US v. Gary Moore

Filing 920090126

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4279

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY DALE MOORE, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:07-cr-00023-1)

Submitted:

December 31, 2008

Decided:

January 26, 2009

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jane Moran, Williamson, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Lisa G. Johnston, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Gary Dale Moore appeals his conviction and resulting 180-month sentence for possession of a firearm and ammunition by a convicted felon after pleading guilty. Moore argues that the

district court erred in denying his motion to suppress evidence discovered during execution of a fugitive arrest warrant served at the residence court's of a third that party. he He also for contests an the

district

finding

qualified

enhanced

sentence under the Armed Career Criminal Act. we affirm.

Finding no error,

The factual findings underlying a motion to suppress are reviewed for clear error, while the legal determinations are reviewed de novo. See Ornelas v. United States, 517 U.S. 690,

691 (1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). reviews When a suppression motion has been denied, this court the evidence in the light most favorable to the

government.

See United States v. Seidman, 156 F.3d 542, 547 We have reviewed the briefs and the joint

(4th Cir. 1998).

appendix and uphold the district court's ruling from the bench that the arresting officers had reliable information that an out of state fugitive arrest warrant existed for Moore and therefore the officers had probable cause to arrest him. Further, the

search of the residence was incident to the lawful entry to

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serve the warrant and entry was with the consent of the thirdparty resident of the dwelling. Moore qualified for sentencing under the Armed Career Criminal Act (ACCA) based on two Ohio aggravated burglary

charges and one jailbreaking conviction. that, although he was he tried as an

Moore argues on appeal on as the a aggravated and

adult crimes

burglary

charges,

committed

the

juvenile

because his crimes did not involve the use or carrying of a firearm, knife, or destructive device, as required by 18 U.S.C. § 924(e) (2006), these convictions should not qualify as ACCA crimes. The Government argues that Moore's argument is premised

on an erroneous interpretation of 18 U.S.C. § 924(e). Whether a previous conviction qualifies as a "crime punishable by imprisonment for a term exceeding one year" is defined by the law of the state's conviction. 921(a)(20) (2006). See 18 U.S.C. §

Under Ohio law, any person who is over the

age of fourteen may be tried as an adult, with the resulting conviction to be treated as an adult conviction. Code §§ 2152.02, documents plea 2152.12. for The Government burglary the of See Ohio Rev. introduced a the a

charging written

aggravated to both

dwelling, court the

agreement

counts, the

Ohio to

order Adult

deferring

sentencing

and

referring

case

Probation Officer for a recommendation on whether Moore should

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serve his sentence in a juvenile facility, and a journal entry from the state court treating Moore as an adult at sentencing. This court has found that if the defendant was

prosecuted as an adult, it is irrelevant that the defendant was a juvenile at the time of the offense for the purposes of § 924(e), as long as the offense is punishable by more than one year imprisonment. United States v. Lender, 985 F.2d 151, 155Therefore, Moore's aggravated burglary

56 (4th Cir. 1993).

convictions qualify as two predicate felonies under the ACCA and were properly attributed. Accordingly, we affirm the judgment. 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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