United States v. Calvin Moore ( 2011 )


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  •                                                       NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _______________
    No. 10-1454
    _______________
    UNITED STATES OF AMERICA
    v.
    CALVIN MOORE,
    Appellant
    _______________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Criminal No. 2-07-cr-00380-001)
    District Judge: Hon. Nora B. Fischer
    _______________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    June 21, 2011
    BEFORE: BARRY, AMBRO and COWEN , Circuit Judges
    (Filed June 30, 2011)
    _______________
    OPINION
    _______________
    COWEN, Circuit Judge.
    Calvin Moore appeals from the judgment of sentence entered against him by the
    United States District Court for the Western District of Pennsylvania. For the following
    reasons, we will affirm.
    I.
    On March 2, 2007, an informant working with federal officers purchased 13.7
    grams of crack cocaine from Moore. Before charges were initiated in the federal case,
    however, he began serving a Pennsylvania sentence (on unrelated drug charges) of not
    less than one year, or more than two years, of imprisonment.1 Shortly after he began
    serving his state sentence, a federal grand jury returned an indictment in connection with
    the March 2, 2007 transaction, charging him with one count of distribution of more than
    five grams of cocaine base in violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(B)(iii). At
    that time, Moore was removed from state prison by a writ of habeas corpus ad
    prosequendum and taken into federal custody. Moore remained in federal custody and
    pled guilty to the federal charge on May 8, 2009.
    Moore’s sentencing hearing took place on January 25, 2010. By this time, he had
    already completed the full two-year term of his state sentence while in federal detention.
    At the hearing, the District Court imposed the statutory minimum sentence for the
    offense, sixty months’ imprisonment. See 
    21 U.S.C. § 841
    (b)(1)(B)(iii).2 The District
    Court rejected Moore’s argument that the imposition of a mandatory minimum sentence
    derived from the 100:1 crack-to-powder cocaine ratio was unconstitutional, and denied
    1
    The state court ordered that Moore’s term of imprisonment shall be followed by
    probation for eighteen months consecutive to parole.
    2
    As discussed further below, 
    21 U.S.C. § 841
    (b)(1)(B)(iii) was amended pursuant to the
    Fair Sentencing Act to increase the amount of crack cocaine that triggers a mandatory
    2
    his request to vary from the statutory minimum sentence by finding that such a sentence
    was “greater than necessary” to serve the purposes of § 3553(a). The District Court also
    declined to adjust Moore’s sentence on the ground that his placement in federal custody
    by way of the writ of habeas corpus ad prosequendum had unfairly lengthened his total
    jail time by interfering with his ability to participate in the state’s early release programs.
    Moore now appeals from the judgment of sentence.
    II.
    The District Court had jurisdiction pursuant to 
    18 U.S.C. § 3231
    , and we have
    jurisdiction pursuant to 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a). We apply a plenary
    standard of review to issues of statutory interpretation, questions regarding a statute’s
    constitutionality, and alleged constitutional errors. See United States v. Randolph, 
    364 F.3d 118
    , 121 (3d Cir. 2004); United States v. Tyler, 
    281 F.3d 84
    , 94 (3d Cir. 2002). We
    review a sentence for procedural and substantive reasonableness under an abuse-of-
    discretion standard. Gall v. United States, 
    552 U.S. 38
    , 51 (2007).
    III.
    Moore first challenges the District Court’s decision not to adjust his federal
    sentence to account for the fact that, because he served his state sentence while in federal
    detention, he did not have an opportunity to take advantage of Pennsylvania’s early
    release programs. At sentencing, Moore explained to the District Court that, when he was
    sentenced for the Pennsylvania drug offense, the state court recommended him for
    minimum sentence.
    3
    placement in the Pennsylvania Motivational Boot Camp Program.              If he had been
    accepted into the program, he would have been eligible to earn early release in as little as
    six months. Even if he did not complete boot camp, he explained, he nonetheless would
    have been eligible for parole after serving one year of his two-year term. Instead, because
    he was taken into federal custody shortly after beginning to serve his state sentence, he
    did not have an opportunity to take advantage of these early-release programs and was
    required to serve the complete two-year state sentence while in federal detention before
    he began to accrue any time toward his federal sentence for the instant offense. Moore
    claimed that this was fundamentally unfair and asked the District Court to sentence him
    below the mandatory minimum to account for this unfairness.3 The District Court denied
    the request on the grounds that: (a) Moore did not qualify for a downward departure
    under either U.S.S.G. §§ 5G1.3 or 5K2.23;4 and (b) Moore had failed to show that he
    ultimately would have been accepted into the Motivational Boot Camp Program and
    released after only six months, or that, alternatively, he would have been paroled after
    only one year.
    3
    Specifically, Moore asked the District Court to reduce his sentence by either: (a)
    eighteen months, to account for the time he spent in federal detention in excess of the six
    months he would have spent in boot camp; or (b) twelve months, to account for the time
    he spent in federal detention in excess of the time he would have spent in state prison
    before becoming eligible for parole. Moore also asked the court to reduce his sentence by
    twenty-four months to effectively make his state-court sentence run concurrent to his
    federal sentence.
    4
    As the District Court explained, U.S.S.G. §§ 5G1.3 and 5K2.23 apply only where the
    same course of criminal conduct gave rise to both the state and federal charges.
    Furthermore, § 5G1.3 applies only to undischarged sentences.
    4
    On appeal, Moore argues that the District Court failed to sufficiently consider his
    argument that the federal writ interfered with the state judge’s discretion to fashion an
    appropriate sentence, and also failed to make clear whether it was denying his request for
    an adjustment based on “the law of variance, the law of departure or for other reasons and
    whether those reasons were legal or discretionary reasons.” (Br. 27.) We disagree. We
    have reviewed the record and conclude that the District Court thoroughly considered all
    of Moore’s arguments, properly determined that Moore did not qualify for a downward
    departure under either U.S.S.G. §§ 5G1.3 or 5K2.23, and reasonably concluded that his
    arguments about the shorter state sentence he might have served had he remained in state
    prison were too speculative to warrant relief. Accordingly, we see no procedural or
    substantive error in the District Court’s decision.
    Next, Moore argues that the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
    
    124 Stat. 2372
     (the “FSA”), which increased the threshold amount of crack cocaine that
    triggers a mandatory minimum sentence under § 841(b)(1)(B) and went into effect while
    his appeal was pending, should be applied to his case. His arguments in support of
    retroactive effect are foreclosed by our decision in United States v. Reevey, 
    631 F.3d 110
    ,
    114-15 (3d Cir. 2010), in which we held that the mandatory minimum sentences for crack
    violations in effect before the enactment of the FSA apply to defendants who committed
    their crimes while the prior law was in force.
    Moore also argues that the statutory minimums in 
    21 U.S.C. § 841
     based on the
    100:1 crack-to-powder ratio in effect at the time of his sentence violate due process, equal
    5
    protection, and the proportionality principle of the Eighth Amendment.           We have
    consistently held, however, that the distinctions between crack and powder cocaine in §
    841 and the Guidelines in effect at the time of Moore’s sentencing do not violate a
    defendant’s right to due process or equal protection. See United States v. Alton, 
    60 F.3d 1065
    , 1068-70 (3d Cir. 1995); United States v. Frazier, 
    981 F.2d 92
    , 95 (3d Cir. 1992).
    We have also held that neither the mandatory minimum sentences for crack offenses
    under § 841, nor the 100:1 crack-to-powder ratio, violates the Eighth Amendment’s
    prohibition on cruel and unusual punishments. See Frazier, 981 F.3d at 96. Moore’s
    arguments urging this Court to reconsider these holdings in light of the FSA and
    Kimbrough v. United States, 
    552 U.S. 85
     (2007), are unavailing.
    Lastly, Moore argues that § 841(b)(1)(B)(iii)’s mandatory minimum sentence
    “conflicts” with the parsimony provision of 
    18 U.S.C. § 3553
    (a), which provides that a
    district court “shall impose a sentence sufficient, but not greater than necessary” to
    accomplish the goals of sentencing. 
    18 U.S.C. § 3553
    (a). Specifically, Moore contends
    that the District Court was unable to “carry out its judicial function, as set forth in the
    mandates of 
    18 U.S.C. § 3553
    (a), because it had to comply with the mandatory five (5)
    year sentence.” (Br. 59.) We have previously rejected such challenges to mandatory
    minimum sentences.     See United States v. Walker, 
    473 F.3d 71
    , 85 (3d Cir. 2007)
    (holding that there is no conflict between § 3553 and a mandatory minimum sentence
    provision because “§ 3553(a) must be read in conjunction with § 3553(e), which prohibits
    the court from sentencing a defendant below the statutory mandatory minimum sentence
    6
    unless the Government files a motion permitting such departure”); United States v.
    MacEwan, 
    445 F.3d 237
    , 251-52 (3d Cir. 2006) (“Congress has the power to define
    criminal punishments without giving the courts any sentencing discretion.” (quoting
    Chapman v. United States, 
    500 U.S. 453
    , 467 (1991))).
    IV.
    For the reasons set forth above, we will affirm the judgment of sentence.
    7