United States v. Moore , 305 F. App'x 130 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MALIK MONTREASE MOORE,
Defendant - Appellant.
______________
No. 07-5031
______________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MALIK MONTREASE MOORE,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00235-RLV-DCK-3)
Submitted: November 25, 2008 Decided: December 31, 2008
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, P.L.L.C., Asheville,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a jury trial, Malik Montrease Moore was
convicted of one count of conspiracy to possess with intent to
distribute at least fifty grams or more of a mixture or
substance containing a detectable amount of cocaine base, in
violation of 21 U.S.C. § 846 (2006), for a drug distribution
conspiracy existing between 1987 and 2005 in Caldwell County,
North Carolina. Because Moore had two prior felony convictions,
the district court sentenced him to the enhanced sentence of
life in prison. Moore timely appealed.
On appeal, Moore argues that the district court: (1)
erred in denying his motion for judgment of acquittal because
the Government failed to sufficiently prove that he conspired to
distribute cocaine base; (2) engaged in improper judicial
factfinding, in violation of his Sixth Amendment rights; and (3)
erred in using prior convictions to enhance his sentence.
Finding no error, we affirm.
We review de novo a district court’s denial of a Fed.
R. Crim. P. 29 judgment of acquittal. United States v. Alerre,
430 F.3d 681, 693 (4th Cir. 2005). In conducting such a review,
we are obligated to sustain a guilty verdict if, viewing the
evidence in the light most favorable to the prosecution, the
verdict is supported by “substantial evidence.” United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)
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(citing Glasser v. United States, 315 U.S. 60, 80 (1942)).
Whether there is a single conspiracy or multiple conspiracies,
and whether there was an agreement to participate in the
conspiracy, are questions of fact for the jury, and we must
affirm its finding “unless the evidence, taken in the light most
favorable to the government, would not allow a reasonable jury
so to find.” United States v. Harris, 39 F.3d 1262, 1267 (4th
Cir. 1994) (internal quotation marks and citation omitted); see
Glasser, 315 U.S. at 80. In evaluating the sufficiency of the
evidence, this court does not review the credibility of the
witnesses and assumes that the jury resolved all contradictions
in the testimony in favor of the Government. United States v.
Brooks, 524 F.3d 549, 563 (4th Cir. 2008). The uncorroborated
testimony of one witness or accomplice may be sufficient to
sustain a conviction. United States v. Wilson, 115 F.3d 1185,
1190 (4th Cir. 1997). This court “can reverse a conviction on
insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir.
2006) (en banc) (internal quotation marks and citation omitted).
“To prove a conspiracy under 21 U.S.C. § 846, the
government must prove (1) an agreement between two or more
persons to engage in conduct that violates a federal drug law,
(2) the defendant’s knowledge of the conspiracy, and (3) the
defendant’s knowing and voluntary participation in the
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conspiracy.” United States v. Strickland, 245 F.3d 368, 384-85
(4th Cir. 2001); see Burgos, 94 F.3d at 857. A defendant may be
convicted of conspiracy without knowing all the conspiracy’s
details, its full scope, or all of its members, and without
taking part in all of its activities over its entire existence.
United States v. Nunez, 432 F.3d 573, 578 (4th Cir. 2005). He
need only enter the conspiracy understanding its unlawful nature
and willfully join in the plan on at least one occasion.
Burgos, 94 F.3d at 858; see United States v. Banks, 10 F.3d
1044, 1054 (4th Cir. 1993). The existence of an unspoken or
mutual understanding between conspirators is adequate evidence
of a conspiratorial agreement. United States v. Cardwell, 433
F.3d 378, 390 (4th Cir. 2005). There is often little direct
evidence of the conspirators’ agreement. Burgos, 94 F.3d at
857. The government need not prove a conspiracy’s identifiable
organizational structure.
“A single conspiracy exists where there is one overall
agreement or one general business venture.” Nunez, 432 F.3d at
578 (internal quotation marks and citation omitted). The
existence of a single conspiracy “depends upon the overlap of
main actors, methods, and goals.” Id. “[T]rial evidence is
sufficient to establish a single conspiracy where the
conspirators are shown to share the same objectives, the same
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methods, the same geographic spread, and the same results.” See
United States v. Smith, 451 F.3d 209, 218 (4th Cir. 2006).
Here, Moore and his coconspirators were shown to have
shared the same objectives and methods: distributing crack
cocaine in Caldwell County for profit. Witnesses explained that
Moore regularly purchased a vast quantity of drugs to supply to
numerous individuals for resale. These were not isolated,
buyer-seller transactions. Howell and Edmisten, coconspirators
with Moore, pleaded guilty and then testified about their
involvement with Moore to distribute cocaine. Other witnesses
testified as to specific details of Moore’s involvement in drug
distribution: they knew from whom Moore obtained his crack
cocaine and to whom he sold it. Moore also sold drugs to
confidential informants working directly for police on more than
one occasion. The totality of the evidence revealed large
quantities of crack cocaine regularly being purchased and sold
among the same individuals, indicating the existence of a casual
but common plan. Based upon the evidence, the jury was entitled
to conclude that the actions of Moore and his conspirators in
the distribution of drugs amounted to a single conspiracy.
Therefore, the court properly denied Moore’s motion for judgment
of acquittal.
Next, Moore argues that the district court violated
his Sixth Amendment rights when it engaged in impermissible
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fact-finding and used prior convictions to enhance his sentence.
In Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998),
the Supreme Court held that, when seeking a sentencing
enhancement based on a prior conviction, the Government “need
not allege a defendant’s prior conviction in the indictment or
information that alleges the elements of an underlying crime.”
The Court reaffirmed this holding when it held that, “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis
added). Moore concedes that we observed after Apprendi that
“the fact of a prior conviction remains a valid enhancement even
when not found by the jury,” United States v. Thompson, 421 F.3d
278, 282 (4th Cir. 2005) (internal quotation marks omitted), but
argues that the overruling of Almendarez-Torres is imminent, and
that using prior convictions to enhance a sentence is
constitutionally infirm.
Despite Moore’s policy arguments, Almendarez-Torres
remains authoritative, and we have reaffirmed its continuing
validity after Apprendi. See Thompson, 421 F.3d at 282; United
States v. Cheek, 415 F.3d 349, 351-54 (4th Cir. 2005). Moore’s
argument lacks merit.
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Moore also argues that the two prior convictions used
to enhance his sentence were not “prior” to the instant
conspiracy conviction as they were merely separate convictions
arising out of the same transaction, citing United States v.
Blackwood, 913 F.2d 139, 145-46 (4th Cir. 1990). Moore contends
that because the drug conspiracy as alleged in the indictment
began in 1987 and continued through 2005, his convictions on
August 1, 2000, for the sale and delivery of cocaine, and on
April 14, 2003, for the sale of cocaine, arose out of the same
criminal enterprise and could not be used to enhance his
sentence.
Moore’s argument is misplaced. We have squarely
concluded that “[w]hen a defendant is convicted of a drug
conspiracy under 21 U.S.C. § 846, prior drug felony convictions
that fall within the conspiracy period may be used to enhance a
defendant’s sentence if the conspiracy continued after his
earlier convictions were final.” United States v. Smith, 451
F.3d 209, 224-25 (4th Cir. 2006); see 21 U.S.C. § 841(b)(1)(A)
(outlining penalties for § 846 violations and stating that
“final” prior felony convictions may be used to enhance
sentence). Because the conspiracy for which Moore was convicted
continued well beyond his 2000 and 2003 convictions for the sale
of cocaine, we conclude these two convictions were properly
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considered “prior” convictions for sentencing enhancement
purposes.
Accordingly, we affirm Moore’s conviction 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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