United States v. Corion Leshon Moore

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-11389
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORION LESHON MOORE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 4:18-cr-00021-AKK-SGC-1
____________________
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2 Opinion of the Court 19-11389
Before JORDAN, ROSENBAUM, and BRASHER, Circuit Judges.
PER CURIAM:
Corion Leshon Moore appeals his convictions for possession
with intent distribute less than five grams of methamphetamine
and possession of a firearm after a felony conviction. He contends
that the district court erred by failing both to give a lesser-included-
offense instruction for simple drug possession and to instruct the
jury that the government was required to prove he knew he was a
felon when he possessed the firearm, as required by Rehaif v.
United States, 588 U.S. __, 139 S. Ct. 2191 (2019).
Moore also appeals the supervised-release component of his
sentence, arguing that the district court’s written amended judg-
ment imposed a special condition inconsistent with the oral pro-
nouncement of sentence. The government agrees and joins his re-
quest to vacate that portion of his sentence and remand for the
court to amend its judgment to match the oral sentence.
After careful review, we affirm Moore’s convictions, but we
vacate his sentence and remand for the district court to conform its
written judgment to its oral sentence.
I.
In a four-count indictment, the government charged Moore
with two counts of methamphetamine distribution and one count
of possession with intent to distribute five grams or more of meth-
amphetamine and detectable amounts of heroin, cocaine, and
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19-11389 Opinion of the Court 3
cocaine base, all in violation of 21 U.S.C. § 841(a)(1), and with one
count of possession of a firearm after a felony conviction, in viola-
tion of 18 U.S.C. § 922(g)(1). The government later filed an infor-
mation under 21 U.S.C. § 851, listing six prior convictions for con-
trolled-substance offenses. Moore pled not guilty and proceeded
to trial on all counts.
The relevant trial evidence established that Moore sold $40
of methamphetamine (less than one gram) to a confidential inform-
ant from his home on November 30, 2016, and December 7, 2016.
The confidential informant, who had previously purchased meth-
amphetamine from Moore, wore audio-video recording equip-
ment during the sales and was searched by law enforcement before
and after the sales.
Then, on December 8, 2016, the day after the second con-
trolled buy, police officers executed a search warrant at Moore’s
home and found 37.8 grams of methamphetamine in a bag on a
table next to a digital scale and a box of plastic bags. Moore had
used a digital scale and plastic bag to weigh and package the meth-
amphetamine during the controlled buys. The officers also found
three guns, amounts of marijuana, heroin, cocaine, and cocaine
base, and rolling papers for marijuana. At the scene, Moore
claimed that the items were his and that his girlfriend, who was
present at the home, did not know anything.
Law-enforcement witnesses testified that 37.8 grams of
methamphetamine was not a “user quantity,” but rather was con-
sistent with distribution, specifically sales to the day-to-day
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4 Opinion of the Court 19-11389
common user, if not “close to trafficking weight.” They further
explained that the digital scale, plastic bags, and firearms were also
consistent with distribution. Ordinarily, these witnesses stated,
scales and plastic bags were used to weigh out and package product
for distribution, while firearms were used for protection. But the
government witnesses did acknowledge that users also used digital
scales and that users may buy drugs in bulk for a discount if they
are able.
At trial, Moore requested an instruction on simple posses-
sion under 21 U.S.C. § 844(a) as a lesser-included offense of posses-
sion with intent to distribute under 21 U.S.C. § 841(a)(1). Defense
counsel maintained that the jury could find that the methamphet-
amine found in his home was “for personal use,” without addi-
tional evidence on that point, stating that “anything could happen.”
Ultimately, the district court declined to give the simple-pos-
session instruction. The court was unsure that simple possession
was a lesser-included charge, noting that it was not charged in the
indictment. More importantly, the court believed the charge was
unnecessary, stating that Moore would simply be acquitted if the
jury believed his argument that he possessed the drugs for personal
use. Defense counsel acknowledged the court’s point but re-
sponded that some jurors “might well agree with simple possession
because they think he should be held accountable.” Unpersuaded,
the court declined to instruct on simple possession but included
language making clear that possession with intent to distribute was
“for something other than for the defendant’s own personal use.”
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19-11389 Opinion of the Court 5
Regarding the gun-possession count, the district court gave
the pattern charge, which at that time didn’t require the jury to find
that Moore knew he had been convicted of a crime punishable by
more than a year of imprisonment when he possessed the firearms.
The jury found Moore guilty on all counts, but for Count 3
it determined that he possessed with intent to distribute less than
five grams of methamphetamine.
The case proceeded to sentencing, at which Moore was sen-
tenced to a total of 180 months in prison, based on a guideline
range of 151 to 188 months, and to 6 years of supervised release.
As to supervised release, the court imposed the standard conditions
and three special conditions that required Moore to cooperate in
DNA collection and to not use or possess any controlled substance
except as prescribed or be in a location where controlled substances
were illegally sold, used, distributed, or administered. The court
declined Moore’s request to recommend residential drug treat-
ment, finding nothing in the record “that suggests that he has a
drug problem.”
The district court entered judgment on April 5, 2019. Five
days later, acting sua sponte, the court amended its judgment to
include an additional special condition of supervised release requir-
ing Moore to participate in a drug-treatment program.1 Moore
now brings this appeal.
1 In full, the special condition provided as follows:
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6 Opinion of the Court 19-11389
II.
We start with the district court’s refusal to instruct the jury
on a lesser-included offense. We normally review a court’s refusal
to give a requested jury instruction for an abuse of discretion.
United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995). But
whether the defense produced sufficient evidence to sustain a par-
ticular instruction is generally a question of law which we review
de novo. United States v. Calderon, 127 F.3d 1314, 1329 (11th Cir.
1997). Ultimately, we may affirm the district court’s judgment on
any basis supported by the record. United States v. Gibbs, 917 F.3d
1289, 1293 n.1 (11th Cir. 2019).
You must participate in the Substance Abuse Intervention Pro-
gram (SAIP) (or comparable program in the district of supervi-
sion) under the administrative supervision of the probation of-
ficer, and you must comply with the requirements and rules of
the program. This program includes the following compo-
nents: (a) testing by the probation officer or an approved ven-
dor to detect prohibited drug or alcohol use; (b) substance
abuse education; (c) outpatient substance abuse treatment,
which may include individual or group counseling, provided
by the probation office or an approved vendor, and/or resi-
dential treatment; (d) placement in a community corrections
center (halfway house) for up to 270 days; and/or (e) home
confinement subject to electronic monitoring for up to 180
days. You must contribute to the costs of participation unless
the probation officer determines you do not have the ability to
do so.
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19-11389 Opinion of the Court 7
A.
The Federal Rules of Criminal Procedure allow a defendant
to be found guilty of any offense necessarily included in the offense
charged. Fed. R. Crim. P. 31(c)(1). A defendant is entitled to a jury
instruction on a lesser-included offense if (1) the charged offense
encompasses all the elements of the lesser offense; and (2) “the ev-
idence would permit the jury rationally to acquit the defendant of
the greater, charged offense and convict him of the lesser.” United
States v. Williams, 197 F.3d 1091, 1095 (11th Cir. 1999). The first
prong is met here because simple possession under 21 U.S.C.
§ 844(a) is a lesser-included offense of possession with intent to dis-
tribute under 21 U.S.C. § 841(a)(1). United States v. Carcaise, 763
F.2d 1328, 1334 n.20 (11th Cir. 1985).
Regarding the second prong, there must be “a disputed issue
of fact” concerning an element required for the greater offense but
not the lesser offense. United States v. Gutierrez, 745 F.3d 463, 470
(11th Cir. 2014). If a jury rationally could resolve the disputed issue
of fact so as to convict of the lesser offense, but not the greater,
then a lesser-offense instruction is proper. See id.; see Sansone v.
United States, 380 U.S. 343, 350 (1965). The instruction must be
justified by the evidence, however, and “cannot serve merely as a
device for defendant to invoke the mercy-dispensing prerogative of
the jury.” United States v. Snarr, 704 F.3d 368, 389 (5th Cir. 2013)
(cleaned up); see also United States v. Chapman, 615 F.2d 1294,
1299 (10th Cir. 1980); Kelly v. United States, 370 F.2d 227, 229 (D.C.
Cir. 1966). Thus, no lesser-offense instruction is required “absent
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8 Opinion of the Court 19-11389
any evidence to support the bare assertion of a defendant’s lawyer”
that an element is disputed. United States v. Whitman, 887 F.3d
1240, 1246–47 (11th Cir. 2018) (cleaned up).
In cases involving possession and distribution of drugs, a
substantial quantity of drugs may preclude a rational inference of
personal consumption. See, e.g., United States v. Hirst, 668 F.2d
1180, 1184 (11th Cir. 1982) (thousands of pounds of marijuana);
United States v. Tapanes, 685 F.2d 1291, 1292 (11th Cir. 1982)
(18,000 pounds of marijuana). But a more ambiguous drug quan-
tity does not necessarily entitle a defendant to a simple-possession
instruction. See, e.g., United States v. Wright, 131 F.3d 1111, 1115
(4th Cir. 1997) (rejecting the view that “a simple possession instruc-
tion is required in every case in which an intent merely to possess
cannot be ruled out based upon the drug quantity alone”). Where
the evidence strongly supports an inference that drugs were pos-
sessed with intent to distribute, the issue of intent is not “truly dis-
puted” “[a]bsent some evidence to counter the strong inference of
intent to distribute.” United States v. Rogers, 504 F.2d 1079, 1084
(5th Cir. 1974) (deriving such a “strong inference” from the vast
quantity of drugs involved); see United States v. Pirolli, 742 F.2d
1382, 1387 (11th Cir. 1984) (affirming the refusal to give a lesser-
offense instruction where “[t]here was no evidence that the pound
of cocaine was targeted for personal consumption”).
In Lee, for example, we affirmed the refusal to instruct the
jury on simple possession for a defendant found with 16.28 grams
of crack cocaine in his pocket, finding “no significant evidence
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19-11389 Opinion of the Court 9
presented to support the possibility that the crack cocaine in [his]
pocket was for his personal use.” 68 F.3d at 1273. We cited trial
evidence showing that sales to users generally occurred in tenths
of grams and that the defendant was listed as a distributor in the
records of a person who supplied distributors and not users. Id.Based on this evidence and “the lack of evidence regarding personal
use,” we concluded that no rational jury could have found the de-
fendant guilty of possession but acquitted him of possession with
intent to distribute. Id.This Court in Lee also distinguished the D.C. Circuit’s deci-
sion in United States v. Gibbs, 904 F.2d 52 (D.C. Cir. 1990), the pri-
mary case on which Moore relies in this appeal. In Gibbs, the court
held that an instruction on the lesser offense of simple possession
was warranted where five individuals jointly possessed 15.5 grams
of crack cocaine, and guns were found in the car. Roughly 10 of
the 15.5 grams of crack cocaine were found in the false bottom of
a salt container. Id. at 55. One of the containers had twelve rocks
of cocaine. Id. Of those, ten were wrapped. Id. Another 4.686
grams of crack cocaine was found in a bag exposed on the car floor,
between the passenger seat and the door frame. Id.Emphasizing that if the 15.5 grams were for personal use, it
would be divided among five people (thereby reducing the per-per-
son quantity), the court explained that the drug quantity was not
inconsistent with personal use and that the government offered no
“clear evidence unmistakably indicating an intent to distribute.”
Id. at 58–59 (“[T]he government presented no evidence, nor any
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10 Opinion of the Court 19-11389
expert testimony, that five adult men could not possibly consume
15.5 grams [.54 ounces] of cocaine.”) (brackets in original). The
court noted that the car contained no “trafficking tools beyond the
loaded weapons,” which were relevant evidence of intent to traffic
but not alone dispositive of such intent. Id. Although Gibbs in-
volved a similar drug quantity as Lee, this Court distinguished
Gibbs on the ground that the amount of cocaine “in conjunction
with the other evidence in this case would prevent a reasonable
jury from finding that [the defendant] did not intend to distribute.”
Lee, 68 F.3d at 1273. And this “additional evidence” of intent to
distribute warranted a different result. See id.B.
Here, the district court’s refusal to give a lesser-included-of-
fense instruction cannot be sustained on the grounds it offered. Be-
cause simple possession is a lesser offense of possession with intent
to distribute, Moore was entitled to that charge if the evidence jus-
tified it. See Pirolli, 742 F.2d at 1387 (“If the evidence justifies it,
the defendant is entitled to an instruction on the lesser offense.”).
That simple possession was not charged in the indictment, as the
court observed, is no barrier.
Moreover, “it is no answer to [a] demand for a jury instruc-
tion on a lesser offense to argue that a defendant may be better off
without such an instruction.” Keeble v. United States, 412 U.S. 205,
212 (1973). In theory, a jury must acquit if an element is not estab-
lished beyond a reasonable doubt, but in practice, where “the de-
fendant is plainly guilty of some offense, the jury is likely to resolve
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19-11389 Opinion of the Court 11
its doubts in favor of conviction.” Id. at 212–13. “[A] defendant is
entitled to a lesser offense instruction . . . precisely because he
should not be exposed to the substantial risk that the jury’s practice
will diverge from theory.” Id. at 213. Accordingly, the district
court erred in concluding that no lesser-offense instruction was
warranted on the ground that Moore would be acquitted if the jury
believed he possessed the methamphetamine for personal use.
Nevertheless, we affirm the district court on other grounds,
namely that the evidence did not justify an instruction on the lesser
offense of possession. See Gibbs, 917 F.3d at 1293 n.1; Williams,
197 F.3d at 1095.
Moore maintains that there was a disputed issue of fact con-
cerning whether he possessed the methamphetamine found in his
home for personal use or with the intent to distribute. He notes
that a government witness conceded that a drug user can buy
methamphetamine in bulk to save money, that the other items in
the home were not inconsistent with personal use, and that the
jury’s verdict on the quantity of methamphetamine he possessed
with intent to distribute shows that it “did not fully accept the gov-
ernment’s theory of guilt” and “may have compromised on quan-
tity instead of holding the government to its burden of proving in-
tent.”
Here, although the quantity of methamphetamine (37.8
grams) was not necessarily inconsistent with personal use to the
extent that a thrifty user could theoretically buy methampheta-
mine in bulk for future use (37.8 grams was clearly not an amount
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12 Opinion of the Court 19-11389
to be used immediately by a single person), we disagree with
Moore that a jury could rationally believe that he possessed the
drugs without the intent to distribute. First, the evidence showed
that a confidential informant, who had previously purchased meth-
amphetamine from Moore, twice bought small quantities of meth-
amphetamine from Moore at his home. Second, just one day after
the second controlled buy, officers conducting a search of Moore’s
home found 37.8 grams of methamphetamine next to a digital scale
and plastic bags, which Moore apparently had used to weigh and
package the drugs during the controlled buys, as well as several
guns. See United States v. Lucien, 61 F.3d 366, 375 (5th Cir. 1995)
(stating that evidence of sales being made from a residence where
drugs were found may support the refusal to instruct the jury on
simple possession). And third, law-enforcement witnesses testified
that 37.8 grams of methamphetamine was not a “user quantity” but
rather was consistent with distribution. The evidence, in sum-
mary, showed that Moore possessed a distributable quantity of
methamphetamine at his home, along with a digital scale, baggies,
and guns, the day after selling methamphetamine to a confidential
informant from the same location. Together, this evidence created
a strong inference that Moore possessed the methamphetamine
with intent to distribute.
Not only that, but the trial record lacks evidence “to counter
the strong inference of intent to distribute” and to support a claim
of personal use. See Lee, 68 F.3d at 1273; Rogers, 504 F.2d at 1084.
At best, government witnesses acknowledged that it was possible
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19-11389 Opinion of the Court 13
for a frugal drug user to buy in bulk and for digital scales to be used
for purposes other than distribution. But the jury heard no evi-
dence that Moore personally used methamphetamine or that any
items consistent with personal use by Moore were found in his
home. See, e.g., United States v. Levy, 703 F.2d 791, 792 (4th Cir.
1983) (relying in part on the presence of “four pipes customarily
employed for purposes of consuming the cocaine” to conclude that
a simple possession instruction was warranted). On the contrary,
the evidence showed that Moore in fact used the digital scale in this
case for distributing methamphetamine to the confidential inform-
ant. Because Moore’s claim of personal use was little more than a
“bare assertion” without evidentiary support, the court was not re-
quired to instruct the jury about the lesser offense of possession.
See Whitman, 887 F.3d at 1246–47; see also See United States v.
Harrison, 55 F.3d 163, 167–68 (5th Cir. 1995) (holding that hypo-
thetical testimony from a government agent that 49 grams of crack
cocaine was not necessarily inconsistent with personal use was not
enough in light of other unrebutted evidence of intent to distrib-
ute).
Moore’s reliance on the D.C. Circuit’s decision in Gibbs,
which of course is not binding, is misplaced. In that case, the court
held that a simple-possession instruction was justified where the
evidence showed that five individuals possessed 15.5 grams of co-
caine and guns and there was no “clear evidence unmistakably in-
dicating an intent to distribute.” Id. at 59. Divided by 5, 15.5 grams
comes out to roughly 3 grams per person. And unlike here, no
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14 Opinion of the Court 19-11389
distribution equipment or packaging was found in Gibbs. Id. at 55.
Nor was there any evidence that any of the five defendants had re-
cently sold crack cocaine to anyone.
Other circuits have likewise found simple-possession in-
structions warranted where the government relied on little more
than drug quantity to prove intent to distribute. See, e.g., United
States v. Hernandez, 476 F.3d 791, 799–800 (9th Cir. 2007) (posses-
sion instruction warranted where the government relied solely on
drug quantity—159 grams of methamphetamine—to support an
inference of intent to distribute); Lucien, 61 F.3d at 375–76 (reason-
ing that items found in conjunction with 16.48 grams of cocaine
base at a residence—guns, three foil wrappers, and $1,227 in cash—
were not inconsistent with personal use). But here, as in Lee, “[t]he
amount of [methamphetamine] in [Moore’s] possession in con-
junction with the other evidence in this case”—the controlled buys
from the same home, the use of distribution paraphernalia from
the home in the controlled buys, and the distribution paraphernalia
in close proximity to the methamphetamine—“would prevent a
reasonable jury from finding that [Moore] did not intend to distrib-
ute.” Lee, 68 F.3d at 1273 n.6.
Finally, that the jury found that Moore possessed with intent
to distribute less than five grams of methamphetamine does not
alter our conclusion. Our inquiry is an objective one based on what
a jury could rationally infer from the evidence. See Williams, 197
F.3d at 1095. What the real jury actually did is not directly relevant
to that inquiry, particularly in light of the “mercy-dispensing
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19-11389 Opinion of the Court 15
prerogative of the jury,” which is not an appropriate basis on which
to give a lesser-included-offense instruction. See Snarr, 704 F.3d at
389. And for the reasons we have already explained, we cannot say
that a rational jury could conclude that the methamphetamine in
Moore’s home was possessed solely for personal use.
For these reasons, we affirm for different reasons the district
court’s decision not to instruct the jury on the lesser offense of pos-
session. See Gibbs, 917 F.3d at 1293 n.1.
III.
At trial, the district court did not instruct the jury that, to
convict Moore of unlawful gun possession under § 922(g)(1), the
government was required to prove that, at the time he possessed
the firearm, he knew he had been convicted of a crime punishable
by more than one year of imprisonment. The parties agree that,
under the Supreme Court’s decision in Rehaif and this Court’s sub-
sequent decision in United States v. Reed, 941 F.3d 1018, 1021 (11th
Cir. 2019), this omission was an error that was plain for purposes
of plain-error review, which applies to this claim because it was
raised for the first time on appeal.
The parties disagree, however, on whether the Rehaif error
affected Moore’s substantial rights. See Greer v. United States, 593
U.S. __, 141 S. Ct. 2090, 2097 (2021) (holding that plain-error re-
view applies in this context and listing its requirements). To prove
an effect on substantial rights, “[Moore] has the burden of showing
that, if the [d]istrict [c]ourt had correctly instructed the jury on the
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16 Opinion of the Court 19-11389
mens rea element of a felon-in-possession offense, there is a ‘rea-
sonable probability’ that he would have been acquitted.” Id. A
defendant who has previously been convicted of a felony “faces an
uphill climb in trying to satisfy the substantial-rights prong of the
plain-error test based on an argument that he did not know he was
a felon,” for the simple reason that “[i]f a person is a felon, he ordi-
narily knows he is a felon.” Id.Here, Moore cannot show that any Rehaif error affected his
substantial rights. At trial, he stipulated that he had previously
been convicted of a felony, which, as we’ve noted, is itself substan-
tial evidence that he knew he was a convicted felon when he pos-
sessed the firearm in this case. See id. at 2097–98. Any residual
doubt is eliminated when we look to the record as a whole, which
contains undisputed information that Moore has numerous prior
felony convictions, including two convictions in 1998 which re-
sulted in his incarceration for over eight years. See id. at 2098 (stat-
ing that “an appellate court conducting plain-error review may
consider the entire record,” including information contained in a
presentence report). Because the record establishes that Moore
knew he was a felon at the time of his firearm offense, there is no
reasonable probability of an acquittal had the jury been properly
instructed.
IV.
Finally, the parties agree that the district court’s written
amended judgment conflicts with the oral pronouncement of the
conditions of Moore’s supervised release. In particular, the court’s
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19-11389 Opinion of the Court 17
amended judgment, entered sua sponte five days after the original
judgment and without notice or a hearing, added a new special
condition requiring Moore to complete a drug-treatment program.
When the district court’s oral pronouncement of the term
of supervised release conflicts with the written order of judgment,
the oral pronouncement controls. United States v. Bates, 213 F.3d
1336, 1340 (11th Cir. 2000). The remedy for a conflict between an
orally pronounced sentence and the written judgment is a limited
remand with instructions for the district court to enter an amended
judgment that conforms with its earlier pronouncement. United
States v. Chavez, 204 F.3d 1305, 1316 (11th Cir. 2000).
Here, the district court’s oral pronouncement of its sentence
did not include a special condition of supervised release requiring
Moore’s participation a drug-treatment program. In fact, the court
rejected defense counsel’s request to recommend a custodial drug-
treatment program, finding nothing in the record “that suggests
that he has a drug problem.” Because the written amended judg-
ment, which included that new special condition without comply-
ing with Fed. R. Crim. P. 32.1(c)(1), clearly conflicts with the oral
pronouncement, the oral sentence controls. See Bates, 213 F.3d at
1340. We therefore remand with instructions to conform the writ-
ten judgment to the oral pronouncement of the conditions of
Moore’s supervised release.
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18 Opinion of the Court 19-11389
V.
In sum, we affirm Moore’s convictions for possession with
intent to distribute methamphetamine and possession of a firearm
after a felony conviction. We vacate the amended judgment and
remand with instructions to conform the written judgment to the
oral pronouncement of the conditions of Moore’s supervised re-
lease.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED