UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4279
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY DALE MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00023-1)
Submitted: December 31, 2008 Decided: January 26, 2009
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jane Moran, Williamson, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Lisa G. Johnston, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Dale Moore appeals his conviction and resulting
180-month sentence for possession of a firearm and ammunition by
a convicted felon after pleading guilty. Moore argues that the
district court erred in denying his motion to suppress evidence
discovered during execution of a fugitive arrest warrant served
at the residence of a third party. He also contests the
district court’s finding that he qualified for an enhanced
sentence under the Armed Career Criminal Act. Finding no error,
we affirm.
The factual findings underlying a motion to suppress
are reviewed for clear error, while the legal determinations are
reviewed de novo. See Ornelas v. United States, 517 U.S. 690,
691 (1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). When a suppression motion has been denied, this court
reviews the evidence in the light most favorable to the
government. See United States v. Seidman, 156 F.3d 542, 547
(4th Cir. 1998). We have reviewed the briefs and the joint
appendix and uphold the district court’s ruling from the bench
that the arresting officers had reliable information that an out
of state fugitive arrest warrant existed for Moore and therefore
the officers had probable cause to arrest him. Further, the
search of the residence was incident to the lawful entry to
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serve the warrant and entry was with the consent of the third-
party resident of the dwelling.
Moore qualified for sentencing under the Armed Career
Criminal Act (ACCA) based on two Ohio aggravated burglary
charges and one jailbreaking conviction. Moore argues on appeal
that, although he was tried as an adult on the aggravated
burglary charges, he committed the crimes as a juvenile and
because his crimes did not involve the use or carrying of a
firearm, knife, or destructive device, as required by 18 U.S.C.
§ 924(e) (2006), these convictions should not qualify as ACCA
crimes. The Government argues that Moore’s argument is premised
on an erroneous interpretation of 18 U.S.C. § 924(e).
Whether a previous conviction qualifies as a “crime
punishable by imprisonment for a term exceeding one year” is
defined by the law of the state’s conviction. See 18 U.S.C. §
921(a)(20) (2006). Under Ohio law, any person who is over the
age of fourteen may be tried as an adult, with the resulting
conviction to be treated as an adult conviction. See Ohio Rev.
Code §§ 2152.02, 2152.12. The Government introduced the
charging documents for aggravated burglary of a dwelling, a
written plea agreement to both counts, the Ohio court order
deferring sentencing and referring the case to the Adult
Probation Officer for a recommendation on whether Moore should
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serve his sentence in a juvenile facility, and a journal entry
from the state court treating Moore as an adult at sentencing.
This court has found that if the defendant was
prosecuted as an adult, it is irrelevant that the defendant was
a juvenile at the time of the offense for the purposes of §
924(e), as long as the offense is punishable by more than one
year imprisonment. United States v. Lender, 985 F.2d 151, 155-
56 (4th Cir. 1993). Therefore, Moore’s aggravated burglary
convictions qualify as two predicate felonies under the ACCA and
were properly attributed.
Accordingly, we affirm the judgment. 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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