United States v. Moore , 350 F. App'x 793 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4189
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL L. MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00389-HEH-1)
Submitted: September 29, 2009 Decided: November 6, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, Alexandria, Virginia,
for Appellant. Dana J. Boente, United States Attorney, John D.
Adams, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael L. Moore appeals his convictions, following a
jury trial, on one count of possession of marijuana with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1) (2006)
(“Count One”), and one count of possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (2006) (“Count Three”), 1 and the ensuing 360-
month sentence. Moore challenges the sufficiency of the
Government’s evidence of his guilt and the district court’s
decision to sentence him as a career offender. For the reasons
that follow, we affirm.
I. Sufficiency of the Evidence
In order to establish a violation of 21 U.S.C.
§ 841(a)(1), the Government must prove beyond a reasonable doubt
that the defendant: (1) knowingly; (2) possessed the controlled
substance; (3) with the intent to distribute it. United
States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999). Moore
asserts the Government failed to meet its burden of proof on the
third element.
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Moore was also convicted of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006), but
raises no argument pertinent to this count.
2
To establish this element, the Government called DEA
Task Force Agent Phil Johnakin, who testified as an expert on
the pricing, packaging, and distribution of marijuana in
Virginia. According to Johnakin, marijuana is “typically
packaged in plastic bag corners, for smaller amounts, which are
knotted . . . and cut.” The drugs seized from Moore were
packaged in this manner, and each baggie contained between 1.5
and 2 grams of marijuana. Johnakin opined that each baggie
would sell for approximately $20, which was consistent with the
$265 in five, ten, and twenty dollar bills found on Moore.
Finally, Johnakin testified that drug dealers frequently carry
firearms to protect themselves, their drugs, and their money.
Officer Frye, one of the police officers on the scene of Moore’s
arrest, testified that Moore removed a firearm from his
waistband and threw it into a nearby bush prior to being
apprehended.
Johnakin expressed his expert opinion that, “based on
everything, . . . [Moore’s possession of marijuana was]
inconsistent with personal use, and more consistent with
possession with the intent to distribute.” Johnakin elaborated,
noting his opinion was “[b]ased on the manner [in] which the
drugs were packed, based on the amount of currency – or the
manner of the currency, the 10s and 20s and 5s, as well as the
firearm being in close proximity to all the above.”
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Taken in the light most favorable to the Government,
Evans v. United States, 504 U.S. 255, 257 (1992), this evidence
was more than sufficient to satisfy the Government’s burden and
to permit a reasonable trier of fact to find Moore guilty of
Count One.
Moore next challenges the sufficiency of the
Government’s evidence on Count Three, particularly that he
possessed the firearm in furtherance of the drug trafficking
offense.
“[T]o prove the § 924(c) violation, the government was
required to present evidence indicating that the possession of a
firearm furthered, advanced, or helped forward a drug
trafficking crime. However, whether the firearm served such a
purpose is ultimately a factual question.” United States v.
Perry, 560 F.3d 246, 254 (4th Cir. 2009) (internal quotation
marks and citation omitted), petition for cert. filed, ___
U.S.L.W. ___ (U.S. June 19, 2009) (No. 08-11019). In reaching
this determination, the jury may consider:
[T]he type of drug activity that is being conducted,
accessibility of the firearm, the type of weapon,
whether the weapon is stolen, the status of the
possession (legitimate or illegal), whether the gun is
loaded, proximity to drugs or drug profits, and the
time and circumstances under which the gun is found.
United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002)
(internal quotation marks and citations omitted).
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In light of the Lomax factors, the Government’s evidence
that Moore’s possession of a firearm was in furtherance of his
drug activity was substantial. According to Frye’s testimony,
Moore was carrying the firearm in the waistband of his pants,
rendering it accessible and in close proximity to the marijuana
and money found in his pants pockets. Moreover, Moore possessed
the gun contemporaneously with his marijuana possession. Trial
testimony further established that the firearm was loaded, with
one bullet in its chamber. Because the facts amply satisfy the
Lomax factors, we affirm the conviction on Count Three.
II. Career Offender Designation
Moore also argues the district court erred as a matter
of fact and law in finding that his parole on two prior drug
convictions was revoked such that both convictions counted
toward the career offender designation.
A. Standard of Review
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also
United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. July 24, 2009)
(No. 09-5584). In so doing, we first examine the sentence for
“significant procedural error,” including “failing to calculate
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(or improperly calculating) the Guidelines range.” Gall, 128 S.
Ct. at 597. In reviewing the district court’s application of
the Sentencing Guidelines, this court reviews findings of fact
for clear error and questions of law de novo. Layton, 564 F.3d
at 334.
B. Factual Basis for Enhancement and Guidelines Application
On April 5, 1990, Moore was sentenced in Virginia
state court for possession with intent to distribute cocaine
(“possession conviction”) and conspiracy to distribute cocaine
(“conspiracy conviction”). The pre-sentence report (“PSR”)
established that, with regard to the possession conviction,
Moore was released on discretionary parole on March 25, 1992,
but his parole was revoked on June 6, 1994. He was again
paroled on January 16, 1997. Regarding the conspiracy
conviction, the PSR noted that “the defendant’s parole
adjustment is provided in the preceding narrative,” referring to
the possession conviction.
To be sentenced as a career offender, the defendant
must be at least eighteen at the time of the instant conviction,
the offense must have been a crime of violence or a controlled
substance offense, and the defendant must have two prior
convictions for felony crimes of violence or controlled
substance offenses. U.S. Sentencing Guidelines Manual (“USSG”)
6
§ 4B1.1(a) (2008); United States v. Poole, 531 F.3d 263, 265 n.1
(4th Cir. 2008). Only the third element is in dispute here.
The date Moore was last incarcerated on his prior
convictions controls whether those convictions count toward the
career offender designation. USSG § 4B1.2 cmt. n.3; USSG
§ 4A1.2(e)(1), (k)(2)(B)(i). Although Moore was originally
sentenced in 1990, his parole was revoked on June 6, 1994, and
he was incarcerated until January 16, 1997. Thus, because Moore
was last released from incarceration in relation to the prior
sentences within the fifteen-year look-back period, the
probation officer concluded both convictions counted.
C. Claim of Factual Error
Moore first asserts the district court erred in
concluding that he had two qualifying predicate convictions
because the PSR did not conclusively establish whether the
revocation went to one or both of the convictions, and the
Government did not produce any evidence to prove this fact.
This argument lacks merit. The PSR enumerated both
the possession and conspiracy convictions, detailed the parole
adjustment imposed in the possession conviction, and made
reference to that same adjustment in its discussion of the
conspiracy conviction. Despite the Government’s clear intent to
rely upon the parole revocation to reinvigorate Moore’s prior
sentences such that they would be counted under USSG
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§ 4A1.2(e)(1), (k)(2)(B)(i), Moore did nothing more than object
in the district court; he did not provide any documentation to
support his argument that parole was revoked as to only one of
his prior convictions.
“If the district court relies on information in the
[PSR] in making findings, the defendant bears the burden of
establishing that the information . . . is incorrect; mere
objections are insufficient.” Randall, 171 F.3d at 210-11;
accord United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990). Moore failed to satisfy this burden. Accordingly, the
district court did not clearly err in finding Moore had two
qualifying predicate convictions for controlled substance
offenses.
D. Claim of Legal Error
Moore next argues the district court misapplied the
relevant guidelines and committed legal error in concluding he
qualified as a career offender. At the cornerstone of Moore’s
argument is Application Note 11 to USSG § 4A1.2(k), which
clarifies the method for tacking terms of incarceration imposed
upon revocation of parole or probation to original sentences. 2
2
This note directs that, when there is a single revocation
of multiple sentences, the term of incarceration imposed upon
revocation is added to the greater of the original terms of
imprisonment, not to each term. USSG § 4A1.2 cmt. n.11.
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The Ninth Circuit has concluded that Application Note
11 is not relevant to the issue raised by Moore. See United
States v. Semsak, 336 F.3d 1123, 1127-28 (9th Cir. 2003). The
probation officer in Semsak relied on the revocation solely to
bring the defendant’s prior convictions within the fifteen-year
window necessary to count them as prior sentences – not to
satisfy the durational requirement to count them. Id. at 1128.
Accordingly, the Ninth Circuit found that Application Note 11
did not apply as it “addresses only the points assigned due to
the length of sentences, not the recency of the sentences.” Id.The court thus rejected Semsak’s argument that Application Note
11 established that points should be assigned to only one
sentence, finding that, “[u]nder the plain meaning of USSG
§ 4A1.2(e)(1) and § 4A1.1(k)(2)(a), both sentences fell within
[the fifteen-year] period, and the district court correctly
added three points for each conviction.” Id.
We find the Ninth Circuit’s reasoning persuasive. The
probation officer here used the parole revocation proceeding to
bring Moore’s prior convictions within the fifteen-year look-
back period. There simply was no tacking of an additional term
of incarceration on to an original sentence, and thus
Application Note 11 was not applicable. Further, Moore cites no
authority to support his position that a similar approach should
be employed in this particular context.
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For the foregoing reasons, we affirm Moore’s
convictions and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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