United States v. Byron Moore

711 F. App'x 757
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 24, 2017
Docket16-50532 Summary Calendar
StatusUnpublished
Cited by4 cases

This text of 711 F. App'x 757 (United States v. Byron Moore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Byron Moore, 711 F. App'x 757 (5th Cir. 2017).

Opinion

PER CURIAM: *

Byron Keith Moore appeals his conviction of possession of a firearm by a convicted felon and his sentence of 210 months in prison. See 21 U.S.C § 924.

According to Moore, the evidence presented at trial was insufficient to support his conviction. Because Moore preserved this issue for appeal, we will uphold the jury’s verdict only if a reasonable trier of fact could conclude beyond a reasonable doubt that the evidence established that Moore was previously convicted of a felony, that he knowingly possessed a firearm, and that the firearm traveled in or affected interstate commerce. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Anderson, 559 F.3d 348, 353 (5th Cir. 2009); 18 U.S.C. §§ 922(g)(1), 924(a)(1)(B). Moore challenges only the evidence of his knowing possession of the firearm.

The jury reasonably inferred that the presence of Moore’s wallet, his current prescription, and men’s clothing in the drawer with the gun, combined with the DNA evidence on the gun, established that Moore knew of and had access to, if not control over, the firearm. See Henderson v. United States, — U.S. —, 135 S.Ct. 1780, 1784, 191 L.Ed.2d 874 (2015); United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995). A reasonable trier of fact could have concluded from this evidence that Moore knowingly possessed the firearm. See United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999); United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994).

Moore additionally challenges the application of the armed career criminal provisions of § 924(e) and U.S.S.G. § 4B1.4, but presents argument to this court that differ from those he made in the district court and we,, therefore, review only for plain error. See United States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012). To show plain error, Moore must show a forfeited error that is clear or obvious and that affects his substantial rights. See United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009). If he makes such a showing, we may exercise our discretion to correct the error if, “it seriously affects the fairness, integrity, or public reputation of judicial proceedings and result[s] in a miscarriage of justice.” Id. at 802 (internal quotation marks and citations omitted).

Section 924(e)(1) imposes a 15-year mandatory minimum term in prison for a person possessing a firearm in violation of § 922(g) who has three prior convictions for violent felonies or serious drug offenses. § 924(e)(1). A violent felony is one of a number of enumerated offenses or a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “use of force” clause). § 924(e)(2)(B). Although the statutory definition of a violent felony also includes conduct presenting a “serious potential risk of physical injury to another,” the Supreme Court has held this residual clause to be unconstitutional. Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2556, 192 L.Ed,2d 569 (2015). A serious drug offense is an offense prohibited by the Controlled Substances Act (21 U.S.C. § 801 et seq.), and other specific statutes, and for which the law imposes a maximum term of ten years or more in prison. § 924(e)(2)(A). Section 4B1.4 defines a violent felony and a serious drug offense as those terms are defined in § 924(e). See § 4B1.4, cmt. (n.l).

To the extent that the district court may have relied on the presentence report (PSR) alone to determine that Moore had at least three prior violent felonies or serious drug offenses for the purposes of § 924(e) and § 4B1.4, such reliance would be error. See United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). However, because Moore specifically indicated that he had no dispute with the facts in the PSR, and because the supplemented record on appeal confirms the PSR’s descriptions of the relevant offenses, Moore fails to show that the district clearly or obviously erred. See Henao-Melo, 591 F.3d at 801; United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006); United States v. White, 465 F.3d 250, 254 (5th Cir. 2006).

Moore similarly fails to show reversible plain error in the district court’s characterization of his prior convictions as violent felonies or serious drug offenses for purposes of § 924(e) and § 4B1.4. See Henao-Melo, 591 F.3d at 801. As to his 1992 narcotics conviction, the supplemented record shows that Moore pleaded guilty to one count of violating 21 U.S.C. § 841(a)(1). Section 841(b)(1)(C) provides a statutory maximum term in prison of 20 years for an amount of .64 grams of cocaine base, a schedule II substance. See 21 U.S.C. § 812(c). Because the offense was one prohibited by the Controlled Substances Act (21 U.S.C. § 801 et seq.) and the maximum prison term for the offense was more than 10 years, the district court did not err, much less clearly or obviously, in treating it as a serious drug offense under the Armed Career Criminal Act or § 4B1.4. See § 924(e)(2)(A); § 4B1.4, cmt. (n.l); Henao-Melo, 591 F.3d at 801.

Turning to Moore’s aggravated assault convictions, assault is not an enumerated offense under § 924(e)(2)(B)(ii) or § 4B1.4 by reference. Therefore, in light of Johnson, these two convictions qualify as violent felonies under § 924(e)(2)(B) only if Texas aggravated assault with a deadly weapon meets the.“use of force” clause of § 924(e)(2)(B)(ii). Texas Penal Code § 22.02(a) defines aggravated assault as an assault as described in Texas Penal Code § 22.01 and the perpetrator, “(1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Tex. Penal Code § 22.02(a).

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711 F. App'x 757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-byron-moore-ca5-2017.