U.S. v. Moore

• Citation: 643 F.3d 451
• Decision Date: 01 June 2011
• Docket Number: No. 09–5935.,09–5935.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Martino MOORE, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

643 F.3d 451

UNITED STATES of America, Plaintiff–Appellee,

v.Martino MOORE, Defendant–Appellant.

No. 09–5935.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 21, 2011.Decided and Filed: June 1, 2011.

ARGUED: David M. Bell, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. Daniel T. French, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: David M. Bell, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. Daniel T. French, Assistant United States Attorney, Memphis, Tennessee, for Appellee.Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge. ^*

OPINION

THAPAR, District Judge.

Defendant Martino Moore, a four-time convicted felon, possessed a firearm one night in 2007. That event carried with it serious ramifications. It meant as an Armed Career Criminal he was subject to a mandatory minimum penalty of 180 months' imprisonment. Moore argues on appeal that the imposition of this mandatory minimum sentence, as applied to him, violates the Eighth Amendment. We disagree and thus affirm.

I.

On March 9, 2007, Memphis police responded to a call about an assault. At the scene, police interviewed Precious Jackson. She claimed that her boyfriend Moore beat her, pointed a firearm at her, and threatened to kill her. Two witnesses informed the officers that they had seen Moore beat Jackson and that he had a firearm. But neither witness saw Moore point the gun at Jackson. The police located Moore near the scene with the firearm, an AMT .22 caliber semi-automatic pistol, still in his possession. They arrested him without incident.

Moore explained that the fight erupted when Jackson took his cell phone. He claimed that he took the gun away from her during the fight, but he denied hitting or pointing the gun at her.

On February 15, 2008, a federal grand jury in the Western District of Tennessee indicted Moore for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Moore's attorney requested that Moore undergo a competency evaluation. On June 3, 2008, doctors at the Federal Medical Center in Kentucky diagnosed Moore with mild mental retardation ¹ but concluded that he was nevertheless competent to stand trial. The doctors found that Moore had a factual and rational understanding of the proceedings against him and retained the ability to consult with his attorney. Moore did not challenge these findings and later pleaded guilty under a written plea agreement.

Moore's Presentence Report listed two violent felonies and two serious drug felonies: (1) a 1994 conviction for aggravated burglary; (2) a 1997 conviction for criminal attempt to commit aggravated burglary; (3) a 2000 conviction for possession of crack cocaine with intent to manufacture, deliver, or sell; and (4) another 2000 conviction for possession of crack cocaine with intent to manufacture, deliver, or sell. PSR, ¶¶ 25, 26, 28, 30. As a result, he qualified as an “Armed Career Criminal” under U.S.S.G. § 4B1.4(b)(3)(A) and 18 U.S.C. § 924(e). He also received a four-level enhancement for being a felon in possession of a firearm in connection with another felony offense—aggravated assault. His guideline range was 188–235 months, with a statutory minimum of 180 months under § 924(e).

Moore objected to the four-level enhancement at the sentencing hearing. Because the United States could not locate Ms. Jackson to confirm whether Moore had in fact pointed the gun at her or hit her with the gun, it agreed that Moore's offense level should be reduced, with a new corresponding guideline range of 151–188 months. But under § 924(e), the mandatory minimum sentence still stood at 180 months. Moore's attorney told the court that he knew of no grounds permitting the court to go below the 180–month minimum. The district court judge remarked that, if he had the authority to do so, he would consider imposing a sentence below the statutory minimum due to the circumstances of the offense and Moore's mental deficiencies. R. 49 at 32. He nevertheless acknowledged that he did not possess that authority and proceeded to sentence Moore to 180 months' imprisonment. Moore filed a timely appeal.

II.

Moore argues that his mandated minimum sentence of fifteen years' imprisonment violates the Eighth Amendment's ban on cruel and unusual punishment. At the heart of his argument is the belief that a unique mitigating factor—his reduced culpability resulting from mental retardation—transforms an otherwise constitutional sentence into an unconstitutional one. In United States v. Tucker, we held that “[i]mposing a mandatory minimum sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment.” 204 Fed.Appx. 518, 521 (6th Cir.2006). We see no reason to depart from Tucker. Further, all of the circumstances of this case, including Moore's mildly diminished mental capacity, convince us that the district court's sentence was not grossly disproportionate to the crime committed.

A.

As an initial matter, “[a] constitutional challenge to a sentence is a question of law and reviewed de novo.” United States v. Jones, 569 F.3d 569, 573 (6th Cir.2009) (quoting United States v. Marks, 209 F.3d 577, 583 (6th Cir.2000)). While it appears that Moore may not have raised this issue below, we need not decide whether plain error review is appropriate because his argument fails even under de novo review.

B.

The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Moore is correct that the Supreme Court has interpreted the Eighth Amendment to contain a “narrow proportionality principle.” Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); United States v. Layne, 324 F.3d 464, 474 (6th Cir.2003). But that interpretation “does not require strict proportionality between crime and sentence.” Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring) (citing Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)); see also Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (Eighth Amendment “prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime”); Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (Eighth Amendment prohibits “grossly disproportionate” sentences); Weems v. United States, 217 U.S. 349, 371, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (Eighth Amendment prohibits “greatly disproportioned” sentences) (quoting O'Neil v. Vermont, 144 U.S. 323, 340, 12 S.Ct. 693, 36 L.Ed. 450 (1892) (Field, J., dissenting)). Nor does it require consideration of a defendant's mitigating factors. Harmelin, 501 U.S. at 995, 111 S.Ct. 2680. Rather, “only an extreme disparity between crime and sentence offends the Eighth Amendment.” Layne, 324 F.3d at 474 (quoting Marks, 209 F.3d at 583).

While we have traditionally not engaged in proportionality review when the sentence is a term of years, see United States v. Thomas, 49 F.3d 253, 261 (6th Cir.1995), Justice Kennedy's concurrence in Harmelin has slightly opened the door to such analysis, see United States v. Hughes, 632 F.3d 956, 960 n. 2 (6th Cir.2011). This analysis begins with a comparison of the gravity of the offense and the severity of the sentence. Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring). The comparison here simply does not lead to an inference of gross disproportionality. Moore's prior qualifying sentences included two violent felonies involving aggravated burglary and two involving distribution of crack cocaine. On the night of his arrest in the present matter, witnesses reported seeing Moore beat his girlfriend while holding a firearm. His were not victimless, nonviolent crimes. Despite all this, Moore actually received the minimum sentence under the statute. And “[a] sentence within the statutory maximum set by statute generally does not constitute ‘cruel and unusual punishment.’ ” Layne, 324 F.3d at 474 (quoting Austin v. Jackson, 213 F.3d 298, 302 (6th Cir.2000)).

Contrary to Moore's claim, this sentence did account for his mental retardation. Even though the guidelines authorized a sentence up to 188 months, the statute imposed no such cap. See Custis v. United States, 511 U.S. 485, 487, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (noting that § 924(e) authorizes the imposition of a life sentence). Here, the district court sentenced him at the very bottom of the guideline range, expressly noting Moore's condition while pronouncing his sentence. R. 49 at 31–32. But even if the district court had not taken account of his mental retardation, the imposition of a mandatory sentence without considering mitigating factors does not, as Moore claims, run afoul of the Eighth Amendment. In Harmelin v. Michigan, the Supreme Court upheld a mandatory life sentence for the possession of 650 grams of cocaine even where the state court gave no consideration to the defendant's felony-free record. 501 U.S. at 995, 111 S.Ct. 2680. The Court specifically rejected the petitioner's “required mitigation” claim, refusing to extend the “individualized capital-sentencing doctrine” to a mandatory sentence of life in prison without parole. Id. The argument for requiring consideration of the defendant's mitigating factors is no stronger here.

The acknowledgment in Atkins v. Virginia that mentally retarded defendants are “categorically” less culpable than average criminals likewise fails to render this statutory penalty unconstitutional. 536 U.S. 304, 316, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). As this Court recognized in Tucker, Atkins dealt specifically with the death penalty. Tucker, 204 Fed.Appx. at 521–22. And, as this and many other courts have held, death is simply different. Getsy v. Mitchell,...