US v. Monte Moore

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:12-cr-00104-AWA-LRL-1 Copies to all parties and the district court/agency. [999430200].. [13-4796]

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Appeal: 13-4796 Doc: 44 Filed: 09/05/2014 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4796 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MONTE MOORE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Arenda L. Wright Allen, District Judge. (4:12-cr-00104-AWA-LRL-1) Submitted: August 20, 2014 Before DUNCAN and Circuit Judge. KEENAN, Decided: Circuit Judges, September 5, 2014 and DAVIS, Senior Affirmed by unpublished per curiam opinion. Maureen Leigh White, Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, Kevin P. Lowell, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 13-4796 Doc: 44 Filed: 09/05/2014 Pg: 2 of 6 PER CURIAM: A federal jury convicted Monte Moore of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846 (2012); distribution of cocaine and cocaine base within 1000 feet of a playground, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 860(a) (2012); and possession with intent to distribute cocaine and cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(C). After determining that Moore was a career offender, the district court sentenced him to 262 months’ imprisonment concurrently. for each conviction, to be served Moore now appeals, challenging the sufficiency of the evidence supporting each conviction, the district court’s decision to admit certain testimony, and his sentencing as a career offender. For the reasons that follow, we affirm. Moore first argues that the evidence was insufficient to support review de acquittal. his conspiracy novo the denial and distribution of a motion convictions. for a We judgment of United States v. Hickman, 626 F.3d 756, 762 (4th Cir. 2010). A jury verdict must by sustained when “there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction.” United States v. Jaensch, 665 F.3d (internal quotation marks omitted). evidence that a reasonable finder 2 83, 93 (4th Cir. 2011) “Substantial evidence is of fact could accept as Appeal: 13-4796 Doc: 44 Filed: 09/05/2014 Pg: 3 of 6 adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (alteration and internal quotation marks omitted). Our review of the record persuades us that substantial evidence supports convictions. Moore’s conspiracy and distribution In order to convict Moore of this drug conspiracy, the evidence must have established an agreement between two or more people to distribute cocaine and cocaine base, that Moore had knowledge of the agreement, and that voluntarily participated in the scheme. he knowingly and See United States v. Hackley, 662 F.3d 671, 678 (4th Cir. 2011). A coconspirator testified that Moore agreed to provide him with cocaine whenever he needed it. this Over the course of four months, Moore provided coconspirator cocaine base at with regular substantial intervals amounts in of amounts further distribution by the coconspirator. cocaine and indicative of This evidence of a continuing relationship, repeated transactions, and substantial drug quantities is sufficient to support the conviction. See United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008). Moore’s distribution conviction requires proof of his knowing base. and intentional distribution of cocaine and cocaine United States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999). conduct. The Government presented ample evidence of the charged Moore thus is entitled to no relief on his challenge 3 Appeal: 13-4796 Doc: 44 Filed: 09/05/2014 Pg: 4 of 6 to the sufficiency of the evidence regarding the conspiracy and distribution convictions. Moore also seeks to challenge the sufficiency of the evidence supporting conviction. his However, possession Moore with intent this claim waived to distribute by failing to challenge the sufficiency of the evidence in either his oral or written Fed. R. Crim. P. 29 motions. See United States v. Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012). Moore next challenges the district court’s decision to admit testimony confidential controlled regarding informant purchase. the and conversation Moore’s Moore asserts between coconspirator that the a during a informant’s statements are inadmissible hearsay because the informant cannot be a coconspirator and the coconspirator’s statements were inadmissible because they were not made in furtherance of the conspiracy. “We review a trial court’s rulings on the admissibility of evidence for abuse of discretion, and . . . will only overturn an evidentiary ruling that is arbitrary and irrational.” 2011) United States v. Cole, 631 F.3d 146, 153 (4th Cir. (internal quotation marks omitted). Hearsay is a statement not made by the declarant “while testifying at the current trial or hearing and offered in evidence to prove the truth of the matter asserted in the statement.” 4 Fed. R. Evid. Appeal: 13-4796 Doc: 44 Filed: 09/05/2014 801(c)(1)-(2). Pg: 5 of 6 While hearsay is generally inadmissible, Fed. R. Evid. 802, a statement by a coconspirator is not hearsay if it was made “during the course and in furtherance of the conspiracy and is offered against the party.” United States v. Graham, 711 F.3d 445, 453 (4th Cir.) (internal quotation marks and citation omitted), cert. denied, 134 S. Ct. 449 (2013); see also Fed. R. Evid. 801(d)(2)(E). “A statement by a co-conspirator is made in furtherance of a conspiracy if it was intended to promote the conspiracy’s objectives, whether or not it actually has that effect.” Graham, 711 F.3d at 453 (internal quotation marks omitted). A statement may be “in furtherance of the conspiracy even though it is susceptible of alternative interpretations and was not exclusively, conspiracy, so concluding that it United States v. even as long or there was primarily, is designed Shores, 33 some to F.3d made further reasonable further 438, to 444 the the basis for conspiracy.” (4th Cir. 1994) (internal quotation marks omitted). We question conclude were made that in the coconspirator furtherance distribute cocaine and cocaine base. after the transaction. confidential While informant the of the statements in conspiracy to The statements were made had informant’s initiated statements the were drug not admissible under this exception, United States v. Hackley, 662 5 Appeal: 13-4796 Doc: 44 Filed: 09/05/2014 Pg: 6 of 6 F.3d 671, 679 (4th Cir. 2011), they were offered to provide necessary context to the coconspirator’s statements Moore, not for the truth of the matter asserted. find no error in the district court’s regarding We therefore admission of this testimony. Finally, Moore asserts that he was improperly designated a career offender because his prior convictions were not submitted to the jury and proved beyond a reasonable doubt. As Moore concedes, this argument is foreclosed by the Supreme Court’s decisions in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998), and Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013). Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before this Court and argument will not aid the decisional process. AFFIRMED 6

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