United States v. Moore ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-60205
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY TERRELL MOORE; CURTIS E. MOORE,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Mississippi
(1:03-CR-34-3)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Curtis Moore and Jimmy Moore appeal
their convictions and sentences. We affirm.
I.
Curtis Moore (“Curtis”)
The jury found Curtis guilty of distributing in excess of 5
grams of a substance containing cocaine base (crack cocaine) (Count
1), distributing in excess of 50 grams of a substance containing
crack cocaine (Count 2), distributing in excess of 5 grams of a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
substance containing crack cocaine (Count 3) and an unspecified
amount of a substance containing cocaine hydrochloride (powder
cocaine) (Count 4). The district court sentenced Curtis to a 151-
month term of imprisonment and five-year term of supervised release
on each count of conviction, to be served concurrently.
Curtis argues that the evidence was insufficient to support
his convictions on Counts 3 and 4 because there was no evidence
regarding essential elements of those offenses, viz., the specific
amounts of the controlled substances charged in those counts. The
government sought an enhanced penalty on Count 3 pursuant to 21
U.S.C. § 841 (b)(1)(B), so the drug quantity to support this
enhancement had to be charged and proved to the jury beyond a
reasonable doubt. United States v. Doggett, 230 F.3d 160, 164-65
(5th Cir. 2000). The drug quantity for Count 3 was charged in the
indictment; the jury was instructed that it had to find that the
mixture or substance containing crack cocaine weighed in excess of
5 grams; and DEA Forensic Chemist Enrique Pinero testified that the
substance in government exhibit 9 was a mixture of both cocaine
base and cocaine hydrochloride and that the mixture and substance
weighed 85.4 grams. The weight of a controlled substance refers to
the entire weight of any mixture or substance containing a
detectable amount of the controlled substance. United States v.
Cartwright, 6 F.3d 294, 303 (5th Cir. 1993). Based on this
evidence, a reasonable juror could find beyond a reasonable doubt
that the mixture and substance Curtis distributed or possessed with
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intent to distribute weighed “in excess of 5 grams” and
“contain[ed] a detectable amount of cocaine base.” See id. Thus,
the evidence is sufficient to support Curtis’s conviction on Count
3. The government did not seek an enhanced penalty on Count 4, so
the drug quantity did not need to be charged or proved to the jury.
See Doggett, 230 F.3d at 165.
Curtis likewise contends that there was insufficient evidence
to establish a two level enhancement under U.S.S.G. § 3B1.1(c) for
his role as a leader or manager of at least one other person. We
review the district court’s interpretation and application of the
sentencing guidelines de novo and its factual findings for clear
error. United States v. Angeles-Mendoza, ___ F.3d ___, No. 04-
50118, 2005 WL ___ , slip op. at 3 (5th Cir. Apr. 26, 2005). The
evidence shows that on the occasions charged in Count 2, 3, and 4
of the indictment, Curtis negotiated the sale of drugs to
confidential informant Willie Ewell and obtained the drugs, which
either he or Armond Moore (“Armond”) delivered to Ewell. Curtis
directed co-defendant Armond to deliver drugs to Ewell, to retrieve
“buy money” from Ewell, to count it, and to give the money to
Curtis. The day after the transaction alleged in Count 5, Curtis
had the “buy money” from that transaction. The record shows that
the district court’s finding that Curtis was the leader in the drug
trafficking crimes and asserted control or influence over at least
one participant is not clearly erroneous. See U.S.S.G. § 3B1.1(c);
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U.S.S.G. § 3B1.1, comment (n. 1); United States v. Jobe, 101 F.3d
1046, 1065 (5th Cir. 1996).
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Curtis
contends —— for the first time on appeal —— that certain sentencing
guidelines increases violated his Sixth Amendment rights because
the factors on which those increases were based were neither found
by the jury beyond a reasonable doubt nor admitted by him. To the
extent that Curtis’s sentence was enhanced based on a quantity of
drugs and an offense role found by the district court that went
beyond the facts found by the jury, there was obvious error.
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).
Curtis has not, however, “demonstrated that the sentencing judge ——
sentencing under an advisory scheme rather than a mandatory one ——
would have reached a significantly different result.” Id. at 521.
Thus, he has not shown that the error affected his substantial
rights.
II.
Jimmy Terrell Moore (“Jimmy”)
The jury found Jimmy guilty of aiding and abetting the
distribution of in excess of 50 grams of a substance containing
crack cocaine (Count 5). The government notified Jimmy of its
intent to seek an enhanced sentenced pursuant to 21 U.S.C. §
841(b)(1)(A) based on his previous felony drug convictions. The
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district court sentenced Jimmy to life imprisonment and a 10-year
term of supervised release.
Jimmy argues that his mere presence at the crime scene,
possible knowledge that a drug transaction was taking place, and
his role as a mere lookout are insufficient to sustain his
conviction. This argument is unavailing. The evidence shows that
Jimmy was an active participant in the drug distribution charged.
He participated in the venture on February 26, 2003, by acquiring
and negotiating the sale of four ounces of crack cocaine to Ewell
for $3,500. He wanted to see the money and had Ewell count it in
front of him. Jimmy was seen going in and out of the house where
the money and drugs were exchanged and was seen leaving the house
with Van Jones. Jimmy told Ewell to deal with “Van,” and he
entered the house with Ewell and Van Jones for the purposes of
weighing and transferring the drugs and money. Jimmy stood at the
door inside the house as a lookout. It can reasonably be inferred
that he stood watch to ensure that these activities would not be
interrupted or detected. Thus, Jimmy sought to make the venture
successful. The substance transferred that day contained crack
cocaine and had a net weight of 106.1 grams. The evidence was
sufficient for the jury to find beyond a reasonable doubt that
Jimmy aided and abetted the distribution of in excess of 50 grams
of cocaine base.
Jimmy also argues that the district court erred in admitting,
over his hearsay objection, the tape of the drug transaction on
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which Van Jones’s voice is heard as the testimony of a
co-conspirator under Rule 801(d)(2)(E) of the Federal Rules of
Evidence. We will not address whether the district court abused
its discretion by admitting the statements because a review of the
transcript shows that their admission was harmless beyond a
reasonable doubt. See Hafdahl v. Johnson, 251 F.3d 528, 539-40
(5th Cir. 2001). As this is non-testimonial hearsay, the Sixth
Amendment is not implicated. See Crawford v. Washington, 541 U.S.
36, 68 (2004). Before the tape was played, the jury had already
heard Ewell’s testimony that he negotiated the drug deal with
Jimmy, that Jimmy told him to complete the deal with Van, and that
Jimmy stood guard while Ewell and Van weighed the drugs, counted
the money, and exchanged each. The tape of Van’s statements is
largely inaudible, and the statements were not repetitive of
Ewell’s testimony, did not contradict that testimony, and were not
important in the government’s case against Jimmy. There is no
reasonable possibility that Van’s statements on the tape had a
“substantial impact” on the jury’s verdict. Any error in the
admission of those statements is harmless. See United States v.
Williams, 957 F.2d 1238, 1242 (5th Cir. 1992); United States v.
Evans, 950 F.2d 187, 191 (5th Cir. 1991).
Jimmy also contends that (1) the statute mandating enhancement
of his sentence to life imprisonment, 21 U.S.C. § 841(b)(1), is
unconstitutional because the sentence is grossly disproportionate
to the circumstances of his case in violation of the Eighth
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Amendment, and (2) the case should be remanded because the district
court mistakenly believed that it had no authority to consider
whether the sentence was grossly disproportionate in light of
mitigating factors. Measured against the Rummel v. Estelle, 445
U.S. 263 (1980), benchmark, Jimmy’s sentence is not grossly
disproportionate. See United States v. Gonzales, 121 F.3d at 944,
928 (5th Cir. 1997). In Rummel, the Supreme Court upheld a life
sentence following a conviction for obtaining $120.75 by false
pretenses, pursuant to a “recidivist statute” providing a mandatory
sentence of life imprisonment for any defendant convicted of three
felonies. The Court so ruled after concluding that the sentence
was not so grossly disproportionate as to offend the Eighth
Amendment. Rummel, 445 U.S. at 284-85. Jimmy’s prior convictions
are more serious than the crimes that resulted in a life sentence
for the defendant in Rummel. Although Jimmy, unlike the defendant
in Rummel, is not eligible for parole, this difference from Rummel
is directly related to the severity of Jimmy’s prior convictions
and the severity of the instant offense, viz., distribution of more
than 100 grams of crack cocaine. Thus, Jimmy has not made a
threshold showing that his sentence is grossly disproportionate.
See also Harmelin v. Michigan, 501 U.S. 957, 965-66 (1991)
(upholding finding life sentence without possibility for parole
against a defendant convicted of possessing more than 650 grams of
cocaine not grossly disproportionate). Neither has he shown that
the district court had discretion to apply the proportionality test
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set forth in Solem v. Helm, 463 U.S. 277, 292 (1983), or to
consider any mitigating factors before imposing the statutory
mandatory sentence. Accordingly, Jimmy has not shown that the
district court’s belief that it lacked such discretion is error,
plain or otherwise.
In sum, the convictions and sentences of both Defendants-
Appellants are, in all respects,
AFFIRMED.
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