United States v. Archie Moore ( 2014 )

UNPUBLISHED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 Decided: February 5, 2014
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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). He was
originally sentenced to 260 months’ imprisonment. On appeal,
this court vacated Moore’s sentence and remanded for
resentencing in accordance with United States v. Booker, 543
U.S. 220 (2005).
On remand, Moore was sentenced to 240 months’
imprisonment — the statutory mandatory minimum. This court
affirmed. In October 2011, Moore filed a 28 U.S.C. § 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 that Moore receive a two-level
enhancement under U.S. Sentencing Guidelines Manual (USSG)
§ 2D1.1(b)(12) (2012), for maintaining “a premises for the
purpose of manufacturing or distributing a controlled
substance.” The court overruled Moore’s objection, adopted the
PSR, and imposed a 235-month sentence. Moore appeals, arguing
that the district court erred in applying the two-level
enhancement, thereby increasing his advisory Guidelines range
from 188-235 months’ imprisonment to 235-293 months. We affirm.
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We review the 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 that he had the requisite
control over the premises. Rather, he argued that the evidence
established that drug activity was only an incidental or
collateral use of his property.
The district court disagreed, based on the following
evidence. Over a six-month period in 2001, confidential
informants made six purchases of crack cocaine at Moore’s
residence. During two of those transactions, Moore was cooking
cocaine hydrochloride into crack. 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. Moreover, a search of the trailer revealed items
associated 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. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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