United States v. John Moore

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:10-cr-00147-D-1)
Submitted: March 28, 2014 Decided: May 8, 2014
Before GREGORY and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Moore was charged with carjacking, 18 U.S.C.
§ 2119 (2012) (Count One), using and carrying a firearm, and
possessing the firearm, in furtherance of the carjacking, 18
U.S.C. § 924(c) (2012) (Count Two), and possessing a firearm
after having been convicted of a felony, 18 U.S.C. §§ 922(g)(1),
924 (2012) (Count Three). Moore pled guilty to Count Three, but
proceeded to trial on Counts One and Two. The jury found Moore
guilty on both counts. The court sentenced Moore to 180 months’
imprisonment on Count One, 120 months on Count Two, and sixty
months on Count Three, to run consecutively, for a total of 360
months’ imprisonment. On appeal, Moore challenges the
sufficiency of the evidence to convict him of carjacking and
carrying a firearm in furtherance of carjacking. He also argues
that the sentencing court erred in denying him a two-level
reduction for acceptance of responsibility. We affirm.
Moore first contends that he did not commit a federal
carjacking and therefore the jury’s verdict on Counts One and
Two cannot be sustained. He argues that the Government did not
prove that he specifically intended to cause death or serious
bodily injury at the time the vehicle was taken and that Moore
did not steal the car in the victim’s presence using force and
violence or intimidation.
2
We review de novo a district court’s denial of a
defendant’s motion for judgment of acquittal. United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005). A defendant
challenging the sufficiency of the evidence faces “a heavy
burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997) (citation and internal quotation marks omitted). We
must sustain a jury verdict if there is substantial evidence to
support it, viewing the evidence in the light most favorable to
the Government, assuming the credibility of the evidence, and
drawing all favorable inferences from the evidence. United
States v. Penniegraft, 641 F.3d 566, 571-72 (4th Cir. 2011).
The evidence supporting a conviction is “substantial” if “a
reasonable finder of fact could accept [the evidence] as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” Alerre, 430 F.3d at 693
(citation and internal quotation marks omitted).
To prove the offense of carjacking, in violation of 18
U.S.C. § 2119, the Government was required to establish that the
defendant “(1) with intent to cause death or serious bodily harm
(2) took a motor vehicle (3) that had been transported, shipped
or received in interstate or foreign commerce (4) from the
person or presence of another (5) by force and violence or
intimidation.” United States v. Foster, 507 F.3d 233, 246-47
(4th Cir. 2007) (citation and internal quotation marks omitted).
3
We have reviewed the transcript of the jury trial and we
conclude that sufficient evidence supports the jury’s verdict on
Counts One and Two.
Next, Moore argues that, even though he went to trial,
the district court should have awarded him a two-level
acceptance of responsibility reduction. In considering
challenges to a sentencing court’s application of the
Guidelines, this Court reviews factual determinations for clear
error and legal conclusions de novo. United States v. Burgess,
684 F.3d 445, 454 (4th Cir.), cert. denied, 133 S. Ct. 490
(2012). The determination of whether a defendant is deserving
of an acceptance of responsibility adjustment “is clearly a
factual issue and thus reviewable under a clearly erroneous
standard.” United States v. White, 875 F.2d 427, 431 (4th Cir.
1989).
Section 3E1.1 of the Guidelines Manual provides for a
two-level reduction for a defendant who “clearly demonstrates
acceptance of responsibility for his offense.” United States v.
Jeffery, 631 F.3d 669, 678 (4th Cir. 2011) (internal quotation
marks omitted). This Court has noted that “[a]lthough the
reduction is not intended to apply to a defendant who puts the
government to its burden of proof at trial, . . . going to trial
does not automatically preclude the adjustment.” Id. (internal
quotation marks and citation omitted); see USSG § 3E1.1 cmt.
4
n.2. “In rare situations, such as when the defendant goes to
trial to assert and preserve issues that do not relate to
factual guilt, . . . an adjustment may still be appropriate.”
Jeffery, 631 F.3d at 678 (internal quotation marks omitted).
“The sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility, and thus . . . the
determination of the sentencing judge is entitled to great
deference on review.” Elliott v. United States, 332 F.3d 753,
761 (4th Cir. 2003) (internal quotations and brackets omitted).
Although Moore pled guilty to Count Three, he denied
essential factual elements of his guilt as to Counts One and Two
and put the Government to its burden of proof. This case does
not present the rare circumstances in which a defendant has
clearly demonstrated acceptance of responsibility despite going
to trial. We therefore find that the district court did not
clearly err in denying an adjustment for acceptance of
responsibility.
Based on the foregoing, we affirm Moore’s criminal
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this Court and argument would not aid the decisional
process.
AFFIRMED
5