U.S. v. Moore, No. 96-3211EM

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before RICHARD S. ARNOLD, Chief Judge, HANSEN; RICHARD S. ARNOLD
• Citation: 108 F.3d 878
• Parties: UNITED STATES of America, Appellee, v. Opera MOORE, Appellant.
• Decision Date: 13 March 1997
• Docket Number: No. 96-3211EM

Page 878

108 F.3d 878 UNITED STATES of America, Appellee,
v.
Opera MOORE, Appellant. No. 96-3211EM. United States Court of Appeals,
Eighth Circuit. Submitted Feb. 10, 1997.
Decided March 13, 1997.

Page 879

John Francis Garvey, Jr., St. Louis, MO, argued, for appellant.

Gabriel E. Gore, St. Louis, MO, argued (Edward L. Dowd, Jr., United States Attorney, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY, ^* Chief District Judge.

RICHARD S. ARNOLD, Chief Judge.

Opera Moore appeals his convictions of: (1) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); and (2) being in possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871. He was convicted by a jury and sentenced by the District Court ¹ to 300 months' imprisonment on count I and 120 months' imprisonment on count II, to be served concurrently. The Court also sentenced Moore to three years of supervised release on count I and two years of supervised release on count II, with the sentences to be served concurrently. We affirm.

I.

During an undercover narcotics purchase being conducted by members of the St. Louis Police Department's Street Corner Apprehension Team (SCAT), a man, later identified as Opera Moore, was seen standing on the porch of the house where alleged drug trafficking was occurring. The police converged on the residence in order to arrest the persons suspected of participating in the drug trafficking activity. Detective Mueller was one of the first officers to arrive at the scene. Upon arriving at the scene, Mueller encountered Moore standing on the front porch. For his safety, and the safety of the other officers, Mueller conducted a pat-down search of Moore and recovered a 12-gauge sawed-off shotgun from Moore's rear waistband. Detective Siscel was also present on the porch and witnessed Mueller remove the gun from Moore's pants. Moore was then

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placed under arrest for being a felon in possession of a concealable weapon.

During the trial, Moore testified on his own behalf and denied being in possession of a firearm on the day of the drug bust. He stated that the police had found the gun and incorrectly attributed it to him. Moore's testimony at trial completely contradicted the testimony of three of the police officer witnesses who testified on behalf of the government.

Moore appeals his convictions on three grounds. First, he contends that the District Court erred in sentencing him as an armed career criminal pursuant to 18 U.S.C. § 924(e). Second, he contends that the Court did not make the requisite findings to support the application of an obstruction of justice enhancement under U.S.S.G. § 3C1.1, and claims that the enhancement was clearly erroneous. ² Finally, he argues that there was insufficient evidence for the jury to convict him.

II.

18 U.S.C. § 924(e)(1) states:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years....

The statute defines "violent felony" as

any crime punishable by imprisonment for a term exceeding one year ... that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B)(i), (ii).

At the time of trial, Moore had 17 prior convictions. At least six of these prior convictions qualify as violent felonies...