United States v. Samuel Moore , 239 F. App'x 509 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 13, 2007
No. 07-10390 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00145-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 13, 2007)
Before BLACK, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Samuel Moore appeals his 120-month sentence for bank robbery imposed
upon resentencing. After review, we affirm.
I. BACKGROUND
Moore was indicted for committing bank robbery by use of a dangerous
weapon, in violation of 18 U.S.C. § 2113(a) and (d). Moore pled not guilty and
was found guilty by a jury. According to the Presentence Investigation Report
(“PSI”), Moore entered a bank, slid a bag to the teller and told her to “[f]ill the bag
with money. I’ve got a gun.” Moore then pulled his shirt up to display the grip of
an air gun. After obtaining the money and leaving the scene, Moore led police on a
high-speed chase.
The PSI assigned Moore five criminal history points for these prior
convictions: (1) one point for “theft by taking,” where Moore attempted to commit
armed robbery by entering a Winn-Dixie grocery store with what appeared to be a
handgun and demanding money and for which he received a sentence of 12
months’ probation; (2) three points for a “robbery by sudden snatch,” where he
obstructed law enforcement by backing his car into a police officer’s vehicle and
attempted to elude police; and (3) one point for a 1995 conviction for driving under
the influence (“DUI”). With two criminal history points for committing the instant
offense while on probation, the PSI assigned a criminal history category of IV.
With a total offense level of 27, the PSI recommended an advisory guidelines
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range of 100 to 125 months’ imprisonment.
At his initial sentencing, Moore objected to the inclusion of one point for the
1995 DUI conviction because he had not been represented by counsel. The district
court indicated that it would not consider the DUI conviction in computing
Moore’s criminal history score. This should have reduced Moore’s criminal
history category to III, resulting in an advisory guidelines range of 87 to 108
months’ imprisonment. However, the district court calculated an advisory
guidelines range of 100 to 125 months, which was consistent with a criminal
history category IV, and imposed a 120-month sentence.
In Moore’s first appeal, this Court concluded: (1) that the district court had
not properly calculated Moore’s criminal history category as IV, and (2) that it
could not determine whether, absent the calculation error, the district court would
have imposed the same sentence. This Court vacated Moore’s sentence and
remanded with instructions for the district court to clarify its ruling on Moore’s
objection to the DUI point in his criminal history score and whether it intended for
Moore’s sentence to fall within the applicable advisory guidelines range or to
constitute a variance from the advisory guidelines range.
On remand, the district court confirmed that it had sustained Moore’s
objection to the DUI conviction. The district court clarified that it was making an
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upward departure in Moore’s criminal history category based on the fact that the
seriousness of Moore’s criminal history was not adequately represented, as
follows:
[W]hen I look at some of the underlying convictions, theft by
taking in a Winn-Dixie store where he only got one point, we go with
the prior sentence given by a previous judge as a rough proxy of the
seriousness of the crime. When I look at this, I think that’s not a good
proxy, that was more serious than a one-point offense and it should
have been a two or a three, that in my mind, it’s more serious.
And, likewise, the other snatching incident was, I think, more –
well, it got three points but it was a serious sort of incident . . . . It
really wouldn’t be a variance, it would be what I would have done
before Booker: I would have gone down one point for the DUI and
then I would have departed back up the same point for the seriousness
of his conviction with the Winn-Dixie and the seriousness with the
snatching at least one or two points. That gets him back to the same
place he was, so I view it as an upward departure based on the
inadequacy of [the] criminal history.
The district court also noted the violence running throughout Moore’s offenses and
the similarities between Moore’s prior Winn-Dixie theft conviction and the instant
bank robbery, as follows:
[T]his is a man who this is his second violent sort of robbery. It
may have been an air gun but there was a gun involved, he had
another robbery at a Winn-Dixie store, he had a snatching incident
and then he also banged into another policeman’s car. That’s too
many acts of violence for me to impose a sentence less than the
sentence I imposed.
The district court indicated that, if an upward departure under the guidelines had
been unavailable, it would have imposed the same sentence as a post-Booker
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variance from the advisory guidelines range. The district court reimposed the 120-
month sentence. Moore filed this appeal.
II. DISCUSSION
Moore argues that the district court erred in imposing an upward departure
in his criminal history category.
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district
court must consult and correctly calculate the defendant’s range under the
Sentencing Guidelines and then impose a reasonable sentence considering the
factors in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005). Although Booker has rendered the guidelines range advisory, the
correct application of the individual guideline provisions is obligatory. United
States v. Brehm, 442 F.3d 1291, 1300 (11th Cir.), cert. denied, ___ U.S. ___,127 S.
Ct. 457 (2006).1
Under U.S.S.G. § 4A1.3, the district court may depart upwards in the
criminal history category if “reliable information indicates that the defendant’s
criminal history category substantially under-represents the seriousness of the
1
Post-Booker, we review a sentence for reasonableness. United States v. Hunt, 459 F.3d
1180, 1182 (11th Cir. 2006). A sentence can be procedurally or substantively unreasonable. A
sentence is procedurally unreasonable if “it is the product of a procedure that does not follow
Booker’s requirements, regardless of the actual sentence,” such as a failure to apply the
guideline provisions correctly. Id. at 1185 n.3. Moore raises only a claim of procedural
unreasonableness.
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defendant’s criminal history or the likelihood that the defendant will commit other
crimes . . . .” U.S.S.G. § 4A1.3(a)(1). “[A]n upward departure may be appropriate
where the defendant had previously received an extremely lenient sentence for a
serious offense.” United States v. Phillips, 120 F.3d 227, 232 (11th Cir. 1997)
(quotation marks and emphasis omitted); see also U.S.S.G. § 4A1.3, cmt.
background (noting that extremely lenient past sentences may be appropriately
considered). In addition, the district court may consider the similarity of the
current offense to prior offenses in deciding whether to impose a § 4A1.3 upward
departure. See United States v. Castrillon-Gonzalez, 77 F.3d 403, 407 (11th Cir.
1996).2
Here, the district court did not abuse its discretion in departing on the basis
that Moore’s criminal history category under-represented the seriousness of his
criminal history. The district court considered the fact that Moore received only
twelve months’ probation for the Winn-Dixie theft offense, a sentence that did not
adequately reflect the seriousness of that offense. The district court also
considered similarities between the instant bank robbery and Moore’s prior
2
We review a district court’s decision to depart under U.S.S.G. § 4A1.3 for abuse of
discretion. United States v. Hernandez, 160 F.3d 661, 668 (11th Cir. 1998); see also United
States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (explaining that pre-Booker standards
of review apply to review of guideline calculations). In so doing, we review the district court’s
legal determination that it may rely on a particular factor as a basis for departure de novo, its
factual findings for clear error and the extent of the departure for reasonableness. See United
States v. Weaver, 920 F.2d 1570, 1573 (11th Cir. 1991).
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offenses. Both prior offenses involved violent theft crimes. The Winn-Dixie
offense involved an attempted robbery in which Moore flashed what appeared to
be a gun. The robbery “by snatch” involved an attempt to elude police.
Both the leniency of the sentences for prior offenses and the similarity of the
prior offenses are appropriate factors to consider in deciding to depart.
Furthermore, these factors were adequately supported by the record.3 Finally, the
degree of the departure – from a category III to a category IV – is not unreasonable
under the circumstances.
Moore also contends that the district court’s upward departure constituted
double counting prohibited by United States v. Hunerlach, 258 F.3d 1282 (11th
Cir. 2001). Under Hunerlach, a district court may not make an upward departure
in the criminal history category for criminal conduct that was considered relevant
conduct in calculating the defendant’s offense level. 258 F.3d at 1286-87. Here,
Moore’s upward departure was not based on relevant conduct but on past criminal
conduct. Therefore, Hunerlach is inapplicable.
For all these reasons, we conclude that the district court did not abuse its
3
At sentencing and resentencing, Moore did not dispute the factual accuracy of criminal
history portion of his PSI. See United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007)
(explaining that undisputed factual matters in the PSI are deemed admitted and may be relied
upon by the district court in determining the defendant’s sentence); United States v. Bennett, 472
F.3d 825, 832-34 (11th Cir. 2006) (concluding that undisputed facts in the PSI relating to the
defendant’s prior convictions could be used to enhance the defendant’s sentence).
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discretion in departing upward under § 4A1.3 and that Moore’s 120-month
sentence is not unreasonable.
AFFIRMED.
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