                  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 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 "fact-
finding 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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