US v. Malcolm Moore - Affirmation of Sentence

UNPUBLISHED UNITED STATES CO URT OF APPEALS FOR THE FOURTH C IRCUIT No. 23-4505 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MALCOLM MOORE, Defendant - Appella nt. Appeal from the United States Distric t Court for the Eastern Dis trict of North Carolina, at Raleigh. Richard E. M yers, II, Chief Distr ict Judge. (5:22- cr -001 98-M-RJ-1) Submitted: January 20, 2026 Decided: March 2, 2026 Before HEYTENS and BERNER, Circui t Judges, and TRAXLE R, Senior Circuit Judge. Affirmed by unpublish ed per curiam opini on. ON BRIEF: Rudolph A. Ashton, III, DUNN PITTMAN SKINNER & ASHTON, PLLC, New Bern, North Carolina, for Appellan t. Daniel P. Bubar, Acting Un ited States Attorney, David A. Bragdon, A ssistant United States Attorney, Katheri ne S. Englander, Ass istant United States Attor ney, OF FICE OF THE UNITED STA TES ATTORNE Y, Raleigh, North Carolina, for Ap pellee. Unpublished opinions are not binding prec edent in this circuit.

2 PER CURIAM: Malcolm Moore pled guilty to being a felon i n possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Because Moore ha d previously been convicted of assa ult with a deadly weapon with intent to kill inflictin g serious injury (“A WDWIKISI”), in violation of N.C. Gen. Stat. § 14- 32(a) (LexisNe xis 2025), the distric t court concluded he had committed the instant offense after sustai ning one felony convic tion for a crime of violence. Thus, the district court enh anced Moore’s base offense level under U.S. Sentencing Guidelines Manual § 2K 2.1(a)(4)(A) (2021). The district court also applied a four- level enhancemen t under USSG § 2K2.1 (b)(6)(B) after concluding Moore possesse d the firearm in connec tion with anot her felony offense. Finally, the district court granted the G overnment’s motion for an upward departure pursuant to USSG § 4A1.3, p.s., raising Moore’s criminal history category from II to I II. The district court established an advisory Sentencing Guidelines range of 46 to 57 mont hs’ imprisonment and sentenced Moore to 57 months’ imprison ment. On appeal, M oore challenges eac h of those district court decisions. We affirm hi s sentence. We review de novo wh ether a convictio n qualifies as a crime of vi olence under the Guidelines. United States v. Rice, 36 F.4th 578, 581 n.3 (4th Cir. 2022); see U SSG § 4B1.2(a)(1) (defining crime of violence). T o determine whether a n offense constitutes a crime of violence, we use the categorical approach. United State s v. Ortiz -Or ellana, 90 F.4th 689, 701 (4th Cir. 2024), cert. denied, 145 S. Ct. 1890 (2025). The categorical approach “ask [s] whether the most innocent conduct that the law c riminalizes requires proof of the use, attem pted use, or threat ened use of f orce sufficient to satisfy th e [force]

3 clause.” United States v. Roof, 10 F.4th 314, 398 (4th Cir. 2021) (citation modified). “One of the elements that a predicate crime must match is the mens rea element of a crime of violence,” which “req uire[s] proof of a mens rea more culpable th an recklessness an d negligence.” Rice, 36 F.4th at 580. The relevant statute provides that “[a]n y person who assaults an other person with a deadly weapon with intent to kill and inflicts serious injury shall be p unished as a Clas s C felon.” N.C. Gen. Stat. § 14 -32(a). And we ha ve recognized that “[t]he Supreme Court of North Carolina has inte rpreted the statute to include the following ele ments: 1) an assault, 2) with a deadly weapo n, 3) an intent to kill, and 4) inf licting a seriou s injury not resulting in death.” United States v. T ownsend, 886 F.3d 441, 445 (4th Cir. 2018) (citing State v. Grigsby, 526 S.E.2d 460, 462 (N.C. 2000)). * Thus, w e held th at North Carolina A WDWIKISI qualified as a violent felony under the Ar med Career Criminal Act (ACCA), 18 U.S.C. § 924(e). 88 6 F.3d at 445 (“W e c onclude that A WDWIKISI is categorically a violent felony under th e force clause of the ACCA beca use the intent to kill el ement of A WDWIKISI requires proof of a specific inte nt to kill.” (citation modified)); s ee United States v. King, 673 F.3d 274, 279 n.3 (4th Cir. 2012) (“W e rely on p recedents evaluating whether an offense con stitutes a ‘crime of violence’ under the Guidelines interc hangeably * Moore urge s us to rev isit Townsend con sidering the Supr eme Court’s decisi on in Borden v. United States, 593 U.S. 420 (2021). But Borden does no t call into ques tion o ur decision in Townsend. Cf. Taylor v. Grub bs, 930 F.3d 611, 619 (4th C ir. 2019) (intervening Supreme Court authori ty must “directly contr adict[] our prior holding,” and circuit la w is not overturned when “Supreme Court opinion[s] and our p recedent can be read harmoniously.”).

4 with precedents evaluating whether an o ffense constitutes a ‘violent felony’ under t he ACCA . . . . ”). Therefore, the district court correctly ruled t hat Moore com mitted the instant offense after sustaining one felony conviction of a crime of violence. As to the district c ou rt’ s other rulings, rathe r than evaluating whet her the district court here erred by applying the enh ancement and upward departure, we “proceed directly to an assumed error harmlessness inquiry.” United States v. Gomez - Ji menez, 750 F.3d 370, 382 (4th Cir. 2014) (cit ation modified). We “may assum e that a sentencing error occurred and proceed to e xamine whether the err or af fected the s entence impose d.” United States v. McDonald, 850 F.3d 6 40, 643 (4th Cir. 2017). Under this inquiry, a Guidelines error is harmless and does no t warrant vacating the defendant’ s sentence if the record shows tha t (1) the distri ct court would have reached the same result even if it had decided the Guide lines issue the other way, a nd (2) the sentence would be [substantivel y] reasonable eve n if the Guidelines is sue had been decide d in the defendant’ s fa vor. United States v. Mills, 9 17 F.3d 324, 330 (4th Cir. 2019) (citation modi fied). Any error will be deemed harmless if we are confident that these requirements ar e satisfied. Unite d States v. Gomez, 6 90 F.3d 194, 203 (4th Cir. 2 012). Applying the assum ed error har mlessness inq uiry here, we concl ude that the fir st prong of the inquiry is satisfied. The district court explicitly stated that, even if it had erroneously applied th e enhancement or gra nted the u pward departure, it n onetheless believed an upward variance sentenc e of 57 months ’ im prisonment was appropriate. See Gomez-Jimenez, 750 F.3d at 383 (holding first inquiry met where “district court ... expressly stated in a separate and par ticular explanation that it would have reach ed the same result”).

5 T urning to the s econd prong, “ we rev iew all se ntences — whether insid e, just outside, or significantly outsid e the Guidelines range — under a defere ntial abuse -of- discretion standard.” United States v. Smith, 134 F. 4th 248, 256 (4th Cir. 202 5) (citation modified). When considering the substantive reasonable ness of a sentence, “we examine the totality of the circumstances to see whether the sentencing court abused its dis cretion in concluding that the sentence it chos e satisfied the stan dards set forth in [18 U.S.C.] § 3553(a).” United States v. Davis, 130 F. 4th 11 4, 127 (4th Cir. 202 5) (citation modifi ed). Had the district court applied neither the enhancemen t nor the departure, the Guidelines range woul d have been 27 to 33 months’ imprisonment. In d etermining whether M oore’ s 57- month s enten ce is substantively reasonable, we “consider [] w hether the sentencing court acted reasona bly both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” United States v. Dominguez, 1 28 F.4th 226, 237 (4th Cir. 2025) (citation modified). “And when re viewing an upward variance, [we] . .. must ultimately give due deferenc e to the district court’ s decision that the § 3553(a) factors, on a whole, justify the exte nt of the varian ce.” Id. at 237 - 38 (citation modified). At the sente nc ing hearing, t he district cou rt indicated that t he sentence was warranted considerin g Moore’s background, a s well as the facts and circumstance s of the case. Our re view of the record confir ms that the district court su bstantially discussed the circumstances rela ting to Moore’s offense when considering wh ether to apply USSG § 2K2.1(b)(6)(B) and USSG § 4A1.3, p.s. Before imposing the sent ence, the district court acknowledged Moo re’s difficult childhoo d, character letter s, and positive employme nt

6 potential. How ever, the court also noted Moore ’s extensive criminal history, which included multiple convictions for violent crimes involving fir earms, and Moore’s consistent pattern of discharging firearms at o thers. Based on t he factors identified by the district court, we are sa tisfied that Moore ’s 57-month sentence i s substantively reasonab le and, consequently, that if there was any misca lculation of the Guideli nes range, any error is harmless. Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the f acts and legal co ntentions are adequately presented in the mater ials before this court and ar gument would not aid the decisional proces s. AFFIRMED