United States Court of Appeals

For the Eighth Circuit

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No. 13-3028

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Larry Davis

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: April 16, 2014

 Filed: June 12, 2014 

[Published]

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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Larry Davis was convicted of being a felon in possession of a firearm. At

sentencing, the district court1

 imposed a sentence of 120 months of imprisonment after

1

The Honorable Brian C. Wimes, United States District Judge for the Western

District of Missouri.
applying the first-degree murder cross-reference from the United States Sentencing

Guidelines Manual ("U.S.S.G.") § 2A1.1. Davis appeals the application of § 2A1.1

and the sentence. We affirm.

Davis was convicted of being 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 calculated an offense level of 43 and a guidelines

sentence of life. The district court sentenced Davis to the statutory maximum of 120

months of imprisonment.

Davis appeals the application of the cross-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, any 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-reference 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,

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application of a statutory maximum or minimum are to be distinguished from "factfinding used to guide judicial discretion in selecting punishment within limits fixed

by law. While such findings of facts may lead judges to select sentences that are more

severe than the ones they would have selected without those facts, the Sixth

Amendment does not govern the element of sentencing." Alleyne, 133 S.Ct. at 2161

n.2 (internal quotation marks and citations omitted). The district 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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