United States v. Moore , 285 F. App'x 29 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5099
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AUBREY T. MOORE, III, a/k/a Tom,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00091-IMK-JSK-1)
Submitted: July 7, 2008 Decided: July 17, 2008
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph J. Harris, Morgantown, West Virginia, for Appellant. Sharon
L. Potter, United States Attorney, Zelda E. Wesley, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aubrey Thomas Moore, III, pled guilty to distribution of
heroin. The district court sentenced him to 151 months
imprisonment. On appeal, Moore argues that his prior conviction
for possession of the frame or receiver of a machine gun should not
count as a crime of violence and therefore the district court erred
in applying the career offender enhancement to his sentence.
Finding no error, we affirm Moore’s sentence.
The career offender sentencing enhancement applies if:
“(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S. Sentencing
Guidelines Manual § 4B1.1(a) (2006). Moore admits that he was at
least eighteen when he committed the underlying offense of
distribution of heroin, that this offense is a felony controlled
substance offense, and that he had one prior conviction for a
controlled substance offense. He disputes whether his prior
conviction for possession of the frame or receiver of a machine gun
should count as a crime of violence.
Moore concedes that the letter of the law provides that
it should count, but he asserts that, without aggravating factors,
- 2 -
it should not be considered a per se crime of violence. In support
of his argument, Moore relies on United States v. Johnson, 953 F.2d
110, 115 (4th Cir. 1991), in which we held that the offense of
possession of a firearm by a felon is not a per se “crime of
violence” under USSG § 4B1.2. The Johnson court explained that the
offense of felon in possession of a firearm was not classified as
a crime of violence unless the crime involved conduct that posed a
risk of physical injury to another. Id. at 112.
Possession of a frame or receiver of a machine gun,
however, is per se a crime of violence. Application Note 1 of USSG
§ 4B1.2 provides that unlawful possession of a firearm described in
26 U.S.C. § 5845(a) (2000) is a crime of violence. Section 5845(a)
includes a machine gun, which is defined as “any weapon which
shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a
single function of the trigger. The term shall also include the
frame or receiver of any such weapon. . . .” 26 U.S.C. § 5845(b).
Thus, Moore’s prior conviction for possession of the
frame or receiver of a machine gun--which is the equivalent of a
machine gun--is a crime of violence under Application Note 1 of
USSG § 4B1.2, because a machine gun is a firearm defined in § 5845.
We therefore conclude that the district court correctly determined
that Moore’s prior conviction for possession of a frame or receiver
of a machine gun was a crime of violence.
- 3 -
Accordingly, we find that the court correctly applied the
career offender enhancement, and we affirm Moore’s 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
- 4 -