by the second-degree murder guideline. Section 2A1.2 was written by the Commission to address the heartland of second-degree murders. See U.S. Sentencing Guidelines Manual § 2A1.2 (1994). By statutory definition, a second-degree murder is one that was committed without premeditation. See 18 U.S.C.A. § 1111(a) (West Supp.1997). Indeed, Hodge offers no serious argument to the contrary. The argument is made, however, that the Commission must have considered premeditation in formulating the second-degree murder guideline, U.S.S.G. § 2A1.2, because it set a higher base offense level for the first-degree murder guideline, U.S.S.G. § 2A1.1, while establishing a lower base offense level for the second-degree murder guideline. See United States v. Kelly, 1 F.3d 1137, 1139-41 (10th Cir.1993) (<HOLDING>). It cannot be doubted that in establishing a
holding that conviction for seconddegree murder operates as implied acquittal on firstdegree murder count holding that it was not error to allow the penalty phase jury to hear evidence that the defendants previous conviction of seconddegree murder was obtained pursuant to an indictment for firstdegree murder holding no offense of attempted seconddegree murder where seconddegree murder defined only as unintentional but reckless killing of another under circumstances manifesting indifference to human life holding that although premeditation is outside the heartland of seconddegree murder guideline upward departure from seconddegree murder guideline based on premeditation was improper because commission considered the defendants state of mind in assigning a higher base offense level to firstdegree murder than to seconddegree murder holding that first and seconddegree intentional murder verdicts are consistent with a felony murder verdict because lack of intent is not an element of seconddegree felony murder