United States v. William Moore

FILED
NOT FOR PUBLICATION MAY 08 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10297
Plaintiff - Appellee, D.C. No. 2:00-cr-00034-WBS-1
v.
MEMORANDUM *
WILLIAM ANTHONY MOORE, AKA
Whipp,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted April 18, 2012
San Francisco, California
Before: KOZINSKI, Chief Judge, N.R. SMITH and CHRISTEN, Circuit Judges.
We affirm the judgment revoking William Moore’s supervised release and
the sentence the district court imposed upon revocation.
1. Moore’s admission to the sale and possession of controlled substances
charges at his admit or deny hearing was non-hearsay evidence of his supervised
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
release violation, therefore we need not determine whether the summary in the
violation petition violated his confrontation rights. See United States v. Verduzco,
330 F.3d 1182, 1185–86 (9th Cir. 2003); United States v. Comito, 177 F.3d 1166,
1170 (9th Cir. 1999).
2. The violation petition gave Moore sufficient notice of the alleged
violation of supervised release. The petition notified Moore that the alleged new
law violation—possession of controlled substances with intent to
distribute—violated the terms of his supervised release. See United States v.
Havier, 155 F.3d 1090, 1092 (9th Cir. 1998).
3. The district court did not commit procedural error by failing to apply the
Fair Sentencing Act (FSA) retroactively. The FSA does not operate retroactively
to reduce the underlying offense from a Class A to a Class B felony. See United
States v. Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011) (per curiam). The district
court properly considered the advisory policy statements amended by the FSA and
then rejected them. See United States v. Tadeo, 222 F.3d 623, 626 (9th Cir. 2000).
4. The district court did not commit procedural error by failing to
adequately explain the sentence. The record shows that the district court properly
discussed and addressed the sentencing factors enumerated in 18 U.S.C. § 3583(e).
See United States v. Hammons, 558 F.3d 1100, 1104 (9th Cir. 2009).
5. Finally, we cannot conclude that the 54-month sentence, which was
within the recommended Guidelines range, was substantively unreasonable on this
record. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
AFFIRMED.