United States v. Moore ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-17-2008
USA v. Moore
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4062
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Moore" (2008). 2008 Decisions. Paper 89.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/89
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-4062
____________
UNITED STATES OF AMERICA
v.
DARNELL DEVERLYN MOORE
Darnell Moore,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1 : 07-cr-00131-2)
District Judge: Honorable Sylvia H. Rambo
____________
Submitted Under Third Circuit LAR 34.1(a)
November 20, 3008
Before: FUENTES, HARDIMAN and GARTH, Circuit Judges.
(Filed: December 17, 2008)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Darnell Moore appeals the judgment of the District Court imposing a mandatory
ten-year sentence under 18 U.S.C. § 924(c)(1)(A)(iii). We will affirm.
I.
Because we write exclusively for the parties, we will discuss the facts and
procedural history of the case only briefly.
Moore pleaded guilty to the use of a weapon during a crime of violence, an armed
bank robbery, which carries a five-year mandatory minimum sentence and a maximum
sentence of life imprisonment. 18 U.S.C. § 924(c)(1)(A)(i). As part of his guilty plea,
Moore reserved the right to challenge the Government’s claim that he was subject to a
ten-year mandatory minimum under 18 U.S.C. § 924(c)(1)(A)(iii) because it was
reasonably foreseeable that his co-conspirator would discharge a firearm during the armed
robbery.
The District Court conducted an evidentiary hearing and found as a matter of fact
that Moore could have reasonably foreseen the use of a firearm by his co-conspirator
during the robbery. Moore argues that the District Court erred because he was unaware
that his co-conspirator was armed or intended to discharge a firearm during the robbery.
II.
It is well established that a criminal defendant is liable for the reasonably
foreseeable actions of his co-conspirators. Pinkerton v. United States, 328 U.S. 640, 647-
2
48 (1946); United States v. Ramos, 147 F.3d 281, 286 (3d Cir. 1998) (applying Pinkerton
liability in the context of 18 U.S.C. § 924(c)). The Supreme Court has held that the
statutory enhancements under § 924(c)(1) are sentencing factors which the Government
must prove by a preponderance of the evidence. Harris v. United States, 536 U.S. 545
(2002). We review the District Court’s factual findings related to sentencing for clear
error. United States v. Grier, 475 F.3d 556, 568-70 (3d Cir. 2007) (en banc).
Here, the District Court made three findings of fact in support of its legal
conclusion that the use of a firearm was foreseeable: (1) Moore knew his co-conspirator
always carried a firearm; (2) Moore saw his co-conspirator with a magazine for the
firearm; and (3) Moore acknowledged that he could not physically handle the firearm.
Dist. Ct. Op. at 13. Moore objects to these findings, claiming that he did not have
specific knowledge that his co-conspirator was carrying a firearm on that particular day
and that the facts were unclear as to whether he saw the magazine before or after the
robbery.
Our review of the record leads us to conclude that there is ample support for the
District Court’s factual findings. Moreover, Moore’s admission that his co-conspirator
“always carried a gun” is sufficient to show Moore could have foreseen that a firearm
would be used, brandished or discharged during the robbery, even if Moore did not have
actual knowledge that his co-conspirator had a firearm on that specific day. See United
States v. Dixon, 982 F.2d 116, 120 (3d Cir. 1992).
3
Additionally, Moore’s assertion that the District Court incorrectly credited the FBI
officer’s testimony regarding his viewing of the magazine is unavailing. During
questioning about the events surrounding the robbery, Moore admitted to seeing the
magazine. Moore now asserts that this statement is an insufficient admission because the
statement does not specify that he saw the magazine before the robbery. Moore made this
statement when he was asked if he knew his co-conspirator had ammunition for the gun
and Moore replied that he had seen a loaded magazine. We find that the context in which
this statement was elicited was sufficient for the District Court to credit it as evidence that
Moore saw the magazine before the robbery took place, even though that specific
language was not used.
Finally, Moore’s comment that he did not commit the bank robbery because he
injured his hand and could not carry a firearm is further evidence that the use of a firearm
by one of his co-conspirators was foreseeable.
Having upheld these factual findings, it follows a fortiori that the District Court’s
legal conclusion regarding foreseeability was not clearly erroneous. Therefore, we hold
that the ten-year mandatory minimum of 18 U.S.C. § 924(c)(1)(A)(iii) was properly
applied to Moore.
III.
Moore also challenges the reasonableness of his sentence. This argument is a non-
starter in light of our holding that the ten-year mandatory minimum applies to Moore.
4
Title 18, § 3553(e) gives the District Court limited authority to impose a sentence below
the statutory minimum if the government files a motion that sets out a defendant’s
substantial assistance in the investigation or prosecution of another person who has
committed an offense. No such motion was filed in the case. Thus, having imposed the
mandatory minimum required by statute, the District Court had no authority to review the
sentence for reasonableness. See, e.g., United States v. Tannis, 942 F.2d 196, 198 (3d
Cir. 1991) (holding that the district court had no authority to review a mandatory
minimum sentence under 18 U.S.C. § 3742). Because no motion was filed by the
Government and because the mandatory minimum was imposed, we find Moore’s
sentence reasonable.
For the foregoing reasons, we will affirm the judgment of the District Court.
5