UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 thirdparty 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