PER CURIAM.
Larry Davis was convicted of being a felon in possession of a firearm. At sentencing, the district court
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, 570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 120 S.Ct. 2348, nor increases the mandatory minimum, see Alleyne, 133 S.Ct. at 2155. Regarding whether a jury is required, application of a statutory maximum or minimum are to be distinguished from "factfinding used to guide judicial
Accordingly, we affirm the sentence.