United States v. Emanuel Moore, Jr. ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2328
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United States of America
Plaintiff - Appellee
v.
Emanuel Moore, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: October 19, 2020
Filed: December 16, 2020
[Unpublished]
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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
Appellant Emanuel Moore was a participant, with co-defendants, in an
expansive drug conspiracy which spanned three states and involved cocaine,
marijuana, and heroin. Moore pled guilty to one count of conspiracy to manufacture,
distribute, and possess with intent to distribute at least 100 grams of a mixture and
substance containing heroin and at least 100 kilograms of a mixture and substance
containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846.
After calculating the United States Sentencing Guidelines base offense level,
applying various offense level enhancements as well as reducing the offense level
for acceptance of responsibility, and applying the applicable criminal history score,
the Guidelines range was 262 to 327 months imprisonment. At sentencing, Moore
requested a downward variance to 150 to 160 months. After considering the
arguments of the parties the district court 1 varied downward and sentenced Moore
to 216 months imprisonment to be followed by five years of supervised release.
Moore appeals. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
Moore asserts on appeal that his sentence is substantively unreasonable,
contending that the downward variance granted by the district court is insufficient.
We review the substantive reasonableness of a sentence under a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). The district court was
required to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) and “[a]
district court abuses its discretion and imposes an unreasonable sentence when it
fails to consider a relevant and significant factor, gives significant weight to an
irrelevant or improper factor, or considers the appropriate factors but commits a clear
error of judgment in weighing those factors.” United States v. Green, 946 F.3d 433,
440 (8th Cir. 2019) (quoting United States v. Kreitinger, 576 F.3d 500, 503 (8th Cir.
2009)). Further, where, as here “the district court has sentenced a defendant below
the advisory guidelines range, ‘it is nearly inconceivable that the court abused its
discretion in not varying downward still further.’” United States v. McKanry, 628
F.3d 1010, 1022 (8th Cir. 2011) (quoting United States v. Moore, 581 F.3d 681, 684
(8th Cir. 2009)).
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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Moore makes the single claim on appeal that the district court considered an
improper factor by considering the heroin aspect of this drug conspiracy in its
sentencing decision. This is an untenable position. The district court is permitted to
consider the “nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1).
Moore offered no evidence at sentencing and did not object to the Presentence
Investigation Report (PSR), which attributed a considerable amount of heroin to him
and he understood that the unobjected-to portions of the PSR would be considered
as admitted. “A fact in a PSR to which the defendant has not specifically objected
is a fact admitted by the defendant.” United States v. Abrica-Sanchez, 808 F.3d 330,
334 (8th Cir. 2015) (citation omitted). Further, he agreed that the district court could
consider all the evidence it had received in the cases of Moore’s co-defendants,
including the evidence of the heroin possession and distribution aspect of the drug
conspiracy. We conclude that the district court did not consider an improper factor
and committed no abuse of discretion in sentencing Moore. See United States v.
Woods, 603 F.3d 1037, 1040 (8th Cir. 2010) (affirming sentence where district court
considered drug quantity under 18 U.S.C. § 3553(a)).
We affirm the judgment of the district court.
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