United States v. Monte Moore ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4796
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTE MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:12-cr-00104-AWA-LRL-1)
Submitted: August 20, 2014 Decided: September 5, 2014
Before DUNCAN and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Maureen Leigh White, Richmond, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Kevin P. Lowell, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Monte Moore of conspiracy to
distribute and to possess with intent to distribute cocaine and
cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846 (2012);
distribution of cocaine and cocaine base within 1000 feet of a
playground, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 860(a) (2012);
and possession with intent to distribute cocaine and cocaine
base, 21 U.S.C. § 841(a)(1), (b)(1)(C). After determining that
Moore was a career offender, the district court sentenced him to
262 months’ imprisonment for each conviction, to be served
concurrently. Moore now appeals, challenging the sufficiency of
the evidence supporting each conviction, the district court’s
decision to admit certain testimony, and his sentencing as a
career offender. For the reasons that follow, we affirm.
Moore first argues that the evidence was insufficient
to support his conspiracy and distribution convictions. We
review de novo the denial of a motion for a judgment of
acquittal. United States v. Hickman, 626 F.3d 756, 762 (4th
Cir. 2010). A jury verdict must by sustained when “there is
substantial evidence in the record, when viewed in the light
most favorable to the government, to support the conviction.”
United States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011)
(internal quotation marks omitted). “Substantial evidence is
evidence that a reasonable finder of fact could accept as
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adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Id. (alteration and internal
quotation marks omitted).
Our review of the record persuades us that substantial
evidence supports Moore’s conspiracy and distribution
convictions. In order to convict Moore of this drug conspiracy,
the evidence must have established an agreement between two or
more people to distribute cocaine and cocaine base, that Moore
had knowledge of the agreement, and that he knowingly and
voluntarily participated in the scheme. See United States v.
Hackley, 662 F.3d 671, 678 (4th Cir. 2011). A coconspirator
testified that Moore agreed to provide him with cocaine whenever
he needed it. Over the course of four months, Moore provided
this coconspirator with substantial amounts of cocaine and
cocaine base at regular intervals in amounts indicative of
further distribution by the coconspirator. This evidence of a
continuing relationship, repeated transactions, and substantial
drug quantities is sufficient to support the conviction. See
United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008).
Moore’s distribution conviction requires proof of his
knowing and intentional distribution of cocaine and cocaine
base. United States v. Randall, 171 F.3d 195, 209 (4th Cir.
1999). The Government presented ample evidence of the charged
conduct. Moore thus is entitled to no relief on his challenge
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to the sufficiency of the evidence regarding the conspiracy and
distribution convictions.
Moore also seeks to challenge the sufficiency of the
evidence supporting his possession with intent to distribute
conviction. However, Moore waived this claim by failing to
challenge the sufficiency of the evidence in either his oral or
written Fed. R. Crim. P. 29 motions. See United States v. Chong
Lam, 677 F.3d 190, 200 (4th Cir. 2012).
Moore next challenges the district court’s decision to
admit testimony regarding the conversation between a
confidential informant and Moore’s coconspirator during a
controlled purchase. Moore asserts that the informant’s
statements are inadmissible hearsay because the informant cannot
be a coconspirator and the coconspirator’s statements were
inadmissible because they were not made in furtherance of the
conspiracy.
“We review a trial court’s rulings on the
admissibility of evidence for abuse of discretion, and . . .
will only overturn an evidentiary ruling that is arbitrary and
irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir.
2011) (internal quotation marks omitted). Hearsay is a
statement not made by the declarant “while testifying at the
current trial or hearing and offered in evidence to prove the
truth of the matter asserted in the statement.” Fed. R. Evid.
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801(c)(1)-(2). While hearsay is generally inadmissible, Fed. R.
Evid. 802, a statement by a coconspirator is not hearsay if it
was made “during the course and in furtherance of the conspiracy
and is offered against the party.” United States v. Graham, 711
F.3d 445, 453 (4th Cir.) (internal quotation marks and citation
omitted), cert. denied, 134 S. Ct. 449 (2013); see also Fed. R.
Evid. 801(d)(2)(E).
“A statement by a co-conspirator is made in
furtherance of a conspiracy if it was intended to promote the
conspiracy’s objectives, whether or not it actually has that
effect.” Graham, 711 F.3d at 453 (internal quotation marks
omitted). A statement may be “in furtherance of the conspiracy
even though it is susceptible of alternative interpretations and
was not exclusively, or even primarily, made to further the
conspiracy, so long as there is some reasonable basis for
concluding that it was designed to further the conspiracy.”
United States v. Shores, 33 F.3d 438, 444 (4th Cir. 1994)
(internal quotation marks omitted).
We conclude that the coconspirator statements in
question were made in furtherance of the conspiracy to
distribute cocaine and cocaine base. The statements were made
after the confidential informant had initiated the drug
transaction. While the informant’s statements were not
admissible under this exception, United States v. Hackley, 662
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F.3d 671, 679 (4th Cir. 2011), they were offered to provide
necessary context to the coconspirator’s statements regarding
Moore, not for the truth of the matter asserted. We therefore
find no error in the district court’s admission of this
testimony.
Finally, Moore asserts that he was improperly
designated a career offender because his prior convictions were
not submitted to the jury and proved beyond a reasonable doubt.
As Moore concedes, this argument is foreclosed by the Supreme
Court’s decisions in Almendarez-Torres v. United States, 523
U.S. 224, 239-47 (1998), and Alleyne v. United States, 133 S.
Ct. 2151, 2163 (2013).
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the material before this Court and argument will
not aid the decisional process.
AFFIRMED
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