United States v. Keith Moore , 683 F.3d 927 ( 2012 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    Nos. 11-2801/2802
    ___________
    United States of America,             *
    *
    Plaintiff - Appellee,      *
    * Appeal from the United States
    v.                              * District Court for the Eastern
    * District of Missouri.
    Keith Dwayne Moore,                   *
    *
    Defendant - Appellant.     *
    ___________
    Submitted: March 12, 2012
    Filed: July 9, 2012
    ___________
    Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
    ___________
    MELLOY, Circuit Judge.
    Keith Dwayne Moore appeals from his sentence of 264 months' imprisonment
    for his convictions for attempting to manufacture methamphetamine, being a felon
    in possession of a firearm, and attempting to escape from a correctional institution.
    Moore alleges procedural error in the district court's calculation of the offense level,
    its refusal to award Moore a one-point reduction of his offense level for timely notice
    of an intent to plead guilty, and its lack of Federal Rule of Criminal Procedure 32(h)
    notice before imposing the sentence. We find no error on these issues. However, we
    remand to the district court for an explanation of the reasons for the two-month
    upward variance from the Guidelines range of 210–262 months' imprisonment.
    I
    On December 3, 2010, a Missouri State Highway Patrol Trooper pulled Moore
    over for a traffic violation. Moore initially reduced the speed of his car, but then
    accelerated and drove away from the trooper. After a short while, Moore abandoned
    his car and continued to flee from the trooper on foot, during which the trooper saw
    a blue object in Moore's hands. The trooper eventually subdued and arrested Moore,
    and upon a search, found the blue object to be a box that contained a Smith and
    Wesson Model .22-caliber semi-automatic pistol, two loaded magazines, and a box
    of ammunition. The trooper also found materials in Moore's car sufficient to
    manufacture two grams of methamphetamine.
    Moore was subsequently indicted in the Eastern District of Missouri for one
    count of attempting to manufacture methamphetamine and one count of being a felon
    in possession of a firearm. While these proceedings were pending, Moore was
    housed in Cape Girardeau County Jail in Missouri. During his incarceration, Moore
    attempted to escape by dying his jail uniform, loosening bolts from a shower curtain
    rod, and using the rod with a blanket in an attempt to remove a window bar. Moore
    did not succeed in bending the window bar but did cause some damage to the jail
    facilities. Following the escape attempt, Moore was indicted for attempting to escape
    from custody, a charge to which he initially pleaded not guilty. However, on May 2,
    2011, two weeks before the scheduled trial date, Moore notified the district court that
    he would waive his right to a trial and plead guilty on all three charges.
    At a subsequent sentencing hearing, the district court determined that an
    offense level of 32 and a criminal history category of VI applied. The Guidelines
    sentencing range was therefore 210–262 months' imprisonment. The offense level
    was based on United States Sentencing Guidelines § 4B1.4(b)(3), which imposes an
    offense level of 34 for armed career criminals who "used or possessed the firearm or
    ammunition in connection with . . . a controlled substance offense." The district court
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    then granted Moore a two-level reduction for acceptance of responsibility pursuant
    to U.S.S.G. § 3E1.1(a), which resulted in the final offense level of 32. It did not grant
    a further one-level reduction under § 3E1.1(b) for timely notification of a guilty plea
    because the government did not move for such a reduction. Moore's criminal history
    category of VI was based on his status as an armed career criminal under 
    18 U.S.C. § 924
    (e)(1) and U.S.S.G. § 4B1.4(a)(3), which applies that label and category when
    a defendant has three or more previous convictions for a violent felony, a serious drug
    offense, or both. Moore met this definition based on a series of convictions over
    many years, including several for burglary and assault.
    The district court sentenced Moore to 264 months' imprisonment. This
    sentence comprised 240 months' imprisonment for the charges of attempting to
    manufacture methamphetamine and being a felon in possession of a firearm, plus a
    60-month term of imprisonment for attempting to escape from custody, 24 months of
    which was to run consecutively to the 240-month term. However, in imposing this
    264-month sentence, the court noted: "I believe that a sentence within the Guideline
    range of 210 to 262 months would be sufficient but not greater than necessary to
    achieve the goals of the federal sentencing laws."
    II
    A
    Moore argues first that the district court erred in applying a base offense level
    of 34 because its conclusion that he possessed a firearm in connection with a
    controlled substance offense was incorrect. Moore asserts that he carried materials
    sufficient only to manufacture a "small personal use amount of methamphetamine"
    and that the district court should therefore have held the government to a higher
    standard of proof for showing the gun was used in connection with the controlled
    substance offense. This Court reviews a district court's interpretation of sentencing
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    guidelines, as a pure legal question, de novo, United States v. Howard, 
    413 F.3d 861
    ,
    865 (8th Cir. 2005), and its finding of facts for clear error, United States v. Annis,
    
    446 F.3d 852
    , 855 (8th Cir. 2006).
    Under U.S.S.G. § 4B1.4(b)(3)(A), a base offense level of 34 applies if "the
    defendant used or possessed the firearm or ammunition in connection with . . . a
    controlled substance offense, as defined in § 4B.2(b)." Moore is correct that this
    Court has applied different definitions for the term "in connection with" in situations
    where the defendant possessed the controlled substance at home for his own personal
    use rather than in situations where the defendant carried a controlled substance into
    the public or possessed an amount indicating an intention to distribute. Where the
    defendant held only a small amount of drugs for personal use, the standard for
    showing a connection is more stringent: the government must prove "at a minimum,
    the firearm had a purpose or effect with respect to the other felony offense because
    its presence facilitated or had the potential to facilitate the offense, as opposed to
    being the result of mere accident or coincidence." United States v. Dalton, 
    557 F.3d 586
    , 589 (8th Cir. 2009) (internal marks omitted). However,
    when a drug user chooses to carry his illegal drugs out into public with
    a firearm, there are many ways in which the weapon can facilitate the
    drug offense and dangerously embolden the offender. Thus a finding of
    the requisite connection in this situation is consistent with the purpose
    of § 2K2.1(b)(5) [and § 4B1.4(b)(3)(a)] and cannot be clearly erroneous
    except, perhaps, in the exceptional circumstance recognized in
    Application Note 3 to § 2D1.1—if "it is clearly improbable that the
    weapon was connected with the offense."
    United States v. Regans, 
    125 F.3d 685
    , 687 (8th Cir. 1997); see also Howard, 
    413 F.3d at 865
     ("In connection with" has the same meaning in U.S.S.G.
    §§ 4B1.4(b)(3)(a) and 2K2.1(b)(5).).
    -4-
    Even assuming that Moore possessed the methamphetamine manufacturing
    materials solely for his personal use, the district court did not err in determining the
    firearm was connected to the controlled substance offense. Moore chose to carry his
    illegal drugs into the public while possessing a firearm, and it was not clearly
    improbable that the weapon was connected with the offense. Further, the district
    court actually applied the higher evidentiary standard for which Moore argues,
    finding that the gun facilitated this controlled substance offense:
    The circumstances that are based on the facts that the parties have
    stipulated I believe reasonably lead to the conclusion that Mr. Moore did
    possess the firearm and the ammunition in connection with the drug
    crime. The firearm and ammunition were connected to the crime if for
    no other reason that they would have or could have facilitated Mr.
    Moore's escape from the officer, if he had chosen to use the firearm.
    Clearly, it was readily accessible to him. All he had to do was
    open the box and take it out. And, as I said before, the fact that he took
    the box from the car when he fled, suggests the firearm had some value
    to him and some potential use in facilitating his drug trafficking activity.
    This factual finding was not clearly erroneous, and the district court did not commit
    procedural error in assigning Moore a base offense level of 34.
    B
    Moore next argues that the district court erred in refusing to deduct a third
    point from his offense level for "timely notifying authorities of his intention to enter
    a plea of guilty." See U.S.S.G. § 3E1.1(b). "We will not disturb a district court's
    decision to deny or grant a credit for acceptance of responsibility unless that decision
    is clearly erroneous. As with other findings of fact, the district court is in a unique
    position to evaluate a defendant's acceptance of responsibility." United States v.
    Searcy, 
    233 F.3d 1096
    , 1102 (8th Cir. 2000) (internal citations omitted).
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    Under U.S.S.G. § 3E1.1(b), the government may move to reduce a defendant's
    offense level by an additional point for acceptance of responsibility if the defendant's
    notification of an intent to plead guilty is sufficiently timely to permit "the
    government to avoid preparing for trial and . . . the government and the court to
    allocate their resources efficiently." The comments clarify that generally, the notice
    of a defendant's intention to plead guilty "will occur particularly early in a case."
    U.S.S.G. § 3E1.1(b), cmt. n. 6. This is to effectuate the purposes of the Guideline by
    allowing "the government [to] avoid preparing for trial and the court [to] schedule its
    calendar efficiently." Id.
    Moreover, the commentary states that "[b]ecause the Government is in the best
    position to determine whether the defendant has assisted authorities in a manner that
    avoids preparing for trial, an adjustment under subsection (b) may only be granted
    upon a formal motion by the Government at the time of sentencing." Id. Our cases
    show that the government's refusal to file a § 3E1.1(b) motion "must be rationally
    related to a legitimate governmental end, and the district court's failure to grant a
    §3E1.1(b) reduction must not be clear error." United States v. Smith, 
    422 F.3d 715
    ,
    726 (8th Cir. 2005) (internal citations omitted).
    Here, Moore filed his intention to plead guilty on May 2, 2011, two weeks
    before his trial was scheduled to begin, and about three months after his initial
    indictment. The government was not irrational and the district court did not commit
    clear error in determining that the timing of Moore's notice of intention to plead
    guilty did not permit the government and court to allocate its resources efficiently.
    There was no procedural error in the court's refusal to award this point.
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    C
    Moore's third challenge is that the district court erred by failing to give advance
    notice of its intent to impose an upward departure. Under Federal Rule of Criminal
    Procedure 32(h),
    Before the court may depart from the applicable sentencing range on a
    ground not identified for departure either in the presentence report or in
    a party's prehearing submission, the court must give the parties
    reasonable notice that it is contemplating such a departure. The notice
    must specify any ground on which the court is contemplating a
    departure.
    However, Rule 32(h) applies only to departures and not to variances. United States
    v. Foy, 
    617 F.3d 1029
    , 1035 (8th Cir. 2010). When a district court imposes a
    variance, Rule 32(h) does not require advance notice. 
    Id.
    Here, the district court imposed a variance rather than a departure. Because,
    as the district court correctly observed, there was no "reason for a departure based on
    any provision of the Sentencing Guidelines," any deviation from the Guidelines range
    instead represented a variance. Therefore, the fact that the court did not provide
    advance notice was not error.
    D
    Moore's final argument is that the 264-month sentence is substantively
    unreasonable. Before we reach that issue, however, we note that the district court
    imposed a sentence of 264 months' imprisonment on Moore, which is two months in
    excess of the upper end of the Guidelines range. When a district court imposes a
    variance, it "must consider the extent of the deviation and ensure that the justification
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    is sufficiently compelling to support the degree of the variance." United States v.
    Richart, 
    662 F.3d 1037
    , 1053 (8th Cir. 2011) (internal quotation marks omitted).
    Here, however, the district court did not acknowledge that its sentence
    exceeded the Guidelines range. Rather, it concluded, "I believe a sentence within the
    Guideline range of 210 to 262 months would be sufficient but not greater than
    necessary to achieve the goals of the federal sentencing laws." Because the district
    court did not explain why it varied from the Guidelines range, or even note that such
    a variance occurred, we are uncertain as to whether the district court misspoke and
    intended to impose a 262-month sentence or whether it did intend to vary upward by
    two months. Accordingly, we remand for further explanation, and we do not reach
    the final issue of this appeal, whether the sentence the district court imposed was
    substantively reasonable.
    ______________________________
    -8-
    

Document Info

Docket Number: 11-2801, 11-2802

Citation Numbers: 683 F.3d 927, 2012 U.S. App. LEXIS 13901, 2012 WL 2685069

Judges: Melloy, Smith, Shepherd

Filed Date: 7/9/2012

Precedential Status: Precedential

Modified Date: 11/5/2024