United States v. Moore , 586 F. App'x 801 ( 2014 )

14-123
United States v. Moore
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 16th day of October, two thousand fourteen.
4
5 PRESENT:
6 DENNIS JACOBS,
7 ROBERT D. SACK
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10 _____________________________________
11
12 United States of America,
13
14 Appellee,
15
16 v. 14-123
17
18 Christopher Moore,
19
20 Defendant-Appellant,
21
22 Daniel Gladden, AKA Raz, AKA Raz
23 Gladden, AKA Noodles Gladden, AKA
24 Noodles,
25
26 Defendant.
27 _____________________________________
28
29 FOR DEFENDANT-APPELLANT: Christopher Moore, pro se, Pollock, LA.
30
1 FOR APPELLEE: Peter A. Norling and Matthew S. Amatruda,
2 Assistant United States Attorneys for Loretta E.
3 Lynch, United States Attorney for the Eastern
4 District of New York, Brooklyn, NY.
5
6 Appeal from an order of the United States District Court for the Eastern District of New
7 York (Garaufis, J.).
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
9 DECREED that the order is AFFIRMED.
10 Defendant-Appellant Christopher Moore, pro se, appeals from the district court’s order
11 denying post-conviction submissions that seek to reduce his sentence. We assume the parties’
12 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
13 Moore’s arguments can be distilled to two claims: (1) he should be resentenced based on
14 the Guidelines that apply to powder cocaine offenses, not crack cocaine offenses, because
15 18 U.S.C. § 3582(c)(2) was not the appropriate vehicle to reduce his sentence; and (2) the
16 100-to-1 sentencing ratio of powder cocaine to crack cocaine violates the Equal Protection
17 Clause. The other issues he raised in the district court--including that the Fair Sentencing Act of
18 2010 should have applied to him, that the court should recalculate his criminal history category
19 in light of Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and that his sentence violated
20 Alleyne v. United States, 133 S. Ct. 2151 (2013)--are deemed abandoned. See Norton v. Sam’s
21 Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are
22 considered waived and normally will not be addressed on appeal.”); LoSacco v. City of
23 Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding, in the context of a pro se appeal, that
24 issues not raised in an appellate brief are abandoned). Additionally, to the extent that Moore
2
1 challenges the district court’s 2009 order reducing his sentence pursuant to § 3582(c)(2), we lack
2 jurisdiction to consider the challenge because that order is not before this Court; rather, Moore
3 has appealed only from the November 2013 order of the district court.
4 Moore has repeatedly tried to challenge his sentence on the basis that the trial evidence
5 established only that he dealt in powder cocaine and not crack cocaine. However, because he did
6 not raise it on direct appeal, he is precluded from raising this claim. See United States v. Ben
7 Zvi, 242 F.3d 89, 95 (2d Cir. 2001). In any event, he unsuccessfully raised the same challenges
8 in a Fed. R. Crim. P. 33 motion, a 28 U.S.C. § 2255 motion, and most recently, a successive
9 application. See United States v. Moore, 182 F.3d 902 (2d Cir. 1999) (unpublished); United
10 States v. Moore, E.D.N.Y. Docket No. 01-cv-4811; Moore v. United States, 2d Cir. Docket No.
11 14-2535. Thus, this claim has already been raised and rejected and is precluded under the
12 mandate rule.
13 Section 3582 permits a district court to modify a sentence in three limited circumstances:
14 (1) the Bureau of Prisons (“BOP”) has filed a motion, and either extraordinary and compelling
15 reasons warrant a reduction or the defendant is at least 70 years old and meets certain other
16 requirements, see 18 U.S.C. § 3582(c)(1)(A); (2) another statute or Federal Rule of Criminal
17 Procedure 35 expressly permits a sentence modification, see id. § 3582(c)(1)(B); or (3) the
18 defendant has been sentenced to a term of imprisonment based on a sentencing range that was
19 later lowered by the Sentencing Commission and certain other requirements are met, see id.
20 § 3582(c)(2).
21 Potentially relevant here is the relief provided under § 3582(c)(2). We review a district
22 court’s decision to grant or deny a § 3582(c)(2) motion for abuse of discretion, see United States
3
1 v. Borden, 564 F.3d 100, 104 (2d Cir. 2009), and where questions of law are raised, they are
2 reviewed de novo, see United States v. Main, 579 F.3d 200, 202-03 (2d Cir. 2009). As the
3 district court determined, Moore was not eligible for such relief because his sentencing range
4 had not been subsequently lowered by the Sentencing Commission since his last reduction in
5 2009. With a total offense level of 40 and a criminal history category of III, his Guidelines range
6 was still 360 months to life. See U.S.S.G. ch. 5 pt. A. Moore’s current sentence, 360 months of
7 imprisonment, is the same as the minimum of the amended Guidelines range; so he was
8 ineligible for a further sentence reduction. See U.S.S.G. § 1B1.10(b)(2). Additionally, Moore
9 would not be eligible for relief under any other provision of § 3582: the BOP did not move to
10 reduce Moore’s sentence, and he did not identify any post-sentencing reduction of the applicable
11 guidelines range. As to Rule 35, relief would be untimely, and Moore pointed to no “clear error”
12 in the record that warranted correction. The district court therefore correctly denied Moore’s
13 request.
14 Moore’s equal protection claim is also without merit. He seeks reconsideration of
15 whether the crack cocaine laws violate the Equal Protection Clause in light of the Sixth Circuit’s
16 decision in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). However, the Sixth Circuit
17 vacated its decision in Blewett and subsequently held: “(1) the [FSA]’s new mandatory
18 minimums do not apply to defendants sentenced before it took effect; (2) § 3582(c)(2) does not
19 provide a vehicle for circumventing that interpretation; and (3) the Constitution does not provide
20 a basis for blocking [that interpretation].” United States v. Blewett, 746 F.3d 647, 650 (6th Cir.
21 2013) (en banc). In any event, we have considered and rejected equal protection arguments
22 similar to those that were advanced in Blewett. See, e.g., United States v. Samas, 561 F.3d 108,
23 110 (2d Cir. 2009).
4
1 We have considered all of Moore’s remaining arguments and find them to be without
2 merit. Accordingly, the order of the district court is hereby AFFIRMED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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