Wilson

MEMORANDUM **

Wilson appeals from his conviction for second degree murder under 18 U.S.C. § 1111 and use of a firearm in a crime of violence under 18 U.S.C. §§ 1153 and 924(c)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Wilson argues that the district judge “erred in allowing the second degree murder charge to go to the jury” because “the [government failed to prove ... malice aforethought,” an element of second degree murder. When a defendant fails to move for acquittal during trial, review is limited to plain error. United States v. Ross, 338 F.3d 1054, 1057 (9th Cir.2003). At trial, Wilson challenged the sufficiency of the evidence as to premeditation, an element of first degree murder, and renewed the same challenge at the close of all the evidence. He did not, however, challenge the sufficiency of the evidence with respect to malice aforethought prior to this appeal. Thus, we review for plain error. Cf. Ross, 338 F.3d at 1057 .

Wilson argues that his motion for acquittal should have been granted because the government “offered no proof that [Wilson] acted with malice aforethought.” We have stated that “[m]alice aforethought may be inferred from…