US v. Michael Moore

Filing 920091106

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, One"), in and violation one of 21 U.S.C. § 841(a)(1) of a (2006) in

("Count

count

of

possession

firearm

furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (2006) ("Count Three"), 1 and the ensuing 360month sentence. Moore of challenges his guilt the and sufficiency the district of the

Government's

evidence

court's

decision to sentence him as a career offender. that follow, we affirm.

For the reasons

I. In order

Sufficiency of the Evidence to establish a violation of 21 U.S.C.

§ 841(a)(1), the Government must prove beyond a reasonable doubt that the defendant: substance; (3) with (1) knowingly; (2) possessed the controlled the intent to distribute it. United Moore

States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999).

asserts the Government failed to meet its burden of proof on the third element.

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.

1

2

To establish this element, the Government called DEA Task Force Agent Phil Johnakin, who testified as an expert on the pricing, packaging, to and distribution of marijuana is in

Virginia.

According

Johnakin,

marijuana

"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, waistband testified and that it Moore into a removed nearby a firearm prior from to his being

threw

bush

apprehended. Johnakin expressed his expert opinion that, "based on everything, inconsistent . . with . [Moore's possession and of marijuana consistent was] with

personal

use,

more

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 Government's next challenges on Count the Three, sufficiency particularly of that the he

evidence

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 United States v.

purpose is ultimately a factual question."

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). this determination, the jury may consider:

In reaching

[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 Trial

the gun contemporaneously with his marijuana possession.

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. This applying an court abuse Standard of Review reviews of a sentence for reasonableness, Gall v. United

discretion

standard.

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." Ct. at 597.

Gall, 128 S.

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. at 334. B. Factual Basis for Enhancement and Guidelines Application On April 5, 1990, Moore was sentenced in Virginia Layton, 564 F.3d

state court for possession with intent to distribute cocaine ("possession conviction") and conspiracy to distribute cocaine ("conspiracy established conviction"). that, with The to pre-sentence the report ("PSR")

regard

possession

conviction,

Moore was released on discretionary parole on March 25, 1992, but his parole on was revoked 16, on June 6, 1994. He the was again

paroled

January the PSR

1997. that

Regarding "the

conspiracy parole

conviction,

noted

defendant's

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 convictions offense, for and the defendant of must have or two prior

felony

crimes

violence

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). The Only the third element is in dispute here. Moore was last incarcerated on his prior

date

convictions controls whether those convictions count toward the career offender designation. (k)(2)(B)(i). USSG § 4B1.2 Moore cmt. was n.3; USSG

§ 4A1.2(e)(1),

Although

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. Moore concluding because that PSR first he Claim of Factual Error asserts two the district court erred in

had

qualifying

predicate establish

convictions whether and the the

the

did to

not or

conclusively both of the

revocation

went

one

convictions,

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 reference imposed to that in same the possession in conviction, its and of made the

adjustment

discussion

conspiracy conviction.

Despite the Government's clear intent to

rely upon the parole revocation to reinvigorate Moore's prior sentences such that they would 7 be counted under USSG

§ 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 the defendant bears the burden of

establishing objections accord 1990).

that

information . . . is Randall, 916 F.2d 171

incorrect; F.3d 162 at

mere

are

insufficient." States v. Terry,

210-11; Cir.

United

157,

(4th

Moore failed to satisfy this burden.

Accordingly, the

district court did not clearly err in finding Moore had two qualifying offenses. D. Claim of Legal Error predicate convictions for controlled substance

Moore next argues the district court misapplied the relevant guidelines and committed legal error in concluding he qualified as a career offender. argument is Application Note 11 At the cornerstone of Moore's 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

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.

2

8

The Ninth Circuit has concluded that Application Note 11 is not relevant to the issue raised by Moore. See United The

States v. Semsak, 336 F.3d 1123, 1127-28 (9th Cir. 2003).

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 plain to only of one USSG

sentence,

finding

that,

"[u]nder

the

meaning

§ 4A1.2(e)(1) and § 4A1.1(k)(2)(a), both sentences fell within [the fifteen-year] period, and the district Id. The court correctly

added three points for each conviction."

We find the Ninth Circuit's reasoning persuasive.

probation officer here used the parole revocation proceeding to bring Moore's prior convictions within the fifteen-year lookback period. of There simply was no tacking of an additional term on to an original sentence, and thus

incarceration

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 convictions

the and

foregoing We

reasons, dispense

we with

affirm oral

Moore's argument

sentence.

because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

10