United States v. Mario Moran

FILED
APR 01 2015
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50269
Plaintiff - Appellee, D.C. No. 2:11-cr-00050-GAF-31
v.
MEMORANDUM*
MARIO MORAN, aka Lone, aka Lonely,
aka Lonely Boy, aka Johnny Moran, aka
Mario Rafael Moran,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted December 11, 2014
Pasadena, California
Before: WARDLAW and BERZON, Circuit Judges, and SMITH, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable William E. Smith, Chief United States District Judge
for the District of Rhode Island, sitting by designation.
Mario Moran (“Moran”) appeals his sentence of 144 months’ imprisonment
following a guilty plea to one count of racketeering conspiracy in violation of 18
U.S.C. § 1962(d). Moran challenges the district court’s determination that the
conduct underlying his racketeering conviction was a conspiracy to commit murder
and disputes the district court’s calculation of his Guidelines range based on this
determination. Moran further argues that his sentence was substantively
unreasonable. We affirm.
1. The district court did not err in finding that Moran knew of a conspiracy
by 38th Street Gang members to murder certain individuals when he provided
these gang members with firearms. According to the factual basis in Moran’s plea
agreement, in January 2010, Moran provided firearms to a 38th Street Gang
member knowing these weapons could be used to shoot at others. Moran contends
that the district court could not have found, based solely on that factual basis, that
Moran knew of gang members’ plan to murder certain individuals. However, the
district court did not rely solely on Moran’s plea agreement. The court also relied
upon cooperating witness statements and summaries of intercepted phone calls
corroborating those statements.
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Moran asserts that, beyond the plea agreement’s factual basis, evidence of
his knowledge of the murder conspiracy consisted of unreliable cooperator
statements and hearsay. The district court relied on testimony by cooperating
witness Isaac Alvarez from the trial of Moran’s co-defendants. Alvarez testified
that around January 2010, Moran attended a meeting with 38th Street Gang
members to discuss killing two individuals and, after providing Alvarez with two
firearms, joined him and others in the search for the targets. Alvarez was
subsequently caught by the police, and the firearms were confiscated.
Having observed Alvarez testify, the district court found him credible,
despite some inconsistencies, because his statements implicating Moran
accompanied his own admissions of guilt and were corroborated by intercepted
phone conversations. This rationale is more than sufficient to support the district
court’s reliance on Alvarez’s testimony, especially in light of the “special
deference” we give the sentencing court’s credibility determinations. United States
v. Santos, 527 F.3d 1003, 1009 (9th Cir. 2008) (quoting United States v. Haswood,
350 F.3d 1024, 1028) (9th Cir. 2003)).
Although Moran asserts that the district court based its findings on hearsay
evidence, the only hearsay upon which the court relied consisted of the summaries
of intercepted calls that Moran himself submitted at sentencing. Moran does not
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dispute this evidence’s reliability, but rather the district court’s conclusion from
it—that it showed Moran’s awareness of the murder conspiracy. In the calls, 38th
Street gang members discussed keeping Moran quiet about the loss of the firearms
he had provided, for which he sought compensation, by telling him the guns had
been “lost for a good cause.” Moran claimed that these gang members’ concern
over what to tell Moran showed that he did not know what had happened to the
guns. The district court disagreed with this interpretation and inferred that Moran
would not have sought compensation unless he knew they had been confiscated.
While the calls did not conclusively establish Moran’s knowledge, the district
court did not clearly err by finding that they corroborated Alvarez’s testimony. See
United States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc)
(sentencing court’s choice between potential interpretations of ambiguous evidence
cannot constitute clear error).
2. The district court did not abuse its discretion in applying the Guidelines to
the facts underlying Moran’s offense. Moran argues that the district court
procedurally erred in basing his Guidelines range on clearly erroneous facts. See
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (basing a
sentence on clearly erroneous facts is procedural error constituting an abuse of
discretion). As discussed above, however, the district court’s determination that
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Moran knew of the murder conspiracy was not clearly erroneous. Moran further
contends that the district court procedurally erred in incorrectly calculating his base
offense level. See id. (incorrect calculation of Guidelines constitutes procedural
error). We disagree.
Section 2E1.1 of the Guidelines applies to Moran’s racketeering conspiracy
conviction and advises a base offense level of either 19 or “the offense level
applicable to the underlying racketeering activity,” whichever is greater. U.S.S.G.
§ 2E1.1. The district court found that the underlying racketeering activity was
conspiracy to commit murder. Thus, the district court applied a base offense level
of 33. U.S.S.G. § 2A1.5.
The district court based its determination that Moran was, for sentencing
purposes, guilty of conspiracy to murder on its finding that Moran knew of the
conspiracy to murder two individuals when he provided 38th Street Gang members
with guns. Moran does not contest the existence of a murder conspiracy or that
Alvarez and other participants in the racketeering conspiracy committed overt acts
in furtherance of the murder conspiracy. Moran contends, however, that the district
court erred because it could not have found that he had the specific intent to
murder. This assertion overlooks the distinction between the intent necessary for
conviction and the use of relevant conduct for sentencing purposes.
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In determining conduct upon which to base a sentence, in the case of a
conspiracy, the district court must look at “all reasonably foreseeable acts . . . of
others in furtherance of the jointly undertaken criminal activity” and “all harm that
was the object of such acts.” U.S.S.G. § 1B1.3(a)(1)(B), (a)(3). The district court
found that Moran’s knowledge of gang members’ plot to kill two individuals when
he provided them with guns meant that Moran would have reasonably foreseen the
murder conspiracy during his participation in the racketeering conspiracy. Thus,
because under § 1B1.3(a)(1)(B) Moran’s relevant conduct encompassed the
reasonably foreseeable acts of his co-conspirators, there was no error in the district
court’s determination that the “underlying racketeering activity” under §
2E1.1(a)(2) was a conspiracy to murder.1 See United States v. Gamez, 301 F.3d
1138, 1147 (9th Cir. 2002) (where murder was reasonably foreseeable based on
defendant’s participation in a conspiracy, the district court appropriately used the
Guidelines section applicable to murder to determine the relevant offense level);
see also United States v. Williams, 434 F. App’x 585, 587-88 (9th Cir. 2011)
1
The district court treated the increase in Moran’s base offense level from
19 to 33 under U.S.S.G. § 2E1.1 and § 2A1.5 as a “sentencing factor [that] has an
extremely disproportionate effect on the sentence relative to the offense of
conviction,” thus requiring that the government prove the factor by clear and
convincing evidence. United States v. Herrera-Rojas, 243 F.3d 1139, 1143 (9th
Cir. 2011) (internal quotation marks omitted). Moran has not disputed the district
court’s use of the “clear and convincing” standard.
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(district court may sentence defendant convicted of conspiracy based on reasonably
foreseeable conduct of others in furtherance of the conspiracy). The district court
therefore did not abuse its discretion in applying U.S.S.G. § 2A1.5 to determine
Moran’s base offense level.
3. Moran’s sentence of 144 months’ imprisonment is not substantively
unreasonable. A sentence’s substantive reasonableness depends on the “totality of
the circumstances, including the degree of variance for a sentence imposed outside
the Guidelines range,” Carty, 520 F.3d at 993 (citing Gall v. United States, 552
U.S. 38, 51 (2007)). Moran argues that his sentence was substantively
unreasonable because the offense of his conviction, racketeering conspiracy,
carried a much lower Guidelines range than murder conspiracy, the offense upon
which the district court based its Guidelines calculation. However, as discussed
supra, there was no error in the factual basis for or calculation of Moran’s base
offense level, which established Moran’s Guidelines range. Moreover, Moran’s
144-month sentence was 24 months below the low end of his ultimate Guidelines
range. Thus, the sentence’s departure from the Guidelines range is not a factor
Moran can rely upon to advance his argument here.
The weight given various factors at sentencing under 18 U.S.C. § 3553(a) is
within the district court’s discretion. United States v. Gutierrez-Sanchez, 587 F.3d
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904, 908 (9th Cir. 2009). The district court considered both the Guidelines range
and other § 3553(a) factors, including Moran’s desire to be with his young
daughter, his history of drug addiction, his association with, rather than
membership in, the 38th Street Gang, his criminal record, the sentences of his co-
defendants, and the danger he poses to society. See United States v. Autery, 555
F.3d 864, 871 (9th Cir. 2009) (in determining substantive reasonableness,
deference must be given to a district court’s decision that § 3553(a) factors justify
a sentence); cf. United States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008)
(district court erred in failing to consider § 3553(a) factors). Thus, Moran’s
sentence was not substantively unreasonable, and the district court did not abuse its
discretion in sentencing him to 144 months’ imprisonment.
AFFIRMED.
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