US v. Malik Moore

Filing 920081231

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4000

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MALIK MONTREASE MOORE, Defendant - Appellant.

______________ No. 07-5031 ______________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MALIK MONTREASE MOORE, Defendant - Appellant.

Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:05-cr-00235-RLV-DCK-3)

Submitted:

November 25, 2008

Decided:

December 31, 2008

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew B. Banzhoff, DEVEREUX & BANZHOFF, P.L.L.C., Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Following a jury trial, Malik Montrease Moore was

convicted of one count of conspiracy to possess with intent to distribute at least fifty grams or more of a mixture or

substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 846 (2006), for a drug distribution conspiracy existing between 1987 and 2005 in Caldwell County, North Carolina. Because Moore had two prior felony convictions,

the district court sentenced him to the enhanced sentence of life in prison. Moore timely appealed.

On appeal, Moore argues that the district court: (1) erred in denying his motion for judgment of acquittal because the Government failed to sufficiently prove that he conspired to distribute cocaine base; (2) engaged in improper judicial

factfinding, in violation of his Sixth Amendment rights; and (3) erred in using prior convictions to enhance his sentence.

Finding no error, we affirm. We review de novo a district court's denial of a Fed. R. Crim. P. 29 judgment of acquittal. 430 F.3d 681, 693 (4th Cir. 2005). United States v. Alerre,

In conducting such a review,

we are obligated to sustain a guilty verdict if, viewing the evidence in the light most favorable to the prosecution, the verdict is supported by "substantial evidence." United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) 3

(citing

Glasser

v.

United

States,

315

U.S.

60,

80

(1942)).

Whether there is a single conspiracy or multiple conspiracies, and whether there was an agreement to participate in the

conspiracy, are questions of fact for the jury, and we must affirm its finding "unless the evidence, taken in the light most favorable to the government, would not allow a reasonable jury so to find." United States v. Harris, 39 F.3d 1262, 1267 (4th

Cir. 1994) (internal quotation marks and citation omitted); see Glasser, 315 U.S. at 80. evidence, this court does In evaluating the sufficiency of the not review the credibility of the

witnesses and assumes that the jury resolved all contradictions in the testimony in favor of the Government. Brooks, 524 F.3d 549, 563 (4th Cir. 2008). testimony of one witness or accomplice may United States v. The uncorroborated be sufficient to

sustain a conviction. 1190 (4th Cir. 1997). insufficiency clear." grounds

United States v. Wilson, 115 F.3d 1185, This court "can reverse a conviction on only when the prosecution's failure is

United States v. Moye, 454 F.3d 390, 394 (4th Cir.

2006) (en banc) (internal quotation marks and citation omitted). "To government prove a conspiracy (1) an under 21 U.S.C. § 846, or the more

must

prove

agreement

between

two

persons to engage in conduct that violates a federal drug law, (2) the defendant's knowledge of the conspiracy, and (3) the defendant's knowing and voluntary 4 participation in the

conspiracy."

United States v. Strickland, 245 F.3d 368, 384-85 A defendant may be the conspiracy's

(4th Cir. 2001); see Burgos, 94 F.3d at 857. convicted of conspiracy without knowing all

details, its full scope, or all of its members, and without taking part in all of its activities over its entire existence. United States v. Nunez, 432 F.3d 573, 578 (4th Cir. 2005). He

need only enter the conspiracy understanding its unlawful nature and willfully join in the plan on at least one occasion.

Burgos, 94 F.3d at 858; see United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). The existence of an unspoken or

mutual understanding between conspirators is adequate evidence of a conspiratorial agreement. F.3d 378, 390 (4th Cir. 2005). United States v. Cardwell, 433 There is often little direct Burgos, 94 F.3d at

evidence of the conspirators' agreement. 857.

The government need not prove a conspiracy's identifiable

organizational structure. "A single conspiracy exists where there is one overall agreement or one general business venture." 578 (internal quotation marks and Nunez, 432 F.3d at omitted). The

citation

existence of a single conspiracy "depends upon the overlap of main actors, methods, and goals." sufficient to establish a Id. "[T]rial evidence is conspiracy where the

single

conspirators are shown to share the same objectives, the same

5

methods, the same geographic spread, and the same results." United States v. Smith, 451 F.3d 209, 218 (4th Cir. 2006).

See

Here, Moore and his coconspirators were shown to have shared the same objectives and methods: distributing crack

cocaine in Caldwell County for profit.

Witnesses explained that

Moore regularly purchased a vast quantity of drugs to supply to numerous individuals for resale. These were not isolated,

buyer-seller transactions. with Moore, pleaded guilty

Howell and Edmisten, coconspirators and then testified about their

involvement with Moore to distribute cocaine.

Other witnesses

testified as to specific details of Moore's involvement in drug distribution: cocaine and they to knew he from sold whom it. Moore Moore obtained also sold his crack to

whom

drugs

confidential informants working directly for police on more than one occasion. The totality of the evidence revealed large

quantities of crack cocaine regularly being purchased and sold among the same individuals, indicating the existence of a casual but common plan. Based upon the evidence, the jury was entitled

to conclude that the actions of Moore and his conspirators in the distribution of drugs amounted to a single conspiracy.

Therefore, the court properly denied Moore's motion for judgment of acquittal. Next, Moore argues that the district court violated his Sixth Amendment rights when 6 it engaged in impermissible

fact-finding and used prior convictions to enhance his sentence. In Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998), the Supreme Court held that, when seeking a sentencing

enhancement based on a prior conviction, the Government "need not allege a defendant's prior conviction in the indictment or information that alleges the elements of an underlying crime." The Court reaffirmed this holding when it held that, "[o]ther 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." Apprendi added). v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis

Moore concedes that we observed after Apprendi that

"the fact of a prior conviction remains a valid enhancement even when not found by the jury," United States v. Thompson, 421 F.3d 278, 282 (4th Cir. 2005) (internal quotation marks omitted), but argues that the overruling of Almendarez-Torres is imminent, and that using prior convictions to enhance a sentence is

constitutionally infirm. Despite remains Moore's and policy we arguments, Almendarez-Torres its continuing

authoritative,

have

reaffirmed

validity after Apprendi.

See Thompson, 421 F.3d at 282; United Moore's

States v. Cheek, 415 F.3d 349, 351-54 (4th Cir. 2005). argument lacks merit.

7

Moore also argues that the two prior convictions used to enhance his sentence were not "prior" to the instant

conspiracy conviction as they were merely separate convictions arising out of the same transaction, citing United States v. Blackwood, 913 F.2d 139, 145-46 (4th Cir. 1990). Moore contends

that because the drug conspiracy as alleged in the indictment began in 1987 and continued through 2005, his convictions on August 1, 2000, for the sale and delivery of cocaine, and on April 14, 2003, for the sale of cocaine, arose out of the same criminal sentence. Moore's concluded that argument a is misplaced. is We have of squarely a drug enterprise and could not be used to enhance his

"[w]hen

defendant

convicted

conspiracy under 21 U.S.C. § 846, prior drug felony convictions that fall within the conspiracy period may be used to enhance a defendant's sentence if the conspiracy continued after his

earlier convictions were final."

United States v. Smith, 451

F.3d 209, 224-25 (4th Cir. 2006); see 21 U.S.C. § 841(b)(1)(A) (outlining "final" penalties felony for § 846 violations may be and used stating to that

prior

convictions

enhance

sentence).

Because the conspiracy for which Moore was convicted

continued well beyond his 2000 and 2003 convictions for the sale of cocaine, we conclude these two convictions were properly

8

considered purposes.

"prior"

convictions

for

sentencing

enhancement

Accordingly, sentence. legal before

we

affirm

Moore's

conviction

and

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

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