United States v. Moore ( 2021 )

Appellate Case: 21-5048 Document: 010110622003 Date Filed: 12/21/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 21, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-5048
(D.C. No. 4:98-CR-00044-GKF-1)
MALCOLM EUGENE MOORE, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges.
_________________________________
Malcolm Moore, proceeding pro se,1 appeals the district court’s order granting
in part his motion for a reduced sentence under 18 U.S.C. § 3582(c)(1)(A)(i). For the
reasons explained below, we affirm.
In 1998, a jury convicted Moore of three counts of bank robbery with a
dangerous weapon, in violation of 18 U.S.C. § 2113(a) and (d), and three counts of
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R.
32.1(A).
1
We construe Moore’s pro se brief liberally, “but we do not act as his
advocate.” United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019).
Appellate Case: 21-5048 Document: 010110622003 Date Filed: 12/21/2021 Page: 2
using or carrying a firearm during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c). The district court sentenced him to 690 months in prison: three
concurrent 150-month terms for the three bank-robbery counts, a consecutive 60-
month term for the first § 924(c) count, and two additional consecutive 240-month
terms for the second and third § 924(c) counts.
In February 2021, Moore filed a motion for a reduced sentence under
§ 3582(c)(1)(A)(i), which provides in relevant part that a district court “may reduce
the term of imprisonment” if a defendant can show extraordinary and compelling
reasons. The statute further directs the district court to consider the sentencing factors
in 18 U.S.C § 3553(a) when deciding whether to grant such relief.2 As extraordinary
and compelling reasons, Moore primarily noted his age, health conditions, progress
toward rehabilitation, and—most critically—the extreme length of the two
consecutive 240-month sentences for his second and third § 924(c) convictions when
compared to the sentences he would face today for the same convictions. That is, at
the time of Moore’s conviction, § 924(c)(1)(C) mandated lengthy consecutive
sentences for subsequent § 924(c) convictions, “even if those convictions occurred at
the same time as a defendant’s first conviction under the statute.” United States v.
Maumau, 993 F.3d 821, 824 (10th Cir. 2021). But the First Step Act of 2018, Pub. L.
2
Section 3582(c)(1)(A) also provides that any sentence reduction be
“consistent with applicable policy statements issued by the Sentencing Commission.”
But as Moore argued below and as the district court agreed, there are currently no
applicable policy statements for defendant-filed motions for a reduced sentence. See
United States v. McGee, 992 F.3d 1035, 1048–50 (10th Cir. 2021).
2
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115-391, 132 Stat. 5194, amended § 924(c) to mandate a lengthy consecutive
sentence “for a second or subsequent conviction of § 924(c) . . . only if the
defendant’s first § 924(c) conviction is final at the time of the second or subsequent
§ 924(c) conviction.” Maumau, 993 F.3d at 824 (emphasis added). Thus, Moore
argued, if he were sentenced today, he would receive only consecutive 60-month
sentences for his second and third § 924(c) convictions. See § 924(c)(1)(A)(i) (setting
generally applicable 60-month mandatory minimum).
Additionally, Moore contended that relief was warranted under the sentencing
factors in § 3553(a), citing again his age and rehabilitation efforts. Overall, Moore
asked the district court to reduce the consecutive sentences for his second and third
§ 924(c) convictions from 240 months to 60 months, for “a total sentence of 330
months, leaving approximately four years left to serve.” R. vol. 1, 141.
The district court granted Moore’s motion in part. It concluded that Moore’s
age and health conditions did not constitute extraordinary and compelling
circumstances because although Moore is approximately 50 years old and has various
medical diagnoses, he is currently in “stable medical condition.” Id. at 145. But the
district court agreed that the “gross disparity between [Moore’s] sentence and the
sentence that a person would receive today for the same conduct,” as well as the
sentencing court’s lack of discretion on the § 924(c) portion of Moore’s sentence,
constituted extraordinary and compelling reasons warranting a sentence reduction.3
3
The district court, however, questioned Moore’s underlying assertion that, if
sentenced today, he would face 60-month sentences for both his second and third
3
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Id. at 145–46; see also Maumau, 993 F.3d at 837 (affirming § 3582(c)(1)(A)(i)
sentence reduction that was based in part on “‘incredible’ length of [defendant’s]
stacked mandatory sentences under § 924(c)[,] the First Step Act’s elimination of
sentence-stacking under § 924(c)[,] and the fact that [defendant], ‘if sentenced today,
. . . would not be subject to such a long term of imprisonment’” (omission in original)
(quoting App. 191)).
The district court then turned to the § 3553(a) factors, noting Moore’s
extensive criminal history, serious bank-robbery and firearm convictions, and
significant prison disciplinary record. Moreover, the district court noted that Moore
committed the bank robberies just six months after being released from state custody.
It concluded that “[a]lthough a reduction in sentence is justified, the serious nature of
the instant crimes and the history and characteristics of the defendant, to include his
poor institutional adjustment, demand substantial punishment.” R. vol. 1, 146–47.
The district court accordingly declined to grant the entire reduction that Moore
sought, from 690 months to 330 months. Instead, it reduced his sentence to 474
months: the original three 150-month concurrent sentences for bank robbery, the
original consecutive 60-month sentence for the first § 924(c) conviction, and reduced
consecutive sentences for the second and third § 924(c) convictions of 144 and 120
§ 924(c) convictions; on the contrary, it noted, one of those convictions likely carried
a mandatory minimum sentence of 84 months because Moore brandished a firearm.
Compare § 924(c)(1)(A)(i) (providing general 60-month mandatory minimum), with
§ 924(c)(1)(A)(ii) (providing 84-month mandatory minimum if firearm was
brandished).
4
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months. As a result of this reduction, we judicially notice that, according to the
Bureau of Prison’s publicly available records, Moore’s expected release date is now
January 5, 2033. See Fed. Bureau of Prisons, Inmate Locator,
https://www.bop.gov/inmateloc// (under “Find by Name,” enter “Malcolm Eugene
Moore”) (last visited Dec. 17, 2021); United States v. Muskett, 970 F.3d 1233, 1237
n.4 (10th Cir. 2020) (taking judicial notice of defendant’s release date), cert. denied
141 S. Ct. 1710 (2021).
Moore now appeals. We review the district court’s decision on a sentence-
reduction motion for abuse of discretion. United States v. Mannie, 971 F.3d 1145,
1155 (10th Cir. 2020).
Moore argues that the district court abused its discretion in concluding that the
§ 3553(a) factors did not warrant the full reduction he sought. Specifically, Moore
contends that the district court “failed to adequately consider . . . his post[]sentence
rehabilitation efforts” and erred in focusing on Moore’s disciplinary infractions
rather than on the fact that he has not had any recent infractions and has completed a
variety of Bureau of Prisons programming. Aplt. Br. 2. In support, he argues that
although he did not arrive in prison as a model inmate, “[r]eal rehabilitation takes
time.” Id. at 4. And he contends that his more recent prison record demonstrates such
rehabilitation.
But reweighing the district court’s balancing of the § 3553(a) factors “is
beyond the ambit of our review.” United States v. Lawless, 979 F.3d 849, 856 (10th
Cir. 2020). Indeed, “[b]ecause the weighing of the § 3553(a) factors is committed to
5
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the discretion of the district court, we cannot reverse ‘unless we have a definite and
firm conviction that the lower court made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.’” United States v. Hald, 8 F.4th
932, 949–50 (10th Cir. 2021) (quoting United States v. Chavez-Meza, 854 F.3d 655,
659 (10th Cir. 2017), aff’d, 138 S. Ct. 1959 (2018)). And here, we have no such
conviction. We see no error of judgment in the district court’s conclusion that
granting a greater reduction would result in a sentence that did not sufficiently
“reflect the seriousness of the offenses, promote respect for the law, protect the
public from further crimes, and afford adequate deterrence.” R. vol. 1, 147. Nor did
the district court abuse its discretion in emphasizing Moore’s criminal history, the
circumstances of his offenses, and Moore’s conduct during the first stretch of his
incarceration over the evidence of Moore’s more recent rehabilitation efforts.
Because the district court did not abuse its discretion in granting less of a
sentence reduction than Moore requested, we affirm.4
Entered for the Court
Nancy L. Moritz
Circuit Judge
4
Moore devotes a substantial portion of his brief to the argument that a district
court must consider the § 3553(a) factors when deciding whether to grant a sentence
reduction under a different subsection of the sentence-reduction statute,
§ 3582(c)(1)(B). Whatever the merits of that argument, it has no bearing on this case,
which involves a sentence reduction under § 3582(c)(1)(A), a subsection that
specifically directs the district court to consider the § 3553(a) factors, as the district
court did here.
6