United States v. Michael Moore ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4842
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LAMONT MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:10-cr-00208-RJC-DSC-4)
Submitted: June 20, 2013 Decided: June 25, 2013
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence W. Hewitt, GUTHRIE, DAVIS, HENDERSON & STATON, PLLC,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina;
Robert John Gleason, John George Guise, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Lamont Moore was convicted of conspiracy to
obstruct, delay, and affect commerce, in violation of 18 U.S.C.
§ 1951 (date) (Count 1); obstruct, delay and affect commerce and
aiding and abetting, in violation of § 1951 and 18 U.S.C. § 2(date) (Count 2); and use and carry a firearm in furtherance of
a crime of violence, in violation of 18 U.S.C. § 924(c) (date).
Moore’s underlying convictions resulted from his participation
and planning of a robbery and his firing a gun at a police
officer. He was sentenced to eighty-four months for Counts 1
and 2 to run concurrent to each other and 120 months
consecutively for the § 924(c) violation, for a total sentence
of 204 months of imprisonment.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but raising two issues: (1)
whether the trial court erred by denying Moore’s motion for a
variance sentence; and (2) whether there was sufficient evidence
for the jury to convict Moore of using and carrying a firearm in
furtherance of a crime of violence. For the reasons that
follow, we affirm.
Moore argues that the district court should have
granted him a downward variance because he suffered a head
injury when he was a child. We review Moore’s sentence under a
2
deferential abuse-of-discretion standard, see Gall v. United
States, 552 U.S. 38, 51 (2007), for procedural and substantive
reasonableness. Id.; United States v. Lynn, 592 F.3d 572, 575
(4th Cir. 2010). If a sentence is within the appropriate
Sentencing Guidelines range, we presume that the sentence is
reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217
(4th Cir. 2010).
We conclude that the district court committed neither
procedural nor substantive error in sentencing. The court fully
evaluated and resolved Moore’s objection to the presentence
report, accurately calculated and considered Moore’s Guidelines
range, heard argument from counsel for a downward variance and
gave Moore an opportunity to address the court. The court
expressly considered the 18 U.S.C. § 3553(a) (2006) factors,
explained that the within-Guidelines sentence was warranted in
light of the seriousness of the offense, and counsel does not
offer any grounds to rebut the presumption on appeal that
Moore’s within-Guidelines sentence is substantively reasonable,
and our review reveals none. Accordingly, we conclude that the
district court did not abuse its discretion in sentencing Moore.
Moreover, we note that Moore’s argument that his prior head
injury cognitively impaired him is not well taken in light of
his role in the store robbery where he and his co-conspirator
used masks and gloves, held a gun to the cashier’s head, who was
3
a sixteen-year-old girl, and managed to initially elude police
by, among other things, firing on an officer in pursuit.
Whiling hiding from the police at his home, Moore divided up the
money from the robbery with other participants.
In his second issue, Moore claims that his § 924(c)
conviction was not supported by sufficient evidence and
therefore the court should have granted his for a judgment of
acquittal under Fed. R. Crim. P. 29. We review de novo the
district court’s denial of a Rule 29 motion. United States v.
Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011). We will uphold
a conviction in the face of a challenge to the sufficiency of
the evidence, if there is substantial evidence, taking the view
most favorable to the Government, to support it. United States
v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008). In conducting
this review, we will not weigh evidence or review witness
credibility. United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007). Here, the evidence revealed that Moore possessed a
gun that he fired at an officer while fleeing police after the
robbery. That gun was also used in the robbery. Thus, this
claim fails.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Moore’s conviction and sentence. This court
requires that counsel inform Moore, in writing, of the right to
4
petition the Supreme Court of the United States for further
review. If Moore requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Moore. 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
5