United States v. Moore , 326 F. App'x 794 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 20, 2009
No. 07-11270
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
BYRON DEMARCUS MOORE
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-138-ALL
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Byron Demarcus Moore appeals from his guilty plea conviction and
sentence for being a felon in possession of a firearm. He argues that the district
court erred by applying U.S.S.G. § 2K2.1(a)(2) to his sentence based upon the
classification of his prior Texas conviction for possession of a prohibited firearm
as a crime of violence, as that term is defined in U.S.S.G. § 4B1.2(a). Although
Moore acknowledges that this argument was rejected in United States v. Serna,
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 07-11270
309 F.3d 859, 864 (5th Cir. 2002), he contends that Serna has been overruled or
undermined by Begay v. United States, 128 S. Ct. 1581 (2008). Begay did not
specifically overrule Serna regarding this issue. Moreover, the commentary to
§ 4B1.2 states, “Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a)
(e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is
a ‘crime of violence.’” § 4B1.2, comment. (n.1).
In his reply brief, Moore addresses that commentary and argues that it is
not applicable because the district court improperly relied upon the presentence
report’s quoted language from the indictment to classify his prior Texas
conviction as a crime of violence. However, defense counsel admitted at
sentencing that Moore’s prior conviction was for possession of a short-barreled
shotgun. Thus, even if we assume that Moore’s argument was properly raised
before this court, the district court was permitted to utilize Moore’s admission
when determining whether his prior conviction was a crime of violence under
§ 2K2.1(a)(2). See United States v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir.
2006). In light of Serna and § 4B1.2’s commentary, the district court did not err
by applying § 2K2.1(a)(2) to Moore’s sentence. See United States v. Mohr, 554
F.3d 604, 607 n.1 (5th Cir. 2009), petition for cert. filed (Mar. 31, 2009) (No. 08-
9578); United States v. Sarmiento-Funes, 374 F.3d 336, 338 (5th Cir. 2004).
Moore also challenges the constitutionality of 18 U.S.C. § 922(g) in light
of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). This argument is
foreclosed by United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009).
The district court’s judgment is AFFIRMED.
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