UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4189

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

MICHAEL L. MOORE, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Henry E. Hudson, District 

Judge. (3:08-cr-00389-HEH-1) 

Submitted: September 29, 2009 Decided: November 6, 2009 

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Michael S. Nachmanoff, Federal Public Defender, Frances H. 

Pratt, Assistant Federal Public Defender, Alexandria, Virginia, 

for Appellant. Dana J. Boente, United States Attorney, John D. 

Adams, Assistant United States Attorney, Richmond, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Michael L. Moore appeals his convictions, following a 

jury trial, on one count of possession of marijuana with intent 

to distribute, in violation of 21 U.S.C. § 841(a)(1) (2006) 

(“Count One”), and one count of possession of a firearm in 

furtherance of a drug trafficking offense, in violation of 18 

U.S.C. § 924(c) (2006) (“Count Three”),1 and the ensuing 360-

month sentence. Moore challenges the sufficiency of the 

Government’s evidence of his guilt and the district court’s 

decision to sentence him as a career offender. For the reasons 

that follow, we affirm. 

I. Sufficiency of the Evidence

 In order to establish a violation of 21 U.S.C. 

§ 841(a)(1), the Government must prove beyond a reasonable doubt 

that the defendant: (1) knowingly; (2) possessed the controlled 

substance; (3) with the intent to distribute it. United 

States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999). Moore 

asserts the Government failed to meet its burden of proof on the 

third element. 

 1

 Moore was also convicted of being a felon in possession of 

a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006), but 

raises no argument pertinent to this count. 

2 
 To establish this element, the Government called DEA 

Task Force Agent Phil Johnakin, who testified as an expert on 

the pricing, packaging, and distribution of marijuana in 

Virginia. According to Johnakin, marijuana is “typically 

packaged in plastic bag corners, for smaller amounts, which are 

knotted . . . and cut.” The drugs seized from Moore were 

packaged in this manner, and each baggie contained between 1.5 

and 2 grams of marijuana. Johnakin opined that each baggie 

would sell for approximately $20, which was consistent with the 

$265 in five, ten, and twenty dollar bills found on Moore. 

Finally, Johnakin testified that drug dealers frequently carry 

firearms to protect themselves, their drugs, and their money. 

Officer Frye, one of the police officers on the scene of Moore’s 

arrest, testified that Moore removed a firearm from his 

waistband and threw it into a nearby bush prior to being 

apprehended. 

 Johnakin expressed his expert opinion that, “based on 

everything, . . . [Moore’s possession of marijuana was] 

inconsistent with personal use, and more consistent with 

possession with the intent to distribute.” Johnakin elaborated, 

noting his opinion was “[b]ased on the manner [in] which the 

drugs were packed, based on the amount of currency – or the 

manner of the currency, the 10s and 20s and 5s, as well as the 

firearm being in close proximity to all the above.” 

3 
 Taken in the light most favorable to the Government, 

Evans v. United States, 504 U.S. 255, 257 (1992), this evidence 

was more than sufficient to satisfy the Government’s burden and 

to permit a reasonable trier of fact to find Moore guilty of 

Count One. 

 Moore next challenges the sufficiency of the 

Government’s evidence on Count Three, particularly that he 

possessed the firearm in furtherance of the drug trafficking 

offense. 

 “[T]o prove the § 924(c) violation, the government was 

required to present evidence indicating that the possession of a 

firearm furthered, advanced, or helped forward a drug 

trafficking crime. However, whether the firearm served such a 

purpose is ultimately a factual question.” United States v. 

Perry, 560 F.3d 246, 254 (4th Cir. 2009) (internal quotation 

marks and citation omitted), petition for cert. filed, ___ 

U.S.L.W. ___ (U.S. June 19, 2009) (No. 08-11019). In reaching 

this determination, the jury may consider: 

[T]he type of drug activity that is being conducted, 

accessibility of the firearm, the type of weapon, 

whether the weapon is stolen, the status of the 

possession (legitimate or illegal), whether the gun is 

loaded, proximity to drugs or drug profits, and the 

time and circumstances under which the gun is found. 

United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) 

(internal quotation marks and citations omitted). 

4 
 In light of the Lomax factors, the Government’s evidence 

that Moore’s possession of a firearm was in furtherance of his 

drug activity was substantial. According to Frye’s testimony, 

Moore was carrying the firearm in the waistband of his pants, 

rendering it accessible and in close proximity to the marijuana 

and money found in his pants pockets. Moreover, Moore possessed 

the gun contemporaneously with his marijuana possession. Trial 

testimony further established that the firearm was loaded, with 

one bullet in its chamber. Because the facts amply satisfy the 

Lomax factors, we affirm the conviction on Count Three. 

II. Career Offender Designation

 Moore also argues the district court erred as a matter 

of fact and law in finding that his parole on two prior drug 

convictions was revoked such that both convictions counted 

toward the career offender designation. 

A. Standard of Review

 This court reviews a sentence for reasonableness, 

applying an abuse of discretion standard. Gall v. United 

States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also

United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009), 

petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 24, 2009) 

(No. 09-5584). In so doing, we first examine the sentence for 

“significant procedural error,” including “failing to calculate 

5 
(or improperly calculating) the Guidelines range.” Gall, 128 S. 

Ct. at 597. In reviewing the district court’s application of 

the Sentencing Guidelines, this court reviews findings of fact 

for clear error and questions of law de novo. Layton, 564 F.3d 

at 334. 

B. Factual Basis for Enhancement and Guidelines Application

 On April 5, 1990, Moore was sentenced in Virginia 

state court for possession with intent to distribute cocaine 

(“possession conviction”) and conspiracy to distribute cocaine 

(“conspiracy conviction”). The pre-sentence report (“PSR”) 

established that, with regard to the possession conviction, 

Moore was released on discretionary parole on March 25, 1992, 

but his parole was revoked on June 6, 1994. He was again 

paroled on January 16, 1997. Regarding the conspiracy 

conviction, the PSR noted that “the defendant’s parole 

adjustment is provided in the preceding narrative,” referring to 

the possession conviction. 

 To be sentenced as a career offender, the defendant 

must be at least eighteen at the time of the instant conviction, 

the offense must have been a crime of violence or a controlled 

substance offense, and the defendant must have two prior 

convictions for felony crimes of violence or controlled 

substance offenses. U.S. Sentencing Guidelines Manual (“USSG”) 

6 
§ 4B1.1(a) (2008); United States v. Poole, 531 F.3d 263, 265 n.1 

(4th Cir. 2008). Only the third element is in dispute here. 

 The date Moore was last incarcerated on his prior 

convictions controls whether those convictions count toward the 

career offender designation. USSG § 4B1.2 cmt. n.3; USSG 

§ 4A1.2(e)(1), (k)(2)(B)(i). Although Moore was originally 

sentenced in 1990, his parole was revoked on June 6, 1994, and 

he was incarcerated until January 16, 1997. Thus, because Moore 

was last released from incarceration in relation to the prior 

sentences within the fifteen-year look-back period, the 

probation officer concluded both convictions counted. 

C. Claim of Factual Error

 Moore first asserts the district court erred in 

concluding that he had two qualifying predicate convictions 

because the PSR did not conclusively establish whether the 

revocation went to one or both of the convictions, and the 

Government did not produce any evidence to prove this fact. 

 This argument lacks merit. The PSR enumerated both 

the possession and conspiracy convictions, detailed the parole 

adjustment imposed in the possession conviction, and made 

reference to that same adjustment in its discussion of the 

conspiracy conviction. Despite the Government’s clear intent to 

rely upon the parole revocation to reinvigorate Moore’s prior 

sentences such that they would be counted under USSG 

7 
§ 4A1.2(e)(1), (k)(2)(B)(i), Moore did nothing more than object 

in the district court; he did not provide any documentation to 

support his argument that parole was revoked as to only one of 

his prior convictions. 

 “If the district court relies on information in the 

[PSR] in making findings, the defendant bears the burden of 

establishing that the information . . . is incorrect; mere 

objections are insufficient.” Randall, 171 F.3d at 210-11; 

accord United States v. Terry, 916 F.2d 157, 162 (4th Cir. 

1990). Moore failed to satisfy this burden. Accordingly, the 

district court did not clearly err in finding Moore had two 

qualifying predicate convictions for controlled substance 

offenses. 

D. Claim of Legal Error

 Moore next argues the district court misapplied the 

relevant guidelines and committed legal error in concluding he 

qualified as a career offender. At the cornerstone of Moore’s 

argument is Application Note 11 to USSG § 4A1.2(k), which 

clarifies the method for tacking terms of incarceration imposed 

upon revocation of parole or probation to original sentences.2

 2

 This note directs that, when there is a single revocation 

of multiple sentences, the term of incarceration imposed upon 

revocation is added to the greater of the original terms of 

imprisonment, not to each term. USSG § 4A1.2 cmt. n.11. 

8 
 The Ninth Circuit has concluded that Application Note 

11 is not relevant to the issue raised by Moore. See United 

States v. Semsak, 336 F.3d 1123, 1127-28 (9th Cir. 2003). The 

probation officer in Semsak relied on the revocation solely to 

bring the defendant’s prior convictions within the fifteen-year 

window necessary to count them as prior sentences – not to 

satisfy the durational requirement to count them. Id. at 1128. 

Accordingly, the Ninth Circuit found that Application Note 11 

did not apply as it “addresses only the points assigned due to 

the length of sentences, not the recency of the sentences.” Id. 

The court thus rejected Semsak’s argument that Application Note 

11 established that points should be assigned to only one 

sentence, finding that, “[u]nder the plain meaning of USSG 

§ 4A1.2(e)(1) and § 4A1.1(k)(2)(a), both sentences fell within 

[the fifteen-year] period, and the district court correctly 

added three points for each conviction.” Id. 

 We find the Ninth Circuit’s reasoning persuasive. The 

probation officer here used the parole revocation proceeding to 

bring Moore’s prior convictions within the fifteen-year lookback period. There simply was no tacking of an additional term 

of incarceration on to an original sentence, and thus 

Application Note 11 was not applicable. Further, Moore cites no 

authority to support his position that a similar approach should 

be employed in this particular context. 

9 
10 

 For the foregoing reasons, we affirm Moore’s 

convictions and sentence. 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