United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 27, 2007
Charles R. Fulbruge III
Clerk
No. 06-10209
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEO CORNELIUS MOORE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-138-ALL
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cleo Cornelius Moore appeals the sentence imposed following
his guilty-plea conviction of bank robbery. Moore argues that
the district court erred by sentencing him as a career offender
under U.S.S.G. § 4B1.1 and that the district court’s upward
departure to the statutory maximum sentence of 240 months of
imprisonment was unreasonable.
Moore contends that the career offender enhancement should
not have been applied because his prior North Carolina state
convictions for common law robbery do not meet the definition of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-10209
-2-
a crime of violence under U.S.S.G. § 4B1.2. He asserts that the
North Carolina definition of common law robbery encompasses theft
from a person but that this conduct does not qualify as a crime
of violence under § 4B1.2.
We review the district court’s application of the Guidelines
de novo and its factual findings for clear error. United States
v. Charon, 442 F.3d 881, 886-87 (5th Cir.), cert. denied,
127 S. Ct. 260 (2006). Because robbery is an enumerated offense
under § 4B1.2, comment. (n.1), we look to whether the state
offense constitutes “robbery” as that term is understood in its
“ordinary, contemporary, [and] common meaning.” See United
States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir.)
(internal quotation marks and citation omitted), cert. denied,
126 S. Ct. 253 (2005). “[T]he generic form of robbery ‘may be
thought of as aggravated larceny,’ containing at least the
elements of ‘misappropriation of property under circumstances
involving [immediate] danger to the person.” United States v.
Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006)
(citation omitted) (addressing enumerated offense under U.S.S.G.
§ 2L1.2). This includes taking the property by force or by
putting the person in fear. Id.
In North Carolina, common law robbery is defined as “the
felonious, non-consensual taking of money or personal property
from the person or presence of another by means of violence or
fear.” State v. Parker, 369 S.E.2d 596, 600 (N.C. 1988)
No. 06-10209
-3-
(internal quotation marks and citation omitted). Because this
definition substantially corresponds to the elements of the
generic offense, the district court did not err by applying the
career offender enhancement based on its finding that Moore’s
state common law robbery offenses qualified as crimes of
violence. See Charon, 442 F.3d at 886-87.
Moore also argues that his sentence is unreasonable because
the district court departed upward from the advisory guidelines
range based on his criminal history, which had already been taken
into account in calculating his criminal history score and in
applying the career offender enhancement. He contends that the
district court erred by not analyzing the intermediate steps in
the sentencing table before arriving at the 240-month sentence
imposed.
We review the district court’s decision to depart and the
extent of departure for abuse of discretion. See United States
v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). The district court
upwardly departed under U.S.S.G. § 4A1.3, p.s., finding that
Moore’s “criminal history category substantially under-represents
the seriousness of his criminal history and the likelihood that
he will commit other crimes.” The district court considered the
factors in 18 U.S.C. § 3553(a), including the facts of Moore’s
prior convictions and the objectives of punishment, deterrence,
and protection of the public. The district court reached the
sentence imposed by moving incrementally down the sentencing
No. 06-10209
-4-
table by three levels in Criminal History Category VI. See
United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994)
(en banc). Because the reasons offered by the district court
advance the objectives in 18 U.S.C. § 3553(a) and are justified
by the facts of the case, the district court did not abuse its
discretion in imposing the 240-month sentence. See United States
v. Saldana, 427 F.3d 298, 310 (5th Cir.), cert. denied,
126 S. Ct. 810 (2005); United States v. Smith, 417 F.3d 483,
491-93 (5th Cir.), cert. denied, 126 S. Ct. 713 (2005).
AFFIRMED.