US v. Archie Fulton Moore

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:03-cr-00374-JAB-1 Copies to all parties and the district court/agency. [999291335].. [13-4448]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4448

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARCHIE FULTON MOORE,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:03-cr-00374-JAB-1)

Submitted:

January 30, 2014

Before MOTZ and
Circuit Judge.

SHEDD,

Circuit

Decided:

Judges,

and

February 5, 2014

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.
Ripley Rand, United States Attorney, Harry L.
Hobgood, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Archie Fulton Moore pled guilty in 2004 to one count
of conspiracy to distribute in excess of fifty grams of crack
cocaine,

21

U.S.C.

§§

841(b)(1)(A),

846

(2012).

originally sentenced to 260 months’ imprisonment.
this

court

vacated

Moore’s

sentence

and

He

was

On appeal,

remanded

for

resentencing in accordance with United States v. Booker, 543
U.S. 220 (2005).
On

remand,

imprisonment
affirmed.

—
In

the

Moore

was

statutory

October

2011,

sentenced

mandatory
Moore

to

240

minimum.

filed

a

28

months’

This
U.S.C.

court
§ 2255

(2012) motion based on this court’s decision in United States v.
Simmons,

649

F.3d

237

(4th

Cir.

2011).

The

district

court

granted the motion and scheduled a third sentencing hearing.
The revised presentence report (PSR} included, for the first
time,

a

recommendation

enhancement

under

§ 2D1.1(b)(12)
purpose

of

substance.”

U.S.

(2012),

that

Moore

Sentencing
for

manufacturing

Guidelines

maintaining
or

the

“a

a

two-level

Manual

premises

distributing

a

(USSG)
for

the

controlled

The court overruled Moore’s objection, adopted the

PSR, and imposed a 235-month sentence.
that

receive

district

enhancement,

thereby

court

erred

increasing

in
his

Moore appeals, arguing
applying

advisory

the

Guidelines

from 188-235 months’ imprisonment to 235-293 months.
2

two-level
range

We affirm.

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We

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review

the

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lower

court’s

application

of

the

Guidelines de novo and its factual findings for clear error.
United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
USSG § 2D1.1(b)(12) provides that “[i]f the defendant maintained
a premises for the purpose of manufacturing or distributing a
controlled

substance,

increase

[the

sentence]

by

2

levels.”

According to the Guidelines commentary, “[a]mong the factors the
court

should

consider

in

determining

whether

the

defendant

maintained the premises are (A) whether the defendant held a
possessory interest in (e.g., owned or rented) the premises and
(B) the extent to which the defendant controlled access to, or
activities

at,

the

premises.”

USSG

§

2D1.1

cmt.

n.17.

“Manufacturing or distributing a controlled substance need not
be the sole purpose for which the premises were maintained, but
must be one of the defendant’s primary or principal uses for the
premises.”

Id.

Moore

conceded

control over the premises.
established

that

drug

that

he

had

the

requisite

Rather, he argued that the evidence

activity

was

only

an

incidental

or

collateral use of his property.
The district court disagreed, based on the following
evidence.

Over

a
six

six-month

period

purchases

of

in

made

residence.

During two of those transactions, Moore was cooking

3

cocaine

confidential

informants

cocaine hydrochloride into crack.

crack

2001,

at

Moore’s

In addition, Moore’s sister,

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(who lived nearby) stated that Moore supplied her with crack
cocaine on a regular basis.

According to his sister, Moore had

obtained ten to eighteen ounces of powder cocaine at least once
a week for the previous two years and cooked it into crack at
his trailer.
associated

Moreover, a search of the trailer revealed items

with

drug

distribution:

scales,

plastic

baggies,

“cooking” apparatus, a crack pipe, and firearms.
We find that this evidence supports the inference that
Moore maintained and/or controlled the trailer for the purpose
of storing and manufacturing drugs for distribution.

See United

States v. Miller, 698 F.3d 699, 707 (8th Cir. 2012) (holding
that enhancement applies “when a defendant uses the premises for
the purpose of substantial drug-trafficking activities, even if
the

premises

was

also

her

family

home

at

the

times

in

question”), cert. denied, 133 S. Ct. 1296 (2013); United States
v.

Sanchez,

710

F.3d

724

(7th

Cir.

2013)

(noting

that

“enhancement clearly contemplates that premises can have more
than one principal use . . . the proper inquiry is whether the
drug transactions were a second primary use of the premises or
were instead merely a collateral use”), petition for cert. filed
(June 3, 2013).

Accordingly, the district court did not err in

applying the enhancement and we affirm Moore’s sentence.
dispense

with

oral

argument

because

4

the

facts

and

We
legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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