# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-3028

___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee

v. Larry Davis lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Western District of Missouri - Kansas City

____________ Submitted: April 16, 2014 Filed: June 12, 2014 [Published]

____________ Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

____________ PER CURIAM. Larry Davis was convicted of being a felon in possession of a firearm. At sentencing, the district court 1 imposed a sentence of 120 months of imprisonment after

1 The Honorable Brian C. Wimes, United St ates District Judge for the Western District of Missouri.applying the first-degree murder cross-re ference from the United States Sentencing Guidelines Manual ("U.S.S.G.") § 2A1.1. Da vis appeals the application of § 2A1.1 and the sentence. We affirm. Davis was convicted of bei ng a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At sentencing the government put on evidence to support a theory Davis had acted in concert with an unknown person in a fatal shooting. The district court found by a preponderance of the evidence Davis possessed a firearm while participating in a homicide and thus applied the first-degree murder § 2A1.1 cross-reference. The district court calcu lated an offense leve l of 43 and a guidelines sentence of life. The district court sent enced Davis to the statutory maximum of 120 months of imprisonment. Davis appeals the application of the cro ss-reference and argues the district court violated Alleyne v. United States , 133 S.Ct. 2151 (2013), by applying the § 2A1.1 cross-reference without having a jury act as the fact-finder. This court reviews a district court's interpretation and application of the guidelines de novo . United States v. Hoffman , 707 F.3d 929, 935 (8th Cir. 2013). In Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), the Supreme Court held "other than the fact of a prior conviction, a ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In Alleyne , 133 S.Ct. at 2155, the Supreme Court extended Apprendi and held any fact which increases the mandatory minimum sentence to which a defendant is exposed is an "element" of the crime and must be submitted to the jury. Application of the § 2A1.1 cross-refere nce neither increases the penalty beyond the statutory maximum, see Apprendi , 530 U.S. at 490, nor increases the mandatory minimum, see Alleyne , 133 S.Ct. at 2155. Regarding whether a jury is required, -2-application of a statutory maximum or mi nimum are to be distinguished from "factfinding used to guide judicial discretion inselecting punishment within limits fixed by law. While such findings of facts may leadjudges to select sentences that are more severe than the ones they would have se lected without those facts, the Sixth Amendment does not govern the el ement of sentencing." Alleyne , 133 S.Ct. at 2161 n.2 (internal quotation marks and citations omitted). The di strict court did not err in conducting its own fact-finding for the purposes of the § 2A1.1 cross-reference and otherwise determining the guidelines range. Accordingly, we affirm the sentence.

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