United States v. Derrick Howard

1The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3240
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Currie Moore, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 22, 2008
Filed: August 29, 2008 (corrected September 4, 2008)
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Before MELLOY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Currie Moore challenges the sentence the district court 1 imposed after he
pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found that Moore
possessed the firearm in connection with another felony offense. Accordingly, the
court applied a 4-level specific offense characteristic under USSG § 2K2.1(b)(6), and
imposed a statutory maximum sentence of 120 months’ imprisonment, which is within
the advisory guideline range. Moore appealed, arguing that his Sixth Amendment

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right to a jury trial was violated when the district court found, by a preponderance of
evidence, certain facts supporting the specific offense characteristic, especially
because this court may now apply an appellate presumption of reasonableness to a
sentence within the advisory guideline range.
We review the issues raised by Moore for plain error, as he did not raise them
in the district court. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en
banc). We conclude that the district court did not err in deciding the facts relevant to
sentencing or in applying a preponderance-of-the-evidence standard. See Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000) (other than prior conviction, any fact that
increases penalty for crime beyond statutory maximum must be submitted to jury and
proved beyond reasonable doubt); United States v. Garcia-Gonon, 433 F.3d 587, 593
(8th Cir. 2006) (under advisory Guidelines regime, sentencing judges are only
required to find sentence-enhancing facts by preponderance of evidence).
Furthermore, Moore’s apparent challenge to the appellate presumption of
reasonableness for sentences within the advisory range is foreclosed by Rita v. United
States, 127 S. Ct. 2456, 2462-68 (2007).
Accordingly, we affirm. See 8th Cir. R. 47B.
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