United States v. David Moralez ( 2023 )

USCA4 Appeal: 21-4268 Doc: 34 Filed: 04/11/2023 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4268
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ALEXANDER MORALEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. Kenneth D. Bell, District Judge. (5:19-cr-00061-KDB-DCK-2)
Submitted: March 27, 2023 Decided: April 11, 2023
Before QUATTLEBAUM and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Eric J. Foster, Asheville, North Carolina, for Appellant. Dena J. King, United
States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-4268 Doc: 34 Filed: 04/11/2023 Pg: 2 of 5
PER CURIAM:
David Alexander Moralez was convicted after a jury trial of conspiracy to distribute
and possess with intent to distribute 500 grams or more of a mixture and substance
containing methamphetamine and 50 grams or more of methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; two counts of distribution and possession with
intent to distribute 50 grams or more of methamphetamine and aiding and abetting, in
violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), (b)(1)(A); and conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (h). All four counts
pertained to offense conduct occurring in 2018 and 2019. The district court calculated
Moralez’s advisory imprisonment range under the U.S. Sentencing Guidelines Manual
(2018) at 360 months to life. The court imposed a downward variance and sentenced
Moralez to four concurrent 144-month prison terms. On appeal, Moralez challenges his
convictions and his prison sentence, arguing that the district court reversibly erred in
admitting certain testimony from his co-defendant and that his prison sentence is
substantively unreasonable. We affirm.
We review the district court’s admission of evidence for abuse of discretion. United
States v. Ebert, 61 F.4th 394, 403 (4th Cir. 2023). “A district court abuses its discretion
when it acts arbitrarily or irrationally, fails to consider judicially recognized factors
constraining its exercise of discretion, relies on erroneous factual or legal premises, or
commits an error of law.” United States v. Dillard, 891 F.3d 151, 158 (4th Cir. 2018)
(internal quotation marks omitted). Moralez challenges the district court’s admission of
testimony from his co-defendant Kong Sayavong that his friend and fellow drug dealer
2
USCA4 Appeal: 21-4268 Doc: 34 Filed: 04/11/2023 Pg: 3 of 5
Darren told him during a conversation in 2017 that he had success in shipping packages of
drugs from shipping services business Sam’s Mail Call (Sam’s) and that Sayavong should
try and ship packages from Sam’s and ask for help from “a young Mexican guy named
David.” Moralez claims these statements were inadmissible hearsay.
The Federal Rules of Evidence provide that hearsay is not admissible evidence and
define hearsay as “a statement, that . . . the declarant does not make while testifying at the
current trial . . . and [that] a party offers in evidence to prove the truth of the matter asserted
in the statement.” Fed. R. Evid. 801(c), 802. Statements that are offered to prove the effect
of the statement on the listener, however, are not offered for their truth and thus do not fall
within the definition of hearsay. United States v. Jenkins, 579 F.2d 840, 842 (4th Cir.
1978). We conclude after review of the record that Sayavong’s testimony about what
Darren told him about how he was able to ship drugs from Sam’s was not offered for the
truth of the matters asserted in the conversation. Rather, the testimony was offered for its
effect on the listener, Sayavong. It explained what motivated him to visit Sam’s and why
he approached employee Moralez about working with him. See United States v. Leake,
642 F.2d 715, 720 (4th Cir. 1981) (statement to defendant about use of returned funds was
not hearsay because it was not offered to prove that money was, in fact, used as described
to defendant; its purpose was to show that defendant believed that the funds were being
used legitimately); Jenkins, 579 F.2d at 842 (“Insofar as elements of the taped
conversations not directly expressing Johnson’s intent were offered to prove that intent,
they were not hearsay, for the import of them was their effect on her and not their truth.”
(emphasis omitted)); see also United States v. Leonard-Allen, 739 F.3d 948, 954 (7th Cir.
3
USCA4 Appeal: 21-4268 Doc: 34 Filed: 04/11/2023 Pg: 4 of 5
2013) (“A witness’s statement is not hearsay if the witness is reporting what he heard
someone else tell him for the purpose of explaining what . . . motivated [the witness] to do
something. In th[is] circumstance[], the out-of-court statement is not being offered as
evidence that its contents are true.”); United States v. Simmons, 11 F.4th 239, 263-64
(4th Cir. 2021) (upholding admission of recorded telephone call between defendant’s rival
gang members about their “beef” with defendant because evidence was not admitted “to
prove as true the reasons for the ‘beef’ as stated on the call, but to prove how those reasons
caused [the defendant] to react”). Because Sayavong’s testimony about Darren’s
statements to him explained why Sayavong visited Sam’s and approached Moralez, the
district court did not abuse its discretion in admitting it. 1
Moralez also contends that his 144-month prison sentence is substantively
unreasonable. “We review the reasonableness of a sentence under 18 U.S.C. § 3553(a)
using an abuse-of-discretion standard, regardless of whether the sentence is inside, just
outside, or significantly outside the Guidelines range.” United States v. Nance, 957 F.3d
204, 212 (4th Cir. 2020) (cleaned up). We presume that a sentence within or below a
properly calculated Guidelines range is substantively reasonable. United States v.
Gutierrez, 963 F.3d 320, 344 (4th Cir. 2020). “Such a presumption can only be rebutted
1
We conclude that Moralez’s reliance on United States v. Nelson, 725 F.3d 615(6th Cir. 2013), does not establish to the contrary.
4
USCA4 Appeal: 21-4268 Doc: 34 Filed: 04/11/2023 Pg: 5 of 5
by showing that the sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” Id. (internal quotation marks omitted). 2
Moralez, we conclude, does not make this showing. He suggests that the district
court impermissibly relied on a single factor—its disbelief in his denial of criminal
responsibility—in imposing the sentence. This assertion, however, is belied by the record,
which shows that the district court relied on a host of factors—namely, Moralez’s serious
offense conduct; the needs for the sentence imposed to promote respect for the law, provide
just punishment for that serious conduct, and afford adequate deterrence; Moralez’s history
and characteristics; and the need to avoid unwarranted sentencing disparities, 18 U.S.C.
§ 3553(a)(1), (2)(A)-(C), (6)—in imposing the 144-month prison terms. Moralez fails to
overcome the presumption of substantive reasonableness afforded to his below-Guidelines
prison sentence.
Accordingly, we affirm the criminal judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
2
We have confirmed after review of the record that Moralez’s prison sentence is
procedurally reasonable. See United States v. Provance, 944 F.3d 213, 215, 218 (4th Cir.
2019).
5