United States v. Rondell Moore

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, DUANE BENTON and BOBBY E. SHEPHERD (UNPUBLISHED) [3925563] [11-2680]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2680
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United States of America,
Appellee,
v.
Rondell Moore,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Nebraska.
*
* [UNPUBLISHED]
*
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Submitted: May 14, 2012
Filed: June 26, 2012
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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Rondell Moore pled guilty to possession with intent to distribute 50 grams or
more of cocaine base, in violation of 21 U.S.C. § 841. The offense called for a
mandatory minimum of 10 years imprisonment, but Moore qualified for the “safety
valve” exception to the statutory minimum. The district court1 calculated Moore’s
Sentencing Guidelines range at 135 to 168 months imprisonment and imposed a

1

The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.

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sentence of 120 months imprisonment. Moore appeals, arguing that his sentence is
substantively unreasonable. We affirm.
I.
On April 15, 2010, Omaha police officers responded to a 911 call reporting a
shooting. The report stated that the shooting involved a tan-colored van, and the
officers spotted a vehicle matching this description parked with its lights off and its
engine running near the scene of the shooting. The officers approached the van on
foot and asked Rondell Moore, who was seated in the driver’s seat, to exit the vehicle.
As Moore complied with the officers’ request, an ounce of crack cocaine dropped to
the ground at Moore’s feet. Moore was immediately taken into custody and found to
be in possession of 83.3 grams of crack cocaine.
Moore was subsequently charged with one count of possession with intent to
distribute 50 grams or more of cocaine base under 21 U.S.C. § 841(a)(1). Moore’s
motion to suppress both the statements he made to the police and the evidence
recovered during his arrest was denied, and he eventually pled guilty without a plea
agreement. The Probation Office prepared a presentence investigation report (PSR)
that held Moore responsible for 24 kilograms of crack cocaine based on Moore’s
post-arrest statements to law enforcement officers. Under United States Sentencing
Commission, Guidelines Manual, §2D1.1(a)(5) and (c)(1), an offense involving
possession with intent to distribute 8.4 kilograms of cocaine base or more carries a
base offense level of 38. The PSR also took into account Moore’s acceptance of
responsibility under Guidelines section 3E1.1 and recommended that Moore’s offense
level be adjusted to 35.
Under 21 U.S.C. § 841(b)(1)(A), the amount of crack cocaine involved in
Moore’s offense usually triggers a mandatory minimum sentence of ten years
imprisonment. However, at sentencing, the district court recognized that Moore
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qualified for “safety valve” relief pursuant to 18 U.S.C. § 3553(f).2 Moore’s
qualification for safety valve relief had the two-part effect of removing the statutory
minimum of ten years, see 18 U.S.C. § 3553(f), and earning Moore an additional twolevel reduction to his Guidelines offense level under Guidelines sections 5C1.2(a) and
2D1.1(b)(16). The district court therefore lowered Moore’s adjusted offense level to
33. Based on the offense level and Moore’s placement in Criminal History Category
I, Moore’s advisory Guidelines range was 135 to 168 months imprisonment. The
Government asked the district court to sentence Moore within the Guidelines range.
Moore requested a downward variance to a sentence within the range of five to seven
years. Ultimately, the court found that a sentence of ten years was appropriate under
the circumstances, noting that it wished to impose “what would otherwise be the
statutory minimum” had Moore not qualified for safety valve relief. This timely
appeal followed.
II.
On appeal, Moore argues that his sentence of 120 months imprisonment is
greater than necessary to fulfill the sentencing goals of 18 U.S.C. § 3553(a) and is
therefore substantively unreasonable. “The substantive reasonableness of a district
court’s sentence is reviewed under an abuse of discretion standard.” United States
v. Garcia, 675 F.3d 1091, 1095 (8th Cir. 2012). “The district court abuses its
discretion if it fails to consider a relevant factor that should have received significant

2

The safety valve provision states that “the court shall impose a sentence
pursuant to the guidelines . . . without regard to any statutory minimum sentence, if
the court finds at sentencing” that: (1) the defendant has no more than one criminal
history point; (2) the offense did not involve violence or a dangerous weapon; (3) the
offense did not result in death or serious bodily injury; (4) the defendant was not an
organizer or supervisor and was not engaged in a continuing criminal enterprise; and
(5) the defendant provided truthful information and evidence regarding the offense.
18 U.S.C. § 3553(f).
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weight, gives significant weight to an improper or irrelevant factor, or considers only
the appropriate factors but commits a clear error of judgment in weighing those
factors.” United States v. Boss, 493 F.3d 986, 987 (8th Cir. 2007).
Moore argues primarily that the district court committed clear errors of
judgment in weighing the different section 3553(a) sentencing factors. In particular,
Moore asserts that: (1) his particular drug offense was “among the least serious” of
those that originally concerned Congress because it did not involve weapons or
violence; (2) he lacks any significant criminal history as this is his first felony
conviction; (3) he is a family man with a wife and three young children who has
demonstrated a willingness to lead a law-abiding life; (4) studies conducted by the
Sentencing Commission confirm that individuals in criminal history category I, such
as Moore, have the lowest rate of recidivism; (5) a more incremental sentence would
best serve the sentencing goals; and (6) his sentence for selling crack cocaine
represents an unwarranted disparity from what his sentence would have been for
selling powder cocaine. Moore contends that the court clearly erred by not according
greater weight to these mitigating factors. Moore argues that the existence of these
factors renders a sentence of 120 months unreasonable and that his requested
sentence of five to seven years would be more appropriate.
We have held that “[t]he district court has wide latitude to weigh the § 3553(a)
factors in each case and assign some factors greater weight than others in determining
an appropriate sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir.
2009). “The district court may give some factors less weight than a defendant prefers
or more to other factors but that alone does not justify reversal.” United States v.
Anderson, 618 F.3d 873, 883 (8th Cir. 2010), cert. denied, 131 S. Ct. 1550 (2011).
Here, based on our review of the record, we find that the district court relied primarily
on the nature of Moore’s offense and the need for Moore’s sentence to reflect the
seriousness of his offense pursuant to section 3553(a)(1) and (2). Moreover, the
district court actually varied below Moore’s advisory Guidelines range by sentencing
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him to 120 months imprisonment, and “[w]here a district court has sentenced a
defendant below the advisory guidelines range, it is nearly inconceivable that the
court abused its discretion.” United States v. Diaz-Pellegaud, 666 F.3d 492, 504 (8th
Cir. 2012) (citations and quotation marks omitted). Indeed, the district court stated
in its written statement of reasons for the sentence that it was varying downward
“[d]ue to [Moore’s] limited criminal history, his family commitments, and his albeit
limited assistance to the government.” This indicates that the court considered
several of the mitigating factors cited by Moore. Accordingly, we find no clear error
in the court’s weighing of the section 3553(a) factors and no abuse of discretion in
its decision to sentence Moore to 120 months imprisonment.
III.
We affirm the sentence imposed by the district court.
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