U.S. v. Moore
| Decision Date | 05 October 2009 |
| Docket Number | No. 08-1699.,08-1699. |
| Citation | 582 F.3d 641 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenta Raynard MOORE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Nils R. Kessler, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Sharon A. Turek, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. B. René Shekmer, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.
Before: CLAY, COOK, and KETHLEDGE, Circuit Judges.
Defendant Kenta Raynard Moore ("Moore") appeals the order of the United States District Court for the Western District of Michigan denying his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Moore contends that the district court improperly found that he had distributed at least 4.5 kilograms of cocaine base, thus making him ineligible for a reduction. For the following reasons, the district court's denial of a sentence reduction for Moore is REVERSED, and the case is REMANDED so that the district court may reconsider the merits of Moore's motion.
According to Moore's Presentence Investigation Report ("PSR"), a confidential informant for the Drug Enforcement Administration made a controlled purchase of 23.4 grams of crack cocaine from Moore on May 11, 1999. On September 13, 1999, a grand jury charged Moore in an indictment with one count of knowingly and intentionally distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). On November 18, 1999, Moore pled guilty to the single count.
Moore's PSR noted as part of its description of Moore's offense conduct that two other individuals who pled guilty to drug distribution gave statements to the DEA that they and Moore pooled money to purchase crack cocaine and powder cocaine "in kilogram quantities" from a supplier in Chicago. The PSR advised that "[the three defendants] paid anywhere from $20,500.00 to $24,000.00 per kilogram, and would purchase anywhere from two to three kilograms per month, sometimes as often as two to three times per month." The PSR also stated that in total, the two proffering defendants "estimated the group purchased between 180 to 300 kilograms of cocaine." (PSR at 4.) The PSR also stated that "[f]or computation purposes, Mr. Moore is being held responsible for at least 1.5 kilograms of cocaine base." (PSR at 5.) At the time of Moore's sentence, under the United States Sentencing Guidelines ("Guidelines"), the highest base offense level of 38 applied to a defendant distributing "1.5 KG or more of cocaine base." U.S.S.G. § 2D1.1(c) (1999).1
The PSR recommended a three-level reduction for acceptance of responsibility noting that Moore "has provided complete information to the government and entered a timely plea of guilty." (PSR at 6.) Moore admitted to the probation officer preparing the PSR that "his overall involvement in the distribution of drugs exceeded 1.5 kilograms of crack cocaine, although he could not be more specific." (PSR at 5-6.) After factoring in a three-level reduction for acceptance of responsibility, the PSR advised that Moore's base offense level was 35, and, stating that Moore had a Criminal History Category of III, recommended a Guidelines range of 210 to 262 months. On April 25, 2000, the government moved the court for a two-level downward departure pursuant to U.S.S.G. § 5K1.1, because Moore had provided substantial assistance to the government.
At Moore's sentencing hearing on May 1, 2000, his counsel informed the court that there were no factual inaccuracies in the PSR. The court found that "at least 1.5 kilograms of base cocaine are attributable to Mr. Moore[.]" Appellant's Br. Ex 4 at 5. The court granted the government's motion for a two-level downward departure, noting that Moore's recommended Guidelines range was now 168 to 210 months. The court then sentenced Moore to 168 months of imprisonment. On February 23, 2004, the district court granted the government's motion pursuant to Federal Rule of Criminal Procedure 35(b) to reduce Moore's sentence because he had testified in the trial of his drug supplier. Accordingly, the court reduced Moore's sentence to 135 months of imprisonment.
Effective November 1, 2007, the United States Sentencing Commission promulgated "Amendment 706," amending the Guidelines to reduce the base offense level for crack cocaine offenses by two offense levels. United States v. Poole, 538 F.3d 644, 645 (6th Cir.2008). After the enactment of Amendment 706, a defendant now had to be responsible for "4.5 [kilograms] or more of cocaine base," an increase from 1.5 kilograms in 2000, in order to receive an offense level of 38; a finding of "at least 1.5 [kilograms] but less than 4.5 [kilograms] would mandate a Guidelines offense level of 36." U.S.S.G. supp. to app. C, amend. 706 (Nov. 1, 2007), incorporated into U.S.S.G. § 2D1.1(c). Effective March 3, 2008, Amendment 706 was made retroactive. Poole, 538 F.3d at 645-46. On February 25, 2008, Moore filed a pro se motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), asserting that he was eligible for the reduction under Amendment 706.
On March 19, 2008, the United States Probation Office submitted a Sentence Modification Report ("SMR"). In a section entitled "Original Guideline Calculation as determined by the Court at Sentencing," the SMR states: (SMR at 1.) In a subsequent section entitled "Amended Guideline Calculation," the SMR states: (SMR at 2.) Under "Public Safety Factors," the SMR states that "Mr. Moore's involvement in cocaine sales was significant, being responsible for between 180 and 300 kilograms of cocaine." (SMR at 3.) Finally, in a section entitled "The defendant is ineligible for reduction in sentence for the following reason(s)," the SMR includes a checked box next to "Quantity used to drive guideline exceeds 4,500 grams[.]" (SMR at 4.) On April 10, 2008, Moore submitted a response objecting to the SMR.
On April 25, 2008, the district court denied Moore's motion in a two-paragraph order, in which it stated:
... [T]he motion is denied because defendant is ineligible for reduction in sentence because the quantity of drugs used to drive the guidelines exceeds 4,500 grams.
Defendant argues that the amount of drugs in which he was involved in the original offense conduct as reported in the Presentence Report is "not exact," "open to interpretation," and "speculative at best". However, even assuming for sake of argument without conceding the point, that defendant's argument is correct, it is clear that defendant raised no factual or legal objection to the Presentence Report. His collateral challenge to the amount of drugs stated in the Presentence Report almost 8 years after the fact, is too late. His failure to object at the time of sentencing stands as an admission of the fact. United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir.2005).
(ROA at 31.)
Moore timely appealed the denial of his motion for a reduction. (ROA at 32.)
"A motion for modification made under 18 U.S.C. § 3582(c)(2) is reviewed for an abuse of discretion." United States v. Carter, 500 F.3d 486, 490 (6th Cir.2007). "A district court abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact." United States v. Pugh, 405 F.3d 390, 397 (6th Cir.2005). This Court should reverse the district court's decision only if it is "firmly convinced that a mistake has been made." McCombs v. Meijer, Inc., 395 F.3d 346, 358 (6th Cir.2005). "When reviewing the district court's application of the Sentencing Guidelines, we review the district court's factual findings for clear error and mixed questions of law and fact de novo." United States v. May, 568 F.3d 597, 604 (6th Cir.2009).
Moore argued before the district court that he was entitled to a reduction in his sentence because the information contained in his initial PSR with respect to the quantity of crack he distributed "is not exact and is open to interpretation." (ROA at 14.) The district court denied Moore's motion for a modified sentence. The district court held that Moore could not contest the SMR's factual finding that he possessed more than 4.5 kilograms of crack cocaine because he did not object to the PSR at his original sentencing, and was therefore bound by its facts. The district court correctly stated that Moore is bound by the factual allegations in the PSR to which he did not object. See United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir.2005). However, Moore's PSR never stated that he was involved in possessing or distributing more than 4.5 kilograms of crack; the PSR stated only that "for computational purposes, Moore is being held responsible for at least 1.5 kilograms of cocaine base." (PSR at 5.)
Moreover, while the facts described in the offense conduct could have allowed the district court to find by a preponderance of the evidence that Moore was responsible for at least 4.5 kilograms of crack, the facts set forth in the PSR do not mandate such a finding. The PSR stated that DEA...
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