United States v. Lamaar Moore ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3026
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Lamaar Moore
lllllllllllllllllllllDefendant - Appellant
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No. 18-3474
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kearnice C. Overton, also known as Kearnice Overton
lllllllllllllllllllllDefendant - Appellant
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No. 18-3732
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Angelo Johnson
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 27, 2019
Filed: January 7, 2020
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
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PER CURIAM.
Lamaar Moore, Kearnice Overton, and Angelo Johnson pleaded guilty to
offenses related to a drug conspiracy. They challenge their sentences on appeal,
arguing that the district court1 erred in calculating their offense levels under the U.S.
Sentencing Guidelines (U.S.S.G. or Guidelines). Overton also argues that he is
entitled to resentencing because the government breached the plea agreement. We
affirm.
I. Lamaar Moore
Moore pleaded guilty to conspiracy to manufacture, distribute, and possess
with intent to distribute at least 100 kilograms of a mixture and substance containing
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and
possession with intent to distribute less than 50 kilograms of a mixture and substance
containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D).
Before sentencing, Moore objected to the presentence report’s recommendation that
his base offense level be increased by three for his aggravating role in the offense,
see U.S.S.G. § 3B1.1(b), and by two for maintaining a premises for the purpose of
manufacturing or distributing controlled substances, see U.S.S.G. § 2D1.1(b)(12).
The district court overruled Moore’s objections and applied the enhancements.
Moore’s total offense level was 30, his criminal history category was III, and his
Guidelines sentencing range was 121 to 151 months’ imprisonment. The district
court varied downward, imposing a 108-month sentence on the conspiracy count and
a concurrent 60-month sentence on the possession count.
Moore argues that the district court clearly erred in finding that he had acted
as a manager or supervisor in the drug conspiracy. See United States v. Alcalde, 818
F.3d 791, 794 (8th Cir. 2016) (standard of review). Guidelines § 3B1.1(b) instructs
the district court to apply a three-level increase “[i]f the defendant was a manager or
supervisor . . . and the criminal activity involved five or more participants or was
otherwise extensive.” We have said that a defendant may be subject to the
enhancement even if he managed or supervised only one participant in a single
transaction. United States v. Irlmeier, 750 F.3d 759, 764 (8th Cir. 2014). A witness
testified at Moore’s sentencing hearing that he once overheard Moore direct his
girlfriend to obtain marijuana from a certain location and sell it at a certain price to
Moore’s customer. Moore acknowledges that his girlfriend sometimes sold marijuana
for him when he was traveling, but he contends that he did not control her actions
because they were participants in a joint enterprise. The district court’s finding to the
contrary is not clearly erroneous, however, because the evidence permits a finding
that Moore managed or supervised his girlfriend with respect to at least one
transaction.
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Moore next argues that the district court clearly erred in finding that he
maintained his residence for the purpose of distributing a controlled substance. See
United States v. Miller, 698 F.3d 699, 705 (8th Cir. 2012) (standard of review).
Moore shared the residence with his girlfriend. He claims that it was primarily their
family home and that there is “little evidence that the couple used the residence for
the business itself.” Moore’s Br. 11. Guidelines § 2D1.1(b)(12) instructs the district
court to apply a two-level increase for “maintain[ing] a premises for the purpose of
manufacturing or distributing a controlled substance.” For the enhancement to apply,
drug distribution “need not be the sole purpose for which the premises was
maintained, but must be one of the defendant’s primary or principal uses for the
premises, rather than one of the defendant’s incidental or collateral uses for the
premises.” U.S.S.G. § 2D1.1 cmt. n.17. We have held that the enhancement applies
“when a defendant uses the premises for the purpose of substantial drug-trafficking
activities, even if the premises was also [the] family home at the times in question.”
Miller, 698 F.3d at 707.2 Moore conceded that drug transactions occurred at his
residence. When the apartment was searched, officers seized nine empty one-pound
vacuum seal bags with marijuana residue, approximately two pounds of high-grade
marijuana, digital scales, and clear plastic baggies, which the district court found to
be “substantial indicia of high levels of trafficking at the home.” We conclude that
the district court did not clearly err in finding that Moore maintained his residence for
the purpose of distributing marijuana.
II. Kearnice Overton
Overton pleaded guilty to conspiracy to manufacture, distribute, and possess
with intent to distribute 100 grams and more of a mixture and substance containing
heroin and 100 kilograms and more of a mixture and substance containing marijuana,
2
Moore argues that United States v. Miller was wrongly decided, but “[i]t is a
cardinal rule in our circuit that one panel is bound by the decision of a prior panel.”
Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002) (per curiam).
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in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851. In determining
that Overton’s base offense level was 32, the presentence report attributed quantities
of heroin, marijuana, and cocaine to him. Overton objected, arguing that his plea
agreement prevented the government from presenting evidence of cocaine
distribution and that any cocaine distribution was not relevant conduct under U.S.S.G.
§ 1B1.3. The district court overruled Overton’s objections and determined that his
base offense level was 32, that his total offense level was 37, that his criminal history
category was VI, and that his Guidelines sentencing range was 360 months’ to life
imprisonment. The district court varied downward and imposed a 300-month
sentence.
Overton first argues that the district court erred in concluding that the
government did not breach the plea agreement by presenting evidence of cocaine
distribution. He claims that the government stipulated in the plea agreement that the
conspiracy involved only heroin and marijuana. We review de novo issues
concerning the interpretation and enforcement of a plea agreement. United States v.
DeWitt, 366 F.3d 667, 669 (8th Cir. 2004). “Plea agreements are contractual in
nature, and should be interpreted according to general contract principles.” Id.
Although the plea agreement specified heroin and marijuana as types of drugs
that would be used to calculate Overton’s Guidelines sentencing range, it did not
exclude other types of drugs from that calculation. Overton admitted that the object
of the conspiracy was to “manufacture, distribute, and possess with intent to distribute
controlled substances including marijuana and heroin.” The plea agreement stated
that the advisory Guidelines sentencing range would be “based upon factors
determined to be present in the case, which include, but are not limited to . . . [t]he
type and quantity of drugs involved in the offense.” The parties did not stipulate to
Overton’s base offense level, but instead agreed “that the conspiracy involved more
than 100 grams of heroin and more than 100 kilograms of marijuana the exact amount
of drugs to be attributed to the defendant (above the amount admitted here) will be
determined by the court at the time of sentencing based upon U.S.S.G. § 1B1.3.”
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Moreover, the plea agreement reserved to both parties the right to “make whatever
comment and evidentiary offer they deem appropriate at the time of sentencing . . . ,
provided that such offer or comment does not violate any other provision of this Plea
Agreement.” We conclude that the government did not violate any provision of the
plea agreement when it presented evidence that Overton distributed cocaine. See
United States v. Leach, 491 F.3d 858, 864 (8th Cir. 2007) (holding that the
government did not breach the plea agreement because it “did not advocate for
anything inconsistent with the stipulations of the plea agreement; it advocated for
something that was not resolved by the plea agreement”).
We disagree with Overton’s contention that our decisions in United States v.
Lara, 690 F.3d 1079 (8th Cir. 2012), and United States v. DeWitt, 366 F.3d 667 (8th
Cir. 2004), control here. In those cases, “we held that the Government breached a
plea agreement when it stipulated to a drug quantity and corresponding base offense
level and then initiated an effort at the sentencing hearing to obtain a higher drug
quantity and base offense level.” See United States v. Noriega, 760 F.3d 908, 911
(8th Cir. 2014). In this case, the government did not stipulate to a drug type or
quantity or to a base offense level. The parties merely agreed that the conspiracy
involved at least 100 grams of heroin and 100 kilograms of marijuana—the drug
types and quantities charged in the indictment—and allowed the district court to
determine the drugs and drug quantities to be attributed to Overton at sentencing. See
United States v. Guardado, 863 F.3d 991, 993 (8th Cir. 2017) (holding that the
government did not breach the plea agreement when it urged the district court to
sentence the defendant based on a quantity of drugs greater than the amount to which
the defendant stipulated in the factual basis statement of the plea agreement, because
the plea agreement did not specify the amount of drugs that would be used to
calculate the defendant’s sentencing range and it allowed both parties “to present at
sentencing any evidence and argument on issues not explicitly agreed to or decided
in the document”).
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Overton next argues that the district court erred in determining his base offense
level. He contends that the district court should not have included cocaine in its drug
quantity calculation because any cocaine distribution did not constitute relevant
conduct. According to Overton, the alleged cocaine distribution occurred well before
he entered into the conspiracy to distribute heroin and marijuana. Overton also
challenges the credibility of the confidential informants who told law enforcement
that Overton distributed cocaine after 2011. He notes that law enforcement found no
cocaine or cocaine residue in any of its searches.
The base offense level for Overton’s conspiracy conviction is based upon drug
quantity. See U.S.S.G. § 2D1.1(c). “[I]n a drug distribution case, quantities and
types of drugs not specified in the count of conviction are to be included in
determining the offense level if they were part of the same course of conduct or part
of a common scheme or plan as the count of conviction”—that is, if they were part
of the defendant’s relevant conduct. U.S.S.G. § 1B1.3 cmt. background. Factors to
be considered in determining whether uncharged conduct is part of a common scheme
or plan include the similarity, regularity, and temporal proximity of the charged and
uncharged conduct. U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). We review the district court’s
relevant conduct findings for clear error. United States v. Ault, 446 F.3d 821, 823
(8th Cir. 2006).
The district court did not clearly err in finding that Overton’s cocaine
distribution was relevant conduct. Overton admitted in his plea agreement that the
conspiracy to distribute marijuana and heroin began “[s]ometime prior to October of
2013.” Law enforcement officers testified at sentencing that confidential informants,
whom the officers found to be reliable, had purchased cocaine from Overton from
2011 to 2012 and from 2013 to early 2014. A witness testified that Overton had
supplied him with cocaine for distribution from 2011 until the witness was arrested
in 2013. The witness further testified that the conspiracy changed while he was in
prison. Upon his release in 2016, “[i]t was no longer crack cocaine and cocaine, it
was strictly marijuana.” Another witness testified that Overton had taught him how
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to cook cocaine into crack cocaine and that he had purchased cocaine from Overton
from 2009 until the witness’s arrest in 2011. The government’s evidence thus
showed that Overton’s conduct with respect to cocaine distribution and the charged
conspiracy involved some of the same participants and partly overlapped in time. The
record supports the court’s credibility findings, as well as its finding that Overton was
involved in an “ongoing criminal conspiracy to distribute narcotics,” in which the
drugs distributed “change[d] over time, but the players stayed the same.”
III. Angelo Johnson
Johnson pleaded guilty to conspiracy to manufacture, distribute, and possess
with intent to distribute at least 100 grams of a mixture and substance containing
heroin and less than 50 kilograms of a mixture and substance containing marijuana,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(D), and 846. Johnson
was sentenced to 200 months’ imprisonment. In determining Johnson’s Guidelines
sentencing range, the district court found that he was responsible for distributing
more than 1 kilogram of heroin; applied a two-level increase for possession of a
firearm, see U.S.S.G. § 2D1.1(b)(1); applied a three-level increase for his role in the
offense as a manager or supervisor, see U.S.S.G. § 3B1.1(b); and denied a three-level
reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1. Johnson’s total
offense level was 35, his criminal history category was IV, and his Guidelines
sentencing range was 235 to 293 months’ imprisonment. The district court varied
downward and imposed a 200-month sentence. Johnson challenges the district
court’s drug calculation, the application of the two enhancements, and the denial of
the reduction for acceptance of responsibility.
Johnson argues that the district court clearly erred in finding that he had
distributed more than one kilogram of heroin. See United States v. Harris, 908 F.3d
1151, 1153 (8th Cir. 2018) (standard of review). We disagree. One witness testified
that she purchased between one-half to one gram of heroin from Johnson every day
for two years. A second witness testified that he purchased one to two grams of
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heroin every day for two years. Using the conservative numbers, the court found that
the first witness had purchased 365 grams from Johnson and that the second had
purchased 730 grams. The government also presented evidence that Johnson
distributed other quantities of heroin. We thus conclude that the district court did not
clearly err in finding that Johnson distributed more than one kilogram of heroin. See
U.S.S.G. § 2D1.1 cmt. n.5 (“Where there is no drug seizure or the amount seized does
not reflect the scale of the offense, the court shall approximate the quantity of the
controlled substance.”).
Johnson next argues that the district court clearly erred in finding that he
possessed a firearm. See United States v. Anderson, 618 F.3d 873, 879 (8th Cir.
2010) (standard of review). Guidelines § 2D1.1(b)(1) instructs the district court to
apply a two-level increase “[i]f a dangerous weapon (including a firearm) was
possessed.” This enhancement “reflects the increased danger of violence when drug
traffickers possess weapons,” and it “should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected with the offense.”
U.S.S.G. § 2D1.1 cmt. n.11(A). At sentencing, a police sergeant testified regarding
Johnson’s arrest and the search of his residence.3 An informant reported that Johnson
had been holding a gun before his arrest. A pill bottle containing heroin, crack
cocaine, and alprazolam was found in the stairwell leading to the basement. A Glock
nine-millimeter pistol with an extended magazine and two additional magazines were
recovered from the basement of Johnson’s residence. The pistol had been buried in
3
The presentence report identified Johnson’s residence as being located in the
400 block of Ninth Street in Davenport, Iowa, where the firearm was found. In his
appellate reply brief, Johnson argues that the government did not prove that Johnson
lived at the Ninth Street address. The government was not required to offer evidence
that Johnson lived there, however, because Johnson did not object to the paragraph
in the presentence report identifying the Ninth Street address as his residence. See
United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008) (explaining that in
determining whether the government has proven the facts necessary to establish a
sentencing enhancement, the district court “may accept any undisputed portion of the
[presentence report] as a finding of fact” (quoting Fed. R. Crim. P. 32(i)(3)(A))).
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loose dirt, and officers noticed dirt on Johnson’s pants and cobwebs in his hair when
they arrested him. Two witnesses also testified that Johnson possessed firearms
during drug deals. The evidence thus supported the findings that Johnson possessed
a firearm and that it was not “clearly improbable” that the firearm was connected with
the offense.
Johnson contends that the district court clearly erred in finding that he managed
or supervised another participant in the drug conspiracy. Although he does not
dispute the evidence that his sister and an individual identified as “MellyMel”
sometimes delivered heroin after buyers placed orders with him, Johnson argues that
the government did not produce any evidence of supervision, management, or control.
A fair inference from the evidence presented is that Johnson instructed his sister and
MellyMel where to meet his customers and how much to collect from them, and we
thus conclude that the evidence is sufficient to support the district court’s finding that
Johnson acted as a manager or supervisor. See Alcalde, 818 F.3d at 794 (holding that
the district court did not err in applying a role enhancement based on evidence that
the defendant “directed the actions of two coconspirators by instructing them to
deposit drug proceeds and by instructing one of them to send photos of drug
packages”).
Finally, Johnson argues that the district court clearly erred in denying him a
three-level decrease for accepting responsibility under Guidelines § 3E1.1. United
States v. Fischer, 551 F.3d 751, 754 (8th Cir. 2008) (standard of review). The district
court denied the decrease because Johnson challenged the amount of drugs involved,
the manner in which they were distributed, and whether he possessed a firearm. The
evidence set forth above wholly discredited Johnson’s claim that he did not possess
the Glock nine-millimeter firearm. As the district court explained, firearms “are not
peripheral to drug conspiracies and it isn’t peripheral here.” Because Johnson falsely
denied or frivolously contested relevant conduct the court determined to be
true—particularly his possession of a firearm— the district court did not err in
concluding that he acted in a manner inconsistent with acceptance of responsibility.
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See U.S.S.G. § 3E1.1 cmt. n.1(A) (“A defendant who falsely denies, or frivolously
contests, relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility, but the fact that a defendant’s
challenge is unsuccessful does not necessarily establish that it was either a false
denial or frivolous . . . .”).
The judgments are affirmed.
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