
shot him. See Ashford, 718 F.3d at 380. Perhaps most importantly, even though Defendant
now claims he was provoked, Defendant testified at his state proceedings that he was
neither “provoked” nor “angry” during his altercation but was merely acting in “selfdefense.” J.A. 346–47.5
Defendant cannot negate his malice through “sudden quarrel or
heat of passion” when he previously testified he was neither “provoked” nor “angry.”
Ashford, 718 F.3d at 380.
In conclusion, the district court did not reversibly err by inferring Defendant’s
malice from the facts it found credible. Moreover, the court did not reversibly err by
determining that Defendant’s malice was not negated by “sudden quarrel or heat of
passion.” Accordingly, the court properly cross-referenced second-degree murder.
5 Because Defendant admitted in his plea agreement that he acted “willfully,” the
district court found that Defendant was foreclosed from arguing self-defense during his
federal sentencing hearing. Slager, 2018 WL 445497, at *2.
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B.
Next, Defendant argues that the district court erred in applying a two-level sentence
enhancement for obstructing justice based on Defendant’s false statements to SLED.
Defendant raises this issue for the first time on appeal. “Because this issue was not
advanced in the district court, we review the district court decision for plain error.” United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005); see United States v. Brack, 651 F.3d
388, 392 (4th Cir. 2011). For an error to be “plain,” it must be “obvious or clear under
current law.” Brack, 651 F.3d at 392. Under this circumscribed standard of review, we do
not find that the district court plainly erred by applying the obstruction sentencing
enhancement.
A sentencing court may apply the obstruction enhancement when a defendant: (1)
“willfully obstructed or impeded, or attempted to obstruct or impede, the administration of
justice with respect to the investigation . . . of the instant offense of conviction,” and (2)
“the obstructive conduct related to the defendant’s offense of conviction and any relevant
conduct.” U.S.S.G. § 3C1.1 (emphasis added). Defendant argues that the district court
plainly erred in applying this enhancement because Defendant’s false statements to the
SLED investigators “were not made under oath” and the SLED investigators already had
Santana’s video when they interviewed Defendant, meaning that Defendant’s false
statements “did not significantly impede the official investigation.” Appellant’s Br. at 45.
In support of his argument, Defendant emphasizes that the comments to the
obstruction guideline state “[o]rdinarily . . . making false statements, not under oath to law
enforcement officers”—as was the case here—does not warrant application of the
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enhancement. U.S.S.G. § 3C1.1 cmt. n.5 (emphases added). But the comments further
state that “providing a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation” does warrant application of
the enhancement, regardless of whether the materially false statement was made under
oath. Id. cmt. n.4(G) (emphasis added). And the express text of the obstruction guideline
covers “attempted” obstruction of justice, indicating that application of the guideline is
appropriate, at least in some circumstances, even when a defendant’s attempted obstruction
did not in fact result in the obstruction of an investigation. Id.
Accordingly, Section 3C1.1 and its comments do not clearly answer the relevant
question: whether an attempt to significantly obstruct an investigation through unsworn
statements warrants application of the enhancement. Nor has this Court’s case law
provided an “obvious” or “clear” answer to that question. Hughes, 401 F.3d at 547.
Notably, as to that question, our sister circuits have reached divergent answers. Compare
United States v. Girod, 646 F.3d 304, 318 (5th Cir. 2011) (enhancement can be appropriate
based upon attempted, but significant obstruction); United States v. Wolverine, 584 F.
App’x 646, 649 (9th Cir. 2014) (same); with United States v. Adejumo, 772 F.3d 513, 529
(8th Cir. 2014) (enhancement is inappropriate based upon attempted, but significant
obstruction); United States v. Griffin, 310 F.3d 1017, 1022–23 (7th Cir. 2002) (same). In
such circumstances, Defendant cannot meet his burden to show that the district court
plainly erred by applying a two-level sentencing enhancement for attempted, yet
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significant, obstruction of justice through unsworn statements to law enforcement
investigators. 6

Outcome: In sum, the district court committed no reversible error in sentencing Defendant.
First, the district court did not clearly err in crediting Santana’s description of the encounter and discrediting Defendant’s description. Second, the court properly inferred, from these facts, malice as required for a second-degree murder cross-reference. Finally, the district court did not plainly err in applying an obstruction of justice enhancement. Accordingly, the district court’s sentence is
AFFIRMED.

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