United States v. Moore

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4466

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TROY ALLEN MOORE,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, District
Judge. (CR-02-10059)

Submitted: December 18, 2003 Decided: January 15, 2004

Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appellant.
John L. Brownlee, United States Attorney, R. Lucas Hobbs, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Troy Allen Moore appeals his conviction and sentence on

narcotics and firearms charges, in violation of 18 U.S.C.

§§ 922(g)(9), 924(c) (2000), 21 U.S.C. § 841(a)(1) (2000). The

district court sentenced Moore to a total of 106 months’

imprisonment, five years of supervised release, and a $700 special

assessment. Moore’s attorney has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), discussing the propriety

of the district court’s two level enhancement pursuant to U.S.

Sentencing Guidelines Manual § 3C1.1 (2002), but concluding that

there are no meritorious grounds for appeal. Moore was notified of

his right to file an additional brief, but failed to do so.

By counsel, Moore challenges the enhancement of his

offense level for perjury at trial. Moore’s trial testimony was a

direct attempt to rebut the evidence against him, including that

offered by Special Agent Tom Lesnak of the Bureau of Alcohol,

Tobacco, Firearms and Explosives, and the contents of an audio tape

which recorded illegal narcotics transactions between Moore and a

government informant. At trial, Moore denied selling any drugs to

the informant and further denied admissions he made following his

arrest that he sold drugs to the informant and that he was a user

of illegal drugs. We have reviewed the record and conclude that

the district court’s enhancement of Moore’s sentence was made in

accordance with the mandates of United States v. Dunnigan, 507 U.S.

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87, 95 (1993), and was proper. There was ample evidence to support

the district court’s determination that Moore’s testimony was

false, material, and was not due to confusion, mistake, or a

faulty memory. Id. at 94.

In accordance with Anders, we have thoroughly examined

the entire record for any potentially meritorious issues; we find

none. There were no irregularities in the pre-trial or trial

process, and we find that Moore was sentenced upon a proper

application of the United States Sentencing Guidelines and

consistent with statutory and constitutional law. Accordingly, we

affirm Moore’s conviction and sentence.

This court requires that counsel inform his client, in

writing, of his right to petition the Supreme Court of the United

States for further review. If the client requests that a petition

be filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to

withdraw from representation. Counsel's motion must state that a

copy thereof was served on the client. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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