United States v. Moss , 180 F. App'x 444 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4505
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EUGENE BERNARD MOSS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-04-160-V)
Submitted: April 19, 2006 Decided: May 17, 2006
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James E. Gronquist, NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Keith M. Cave, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eugene Bernard Moss pled guilty without a plea agreement
to one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000). The district court
sentenced him to 115 months in prison. Moss timely appeals his
sentence.
Moss first contends that his sentence violates the Sixth
Amendment, pursuant to United States v. Booker, 543 U.S. 220(2005). As Moss correctly notes, Booker held that the mandatory
application of the federal sentencing guidelines to impose
sentencing enhancements based on facts found by the court by a
preponderance of the evidence violated the Sixth Amendment. Id. at
233-34. However, the district court treated the guidelines as
advisory in determining Moss’ sentence and the use of the
preponderance of the evidence standard while applying the
guidelines as advisory does not violate the Sixth Amendment.
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).
Moss also argues that the district court erred by
allocating two criminal history points under U.S. Sentencing
Guidelines Manual §§ 4A1.1(b) and 4A1.2(e) (2003) for an unlawful
concealment adjudication that occurred when he was eleven years
old. We find that such an adjudication did not constitute a
“juvenile status offense” under USSG § 4A1.2(c)(2) and that his
commitment to the Office of Juvenile Justice for violating
probation for that adjudication amounted to confinement under USSG
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§ 4A1.2(d)(2). Consequently, the unlawful concealment adjudication
was properly included in Moss’ criminal history calculation.
For these reasons, we affirm Moss’ 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
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