Moore, Sherman v. United States , 188 F. App'x 494 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 24, 2006
Decided July 18, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-2762
SHERMAN MOORE, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 03 C 3806
UNITED STATES OF AMERICA,
Respondent-Appellee. Paul E. Plunkett,
Judge.
ORDER
A jury convicted Sherman Moore of multiple narcotics-related offenses and of
participating in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. §
848, as a leader of the Gangster Disciples street gang. The district court imposed
three concurrent terms of imprisonment—one twenty-year term and two life
terms—and we affirmed his convictions and sentences on direct appeal. See United
States v. Smith, 223 F.3d 554 (7th Cir. 2000). Moore subsequently filed a motion
under 28 U.S.C. § 2255, claiming that his trial and appellate counsel were
ineffective. The district court denied his motion. We granted a certificate of
appealability on the issue of whether Moore’s counsel was ineffective for failing to
raise certain challenges at trial. We now affirm.
No. 04-2762 Page 2
I. BACKGROUND
The facts surrounding the Gangster Disciples’ activities have appeared in
numerous decisions by this court, see e.g., Smith, 223 F.3d at 560-61; United States
v. Jackson, 207 F.3d 910, 913 (7th Cir. 2000); United States v. Irwin, 149 F.3d 565,
566-68 (7th Cir. 1998), and are set forth only as necessary to give context to Moore’s
collateral attack. The Gangster Disciples, led by Larry Hoover, was a gang
organized along territorial and hierarchical lines; below Hoover and his Board of
Directors were Governors and Assistant Governors, each of whom were responsible
for several Regents, who in turn were responsible for several coordinators and
soldiers. The leadership oversaw the coordination of the gang’s drug sales efforts,
and divided the gang’s Chicago-area market by territories. Governors supervised
their assigned territories and, along with Regents, often served as drug suppliers
for those beneath them. In late 1992, Moore was promoted from a Regent to a
Governor and his new position was reflected on “The List,” an official document that
laid out the Gangster Disciples’ hierarchy and membership.
The government began investigating the Gangster Disciples and their drug
distribution activities in 1989. In 1993 the government obtained a warrant
authorizing wiretap surveillance of conversations between Hoover and his visitors
at the Vienna Correctional Center in Vienna, Illinois. The district court granted the
last extension of this warrant on December 3, 1993 and the warrant expired on
January 2, 1994. But these recordings, known as the “Vienna tapes,” were not
sealed until February 4, 1994—32 days after the warrant expired.
In 1995, Moore, along with many of his fellow gang leaders, was indicted on
several drug trafficking offenses. During Moore’s trial, the government introduced
“The List” on which Moore was named as a Governor, and used the Vienna tapes to
lay the foundation for admission of this evidence. In addition, the government
presented the following evidence: in the spring of 1992 or 1993 Moore bought a half
kilogram of cocaine from a Gangster Disciple member; in 1993 Moore began
dressing better, drove a 1986 Cadillac convertible, took several cruises, and was
photographed wearing a tuxedo; between 1990 and 1993 Moore discussed narcotics
prices with a government informant and told an undercover officer that he was
interested in the secret compartments for hiding drugs that the officer had in his
car; in 1993, Moore ordered the disciplinary beating of a Regent; and in 1994, he
demanded money for a Gangster Disciple money-laundering scheme from a non-
Gangster Disciple drug dealer from whom he also attempted to buy two kilograms
of cocaine.
At trial, Moore’s defense counsel unsuccessfully moved to exclude portions of
the Vienna tapes as hearsay that did not fall within the co-conspirator exception.
Unlike counsel for many of Moore’s co-defendants, however, Moore’s counsel did not
No. 04-2762 Page 3
attempt to suppress the tapes based on the government’s failure to seal the
evidence immediately upon expiration of the warrant as required by 18 U.S.C. §
2518(8)(a). In the end, however, the district court denied every one of the co-
defendants’ motions to suppress the Vienna tapes. The jury found Moore guilty of
engaging in a narcotics conspiracy, engaging in a continuing criminal enterprise to
distribute narcotics, using minors to distribute drugs and avoid detection (two
counts), and distributing cocaine and crack (three counts). The district court
sentenced Moore to two life terms and twenty years’ imprisonment to run
concurrently.
We affirmed Moore’s convictions on direct appeal, holding, in relevant part,
that the principal leader, drug quantities, and drug value findings that are
prerequisites for imposing a life sentence under 21 U.S.C. § 848(b), are sentencing
factors that need not be proven to a jury beyond a reasonable doubt. Smith, 223
F.3d at 560-61. We also found that the ruling on the drug quantities underlying the
mandatory life sentences were not clearly erroneous. Id. While this decision was
still pending, however, the Supreme Court decided Apprendi v. New Jersey, 530
U.S. 466 (2000). Moore’s counsel did not seek leave to file a supplemental brief
challenging Moore’s sentence in light of that decision and the Supreme Court
denied Moore’s petition for writ of certiorari on June 28, 2002.
On May 30, 2003, Moore filed a motion pursuant to 28 U.S.C. § 2255 to
vacate his conviction and sentence. The district court denied this motion and his
motion for reconsideration but granted his request for a certificate of appealability
to argue whether his counsel was constitutionally ineffective in failing to seek
suppression of the Vienna tapes. We then granted Moore’s motion to expand his
certificate of appealability to also argue whether his appellate counsel was
constitutionally ineffective in failing to attack his sentence under Apprendi.
II. ANALYSIS
We review Moore’s ineffective assistance of counsel claims under the familiar
two-prong test laid out in Strickland v. Washington, 466 U.S. 668 (1984), which
requires proof that counsel’s performance fell below minimum professional
standards and that this deficient performance “prejudiced” the defendant. Id. at
687. In order to demonstrate “prejudice,” a defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694.
Moore first argues that his trial counsel was ineffective because, unlike his
co-defendants’ counsel, his counsel did not seek to suppress the Vienna tapes on the
grounds that they were sealed late in violation of 18 U.S.C. § 2518(8)(a). But failure
to raise a losing argument does not constitute ineffective assistance of counsel. See
No. 04-2762 Page 4
Whitehead v. Cowan, 263 F.3d 708, 731 (7th Cir. 2001). Here, because the district
court denied every motion to suppress the Vienna tapes each time one of Moore’s
co-defendants raised it, the court surely would have denied Moore’s motion as well.
And, as Moore acknowledges, we have upheld those denials. See United States v.
Jackson, 207 F.3d 910, 918 (7th Cir. 2000) (reh’g and reh’g en banc denied)
(accepting the government’s explanation for the delay in sealing the Vienna tapes);
see also United States v. Wilson, 237 F.3d 827, 831 (7th Cir. 2001) (reh’g and reh’g
en banc denied; cert. denied) (noting that the Jackson defendants “vigorously
sought a rehearing en banc, which no judge on this court found to be warranted”);
United States v. Hoover, 246 F.3d 1054, 1057 (7th Cir. 2001) (reh’g and reh’g en
banc denied; cert. denied) (same).
Similarly, we also reject Moore’s argument that his appellate counsel was
ineffective for failing to argue that the government forfeited its opportunity to
establish a satisfactory explanation for its delay in sealing the Vienna tapes.
Although we noted on direct appeal that the government forfeited its alternative
explanation for its sealing delay, we accepted its primary argument. See Jackson,
207 F.3d at 915-19. Thus, Moore’s case was not prejudiced by his appellate
counsel’s alleged deficient performance.
Moore next argues that his appellate counsel should have challenged the
constitutionality of all of his sentences under Apprendi, decided while his direct
appeal was pending. Apprendi held that “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.” Id. at 490. Moore maintains that because the
jury made no specific findings regarding certain sentencing factors, his sentence
violated his Sixth Amendment right to a jury trial. We disagree.
The jury found Moore guilty of participating in a CCE under 21 U.S.C. §
848(a), for which the sentencing range is 20 years to life. Under 21 U.S.C. § 848(b),
the district court was required to sentence Moore at the highest end of that
range—life—once it found by a preponderance of the evidence that he was an
organizer or leader of a CCE and that the government proved the threshold drug
sales.1 As we explained in Moore’s direct appeal, life is still considered a lawful
sentence under § 848(a). Thus, Apprendi is inapplicable in his case. See Smith, 223
F.3d at 566; see also United States v. Souffront, 338 F.3d 809, 832 (7th Cir. 2003)
1
The district court determined that Moore met the requirements of 21
U.S.C. § 848(b) because his role as a Governor in the Gangster Disciples qualified
him as an organizer or leader of the CCE and because the government proved that
the Gangster Disciples sold between $73 million and $109.5 million of cocaine
annually.
No. 04-2762 Page 5
(“Apprendi does not affect or alter calculations of relevant conduct or other
guideline determinations for sentences that fall within the statutory maximum.”);
United States v. Rivera, 282 F.3d 74, 77 (2d Cir. 2000) (reasoning that where a
defendant’s “life sentence did not exceed the statutory maximum applicable to the
CCE count, the fact that the district court relied on judicial findings . . . to increase
his sentence is irrelevant”); Hoover, 246 F.3d at 1058 (same). Moreover, any error
the district court might have made in sentencing Moore on the other counts is
harmless because the sentences in those counts could not have affected his life
sentence. United States v. Feinberg, 89 F.3d 333, 341 (7th Cir. 1996). Thus,
because any Apprendi challenge to Moore’s sentence would have been futile,
counsel’s failure to raise the claim did not prejudice Moore’s case and therefore did
not constitute ineffective assistance of counsel.
AFFIRMED.