                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-5099



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


AUBREY T. MOORE, III, a/k/a Tom,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:06-cr-00091-IMK-JSK-1)


Submitted:   July 7, 2008                 Decided:   July 17, 2008


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Joseph J. Harris, Morgantown, West Virginia, for Appellant. Sharon
L. Potter, United States Attorney, Zelda E. Wesley, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Aubrey Thomas Moore, III, pled guilty to distribution of

heroin.       The    district    court   sentenced   him   to   151   months

imprisonment.       On appeal, Moore argues that his prior conviction

for possession of the frame or receiver of a machine gun should not

count as a crime of violence and therefore the district court erred

in applying the career offender enhancement to his sentence.

Finding no error, we affirm Moore’s sentence.

           The career offender sentencing enhancement applies if:

“(1) the defendant was at least eighteen years old at the time the

defendant committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a crime of

violence or a controlled substance offense; and (3) the defendant

has at least two prior felony convictions of either a crime of

violence or a controlled substance offense.”               U.S. Sentencing

Guidelines Manual § 4B1.1(a) (2006).         Moore admits that he was at

least   eighteen     when   he   committed   the   underlying   offense   of

distribution of heroin, that this offense is a felony controlled

substance offense, and that he had one prior conviction for a

controlled substance offense.            He disputes whether his prior

conviction for possession of the frame or receiver of a machine gun

should count as a crime of violence.

           Moore concedes that the letter of the law provides that

it should count, but he asserts that, without aggravating factors,


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it should not be considered a per se crime of violence.   In support

of his argument, Moore relies on United States v. Johnson, 953 F.2d

110, 115 (4th Cir. 1991), in which we held that the offense of

possession of a firearm by a felon is not a per se “crime of

violence” under USSG § 4B1.2. The Johnson court explained that the

offense of felon in possession of a firearm was not classified as

a crime of violence unless the crime involved conduct that posed a

risk of physical injury to another.   Id. at 112.

          Possession of a frame or receiver of a machine gun,

however, is per se a crime of violence.   Application Note 1 of USSG

§ 4B1.2 provides that unlawful possession of a firearm described in

26 U.S.C. § 5845(a) (2000) is a crime of violence.   Section 5845(a)

includes a machine gun, which is defined as “any weapon which

shoots, is designed to shoot, or can be readily restored to shoot,

automatically more than one shot, without manual reloading, by a

single function of the trigger.   The term shall also include the

frame or receiver of any such weapon. . . .”   26 U.S.C. § 5845(b).

          Thus, Moore’s prior conviction for possession of the

frame or receiver of a machine gun--which is the equivalent of a

machine gun--is a crime of violence under Application Note 1 of

USSG § 4B1.2, because a machine gun is a firearm defined in § 5845.

We therefore conclude that the district court correctly determined

that Moore’s prior conviction for possession of a frame or receiver

of a machine gun was a crime of violence.


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          Accordingly, we find that the court correctly applied the

career offender enhancement, and we affirm Moore’s 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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