United States v. Moreta

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-12-2009
USA v. Moreta
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4309
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Moreta" (2009). 2009 Decisions. Paper 1871.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1871
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4309
_____________
UNITED STATES OF AMERICA
v.
PEDRITO SANTIAGO MORETA,
also known as TRU,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 06-cr-00096)
District Judge: Honorable Eduardo C. Robreno
_______________
Submitted Under Third Circuit LAR 34.1(a)
February 6, 2009
Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.
(Filed February 12, 2009)
_______________
OPINION OF THE COURT
_______________
_______________
*Honorable Alan D. Lourie, Circuit Judge of the United States Court of Appeals
for the Federal Circuit sitting by designation.
LOURIE, Circuit Judge.
Pedrito Moreta seeks to appeal the District Court’s order of judgment sentencing
him to 421 months of incarceration. For the reasons set forth below, we will affirm.
I. Discussion
On March 7, 2006, a federal grand jury returned an indictment of Moreta for five
counts, two of which involved using and carrying, and aiding and abetting the use and
carrying of, a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). The
two counts, Count Three and Count Five of the indictment, involved two attempted
robberies that occurred on the same day, one of a Brinks armored truck and the other of a
check cashing station, respectively. During the Brinks truck robbery, Moreta was alleged
to have used a can of Mace® while an accomplice held a firearm; during the check
cashing station robbery, Moreta was alleged to have held a firearm himself. A jury
convicted Moreta of all charges on July 25, 2007.
On November 8, 2007, the District Court sentenced Moreta to 37 months of
incarceration on Counts One, Two, and Four, to run concurrently; 84 months on Count
Three; and 300 months on Count Five. The sentences for Counts Three and Five were to
run consecutively to each other and to those for Counts One, Two, and Four, for a total
sentence of 421 months of incarceration, followed by five years of supervised release.
On appeal, Moreta makes two arguments. First, he argues that the evidence was
insufficient for the jury to find him guilty of Count 3 because he did not use or carry a
firearm himself during the armed truck robbery and did not know that his accomplice was
going to use a firearm. Second, Moreta argues that the District Court erred by sentencing
2
him to a mandatory 25-year consecutive sentence for committing a “second or
subsequent” conviction under 18 U.S.C. § 924(c)(1)(C) because both convictions, on
Counts Three and Five, stemmed from the same indictment and were in effect issued
simultaneously. We will address each argument in turn.
When a defendant fails to file a timely motion for acquittal under Rule 29(c) of the
Federal Rules of Criminal Procedure, as is the case here, we review a claim of
insufficiency of evidence under a plain error standard. United States v. Wolfe, 245 F.3d
257, 260-61 (3d Cir. 2001). “A conviction based on insufficient evidence is plain error
only if the verdict ‘constitutes a fundamental miscarriage of justice.’” United States v.
Thayer, 201 F.3d 214, 219 (3d Cir. 1999) (quoting United States v. Barel, 939 F.2d 26, 37
(3d Cir. 1991)).
It is clear that sufficient evidence was presented at trial to support the conviction of
Moreta on Count Three. We have held that an individual who does not personally use or
carry a firearm may still be found guilty of violating 18 U.S.C. § 924(c)(1) on an aiding
and abetting theory if the actions of the defendant who did not use or carry a firearm
“were sufficiently ‘intertwined with, and his criminal objectives furthered by’ the actions
of the participant who did carry and use the firearm.” United States v. Gordon, 290 F.3d
539, 547 (3d Cir. 2002) (quoting United States v. Garth, 188 F.3d 99, 113 (3d Cir. 1999)).
In this case, the government presented evidence that Moreta had advance knowledge of
the plan to use a gun, as his co-defendants testified that the plan to rob the truck was
discussed several times in his presence. It was not, therefore, plain error to conclude that
3
Moreta’s actions were sufficiently intertwined with, and his criminal objectives furthered
by his accomplice’s use of a gun. See id.
Furthermore, the evidence indicated that Moreta sprayed the Mace® after his
accomplice pointed a gun at the truck’s passenger. Even if Moreta did not have advance
knowledge of the plan to use a firearm, his continued participation after the gun was
being used is enough to support an aiding and abetting conviction. See United States v.
Price, 76 F.3d 526, 529-30 (3d Cir. 1996). Moreta also concedes that the government
presented overwhelming facts to convict him of conspiracy to rob the Brinks truck.
Under Pinkerton v. United States, Moreta is liable for all reasonably foreseeable acts of
his co-conspirators in furtherance of the conspiracy. 328 U.S. 640, 647-48 (1946). Given
his involvement in both attempted robberies and his own use of a gun during the check
cashing station robbery, Moreta could have reasonably foreseen his accomplice’s use of a
gun during the Brinks truck robbery. Thus, sufficient evidence supported Moreta’s
conviction on Count Three.
Turning to Moreta’s second argument, the District Court’s ruling that 18 U.S.C.
§ 924(c)(1)(C) required a sentence of at least 25 additional years in prison, consecutive to
any sentences imposed for other offenses, is one of statutory interpretation. As such, it is
subject to plenary review. United States v. Randolph, 364 F.3d 118, 121 (3d Cir. 2004).
18 U.S.C. § 924(c)(1)(C) states that a minimum 25-year sentence is required for “a
second or subsequent conviction” under 18 U.S.C. § 924(c)(1). Moreta argues that
§ 924(c)(1)(C) was intended to act as a recidivist statute, whereby a defendant would
4
have to be convicted of the first offense before committing the second, and here his
convictions on Counts Three and Five were in effect simultaneous. As Moreta himself
acknowledges, however, this argument was explicitly rejected by the Supreme Court in
Deal v. United States, 508 U.S. 129 (1993). (Appellant’s Br. 15.) In Deal, the Supreme
Court held that § 924(c)(1)(C) did not require the second conviction to occur after the
first conviction was final, and thus the defendant, who was convicted of six separate
offenses under § 924(c)(1), was subject to the enhanced punishment for a second or
subsequent conviction, even though all of his convictions occurred at the same time. 508
U.S. at 135. Here, Moreta was convicted of two separate offenses under § 924(c)(1)
which were prosecuted together, just as in Deal. Moreta also acknowledges that we have
repeatedly adopted Deal’s reasoning when faced with the same issue and that here he is
arguing the position of the dissent in Deal. (Appellant’s Br. 15-17.) It is clear that we are
bound by Deal, and its holding is on point. Accordingly, Moreta’s statutory interpretation
argument must fail.
II. Conclusion
For the reasons stated above, we will affirm the District Court’s order sentencing
Moreta to 421 months of incarceration.
5