USA v. Korwyn Moore

Filing

Per Curiam OPINION filed : Moore's sentence is AFFIRMED, decision not for publication. Danny J. Boggs, Circuit Judge; Richard Allen Griffin, Circuit Judge and Joseph M. Hood, U.S. District Judge.

Case: 14-3075

Document: 18-2

Filed: 12/03/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0897n.06
No. 14-3075

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Dec 03, 2014
DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KORWYN K. MOORE,
Defendant-Appellant.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO

BEFORE: BOGGS and GRIFFIN, Circuit Judges; HOOD, District Judge.

PER CURIAM. Korwyn K. Moore challenges his 57-month sentence as procedurally
unreasonable. For the reasons given below, we affirm Moore’s sentence.
Pursuant to a plea agreement, Moore pleaded guilty to possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(g)(1).

Moore’s presentence report set forth an advisory

guidelines range of 46 to 57 months of imprisonment based on a total offense level of 19 and a
criminal-history category of IV. Prior to sentencing, Moore filed a sentencing memorandum
requesting a below-guidelines sentence on the basis that his criminal-history category overrepresented the seriousness of his criminal history and that such a sentence would be sufficient,
but not greater than necessary, to satisfy the sentencing purposes set out in 18 U.S.C. § 3553(a).
The district court sentenced Moore to 57 months of imprisonment, followed by two years of
supervised release.


The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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Document: 18-2

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United States v. Moore

On appeal, Moore contends that the district court procedurally erred by failing to consider
the mitigating factors that he raised at sentencing.

When the district court asked at the

conclusion of the sentencing hearing if there were any procedural or substantive objections to
Moore’s sentence, defense counsel responded, “We would make objections on both grounds,
Your Honor, just to preserve the record.” (R. 25, Sentencing Tr. 17, Page ID # 109). See United
States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). Where, as here, “a party answers the
Bostic question in the affirmative, but at such a high degree of generality that the district court
has no opportunity to correct its purported error and the court of appeals has been deprived of a
more detailed record to review,” we review for plain error. United States v. Simmons, 587 F.3d
348, 358 (6th Cir. 2009). Moore must “show (1) error (2) that was obvious or clear, (3) that
affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of
the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)
(internal quotation marks omitted).
The district court “must consider all non-frivolous arguments in support of a lower
sentence.” United States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010). The district court is not,
however, required to “give the reasons for rejecting any and all arguments by the parties for
alternative sentences.”

Vonner, 516 F.3d at 387.

Ultimately, to impose a procedurally

reasonable sentence, “[t]he sentencing judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for exercising his own
legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
Moore contends that the district court failed to consider his father’s incarceration in a
federal prison and his upbringing in a bad neighborhood. Moore did not raise the argument that
he grew up in a bad neighborhood in his sentencing memorandum or in his statement during the
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sentencing hearing, though he did advert to coming from a “quintessential broken home” as a
result of his father’s incarceration. According to his presentence report, Moore “reported a
‘good’ upbringing.” (PSR 11). Moore did assert the lack of a male role model in his statement
at sentencing, which the district court expressly considered: “But I heard what you said on your
statement. And I think that you had a tough road [sic] to hoe.” (R. 25, Sentencing Tr. 14-15,
Page ID # 106-07).
Moore also asserts that the district court failed to consider the need for rehabilitation and
vocational training rather than a lengthy prison sentence. The district court considered this
argument and took a different view:
On balance, you know, in terms of paying dues, I think you need to pay your
dues. And the only way you are going to go forward productively is after you
have done the dues. If you come back and you stop drinking and you stop doing
guns. It will be up to you. You got some family support. I hope you get there.
(Id. at 15-16, Page ID # 107-08). The district court recommended Moore’s participation in the
500-hour substance-abuse-treatment program and ordered his participation in substance-abuse
and mental-health assessment and treatment upon his release.
Finally, Moore contends that the district court failed to consider that his criminal-history
category over-represented the seriousness of his criminal history. Moore asserted that eight of
his nine criminal-history points arose from a single incident of criminal conduct. That single
incident resulted in multiple convictions of crimes of violence involving a firearm.

In

concluding that a within-guidelines sentence was appropriate, the district court considered
Moore’s criminal history as well as his pending murder charge:
The guidelines wherever you are on that range is presumed presumptively to be
[an] appropriate and fair sentence. Takes into consideration all of the factors.
When you look at the factors, the nature and circumstances of the offense, this

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firearm stuff with you is just a horrible combination, it exacerbates the problem
here.
Your record of what you have been doing with your life just flat out hustling with
guns and stuff, that doesn’t help either. The sentencing range is what it is. You
know people get sentenced at the top and the bottom.
The matter that is pending, you know, you are presumed not guilty. It is part of
your history and characteristics though. There is a pending charge.
(Id. at 15, Page ID # 107).
Moore has failed to demonstrate that the district court committed plain procedural error.
Accordingly, we AFFIRM Moore’s sentence.

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