US v. Monte Moore
Filing
UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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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.
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801(c)(1)-(2).
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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
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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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