United States v. Johnny Lee Moye

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 8, 2005
No. 05-11183 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80115-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY LEE MOYE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 8, 2005)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Johnny Lee Moye appeals his 180-month sentence for possession of a
firearm by a felon. Moye argues that his right to a jury trial under the Sixth
Amendment was violated when the district court, as a matter of law, determined
that Moye’s admitted previous convictions were qualifying offenses for the
purpose of enhancing Moye’s sentence under the Armed Career Criminal Act.
Because the determination that Moye’s previous convictions were qualifying
offenses was a question of law for the court, we affirm.
We review Moye’s sentence de novo, but will reverse only for harmful error.
United States v. Paz, 405 F.3d 946, 948-49 (11th Cir. 2005).
Moye pleaded guilty to one count of possession of a firearm by a felon. 18
U.S.C. § 922(g)(1). Moye’s admitted previous convictions include attempted
burglary, sale of cocaine, sale of marijuana, and resisting an officer with violence.
The district court concluded that these previous convictions qualified Moye as an
armed career criminal. Under section 922(g)(1), the statutory maximum term of
imprisonment is 120 months, but under the mandatory minimum sentence
provision of the Armed Career Criminal Act, a defendant with three qualifying
convictions is subject to a minimum sentence of 180 months. 18 U.S.C. § 924(e).
Because Moye has at least three qualifying previous convictions, the district court
sentenced him under section 924(e).
Although he admits his previous convictions, Moye argues that the district
2
court violated his right to a jury trial under the Sixth Amendment when the court
determined that his previous convictions were qualifying offenses for an enhanced
sentence under section 924(e). In Moye’s view, the question whether a previous
conviction is a qualifying offense for the purpose of sentence enhancement is a
factual question for the jury, not the court. Moye is wrong.
Whether a previous conviction is a qualifying offense under section 924(e)
is a question of law for the court. See Shepard v. United States, 544 U.S. __, 125 S.
Ct. 1254 (2005). Although the Supreme Court has limited the sources to which a
judge may look in determining whether a previous conviction is a qualifying
offense under section 924(e), id. at __, 125 S. Ct. at 1257, Moye does not argue
that the district court looked beyond those sources in sentencing him as an armed
career criminal. The district court did not err.
AFFIRMED.
3