United States v. Moore ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5586
ROBERT AUGUSTA MOORE, a/k/a Billy
Moore, a/k/a Rob Moore,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Robert G. Doumar, Senior District Judge.
(CR-95-13)
Submitted: September 24, 1996
Decided: February 20, 1997
Before HALL, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Richard W. Hudgins, Newport News, Virginia, for Appellant.
Helen F. Fahey, United States Attorney, Michael R. Smythers, Execu-
tive Assistant United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Robert Augusta Moore appeals from his convictions and
sentences entered pursuant to his guilty plea for possession with intent
to distribute crack cocaine and possession of a firearm in violation of
21 U.S.C. § 841(a)(1) (1994), 18 U.S.C.A.§ 924(c) (West Supp.
1996), and 18 U.S.C.A. § 922(g)(1) (West Supp. 1996). We affirm the
convictions and sentences.
Several of Appellant's assignments of error concern the constitu-
tionality of the Sentencing Guidelines' differing treatment of crack
cocaine offenses as opposed to powder cocaine offenses. We have
consistently rejected equal protection arguments concerning the 100-
to-1 crack cocaine to powder cocaine sentencing ratio. See United
States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc); United States
v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923). Therefore, these
claims are meritless.
Moore also asserts that the Guidelines' definition of cocaine base
is unconstitutionally vague. We find that the term as used in the
Guidelines is not facially ambiguous. See United States v. Canales,
91 F.3d 363 (2d Cir. 1996); Fisher, 58 F.3d at 99.
Finally, Moore asserts that his conviction under§ 924(c) is now
invalid under Bailey v. United States, 516 U.S. ___, 64 U.S.L.W.
4039 (U.S. Dec. 6, 1995) (No. 94-7448), which substantially nar-
rowed application of § 924(c) in relation to convictions for "use" of
a firearm. At the outset, we find that we may review the factual basis
of Moore's guilty plea. There is no waiver of appellate review provi-
sion in Moore's plea agreement. In addition, this Court reviews
"whether the undisputed facts upon which the plea was made and
accepted constituted a violation of the statute upon which defendant
was charged . . . freely, as one of law." United States v. Holmes, 840
F.2d 246, 248 n.2 (4th Cir. 1988).
Appellate courts have the discretion to resolve issues not raised
below if justice so requires, Singleton v. Wulff , 428 U.S. 106, 121
2
(1976), and an appellate court should apply the law in effect at the
time of an appeal. See United States v. Novey , 922 F.2d 624, 629
(10th Cir.), cert. denied, 501 U.S. 1234 (1991). In addition, we may
consider issues not raised below where a supervening decision has
changed the law in appellant's favor, and the law was so well-settled
at the time of trial that any attempt to challenge it would have
appeared pointless. United States v. Washington , 12 F.3d 1128, 1138-
39 (D.C. Cir.), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3259 (U.S.
Oct. 3, 1994) (No. 93-8722). We find those circumstances present in
this case in regard to the Bailey issue.
In reviewing the sufficiency of the evidence to support a conviction
on direct appeal, this court must sustain the conviction "if there is
substantial evidence, taking the view most favorable to the Govern-
ment, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
Even construing the evidence in the light most favorable to the Gov-
ernment, we find it insufficient to sustain a conviction under the "use"
prong of § 924(c) under Bailey. It is undisputed that the gun in ques-
tion was found in a container in a truck after Moore was arrested. To
obtain a conviction for "using" a firearm under § 924(c), the Govern-
ment must show active deployment of the weapon. Bailey, 64
U.S.L.W. at 4041. There was no such deployment in this case.
We also find, however, that there is substantial evidence, taking the
view most favorable to the Government, to support Moore's convic-
tion for "carrying" a firearm in relation to a drug trafficking offense
in violation of § 924(c). Moore did not dispute the prosecutor's fac-
tual summary at his Fed. R. Crim. P. 11 hearing. In that hearing, the
prosecutor stated that evidence would establish that Moore drove the
truck (which he purchased for a girlfriend) on the day he was arrested,
that Moore purchased the gun, that he owned the nylon bag that con-
tained the gun, and that the bag also contained"owe sheets" in which
Moore logged his drug trafficking activities. In addition, the prosecu-
tor proffered a statement from Moore's girlfriend that the gun
belonged to Moore and that he placed it in the truck. Such evidence
that the defendant had a gun in a vehicle used to transport him to the
scene of a drug transaction is sufficient to support a conviction under
the "carry prong" of § 924(c). See United States v. Jones, 49 F.3d 628,
632 (10th Cir. 1995); United States v. Freisinger, 937 F.2d 383, 387
(8th Cir. 1991); United States v. Machado, 804 F.2d 1537, 1547 (11th
3
Cir. 1986); United States v. Barber, 594 F.2d 1242, 1244 (9th Cir.),
cert. denied, 444 U.S. 835 (1979).
For these reasons, we affirm Moore's convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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