                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 look-

back 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
          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




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