851 F.3d 666 (7th Cir. 2017), 16-1991, United States v. Moore

Docket Nº:16-1991
Citation:851 F.3d 666
Opinion Judge:ROVNER, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NORVELL MOORE, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Barry Jonas, Assistant U.S. Attorney, Brian Sully Wallach, Assistant U.S. Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL. For NORVELL MOORE, Defendant - Appellant: Gregory T. Mitchell, Attorney, LAW OFFICE OF GREGORY T. MITCHELL, P....
Judge Panel:Before POSNER, FLAUM, and ROVNER, Circuit Judges. POSNER, Circuit Judge, dissenting.
Case Date:March 15, 2017
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

In 2010, Moore stole a BMW after showing the driver a gun. He was captured by Chicago police after he crashed into another vehicle during a high-speed chase. A jury was unable to reach a verdict on a charge of carjacking, 18 U.S.C. 2119, but convicted him of carrying a firearm during and in relation to a crime of violence, 18 U.S.C. 924(c)(1)(A) and possession of a firearm following a felony... (see full summary)

 
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Page 666

851 F.3d 666 (7th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

NORVELL MOORE, Defendant-Appellant

No. 16-1991

United States Court of Appeals, Seventh Circuit

March 15, 2017

         Submitted December 7, 2016 [*]

Page 667

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:10-cr-00896-1 -- Charles P. Kocoras, Judge.

         For UNITED STATES OF AMERICA, Plaintiff - Appellee: Barry Jonas, Assistant U.S. Attorney, Brian Sully Wallach, Assistant U.S. Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

         For NORVELL MOORE, Defendant - Appellant: Gregory T. Mitchell, Attorney, LAW OFFICE OF GREGORY T. MITCHELL, P.C., Homewood, IL.

         Before POSNER, FLAUM, and ROVNER, Circuit Judges.

          OPINION

Page 668

          ROVNER, Circuit Judge.

          Norvell Moore is before us for the third time, challenging the sentence he received following a retrial on two of the three offenses with which he was charged in connection with a 2010 carjacking. He was acquitted of both of those offenses, and then re-sentenced on a felon-in-possession conviction ( see 18 U.S.C. § 922(g)(1)) that we affirmed in a prior appeal. See United States v. Moore, 763 F.3d 900, 914 (7th Cir. 2014) (" Moore I " ). Unhappily for Moore, the district judge imposed the same sentence--240 months--that he had been given after the first trial, when he was convicted of both the felon-in-possession charge and a second weapons charge. Moore contends that the sentence is flawed for two reasons. First, he argues that because he was originally sentenced to a term of 120 months on the felon-in-possession conviction (to be served consecutively with an identical term on the companion firearm conviction), the district judge was obliged to impose the same term on that charge when he was re-sentenced. Second, although it is now clear that, as an armed career criminal, he was and is subject to a minimum term of 180 months on the felon-in-possession charge, the government waived any reliance on that enhanced minimum term by not pursuing it when he was originally sentenced. Beyond these two arguments, Moore pursues no challenge to the substantive reasonableness

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of the sentence imposed. We find neither of the arguments he does make to be meritorious and affirm the sentence.

         I

.

         In 2010, Norvell Moore stole a BMW sedan from its driver after showing her that he was armed with a gun. He was captured by Chicago police after a high-speed chase during which he crashed the BMW into another vehicle. A federal grand jury charged him with carjacking, in violation of 18 U.S.C. § ; 2119; using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § ; 924(c)(1)(A); and possession of a firearm following a felony conviction, in violation of section 922(g)(1).

         Moore was first tried on these charges in 2013 before Judge Grady, but the jury was unable to reach a verdict on the carjacking charge. When jurors, at the conclusion of their first day of deliberations, informed the judge that they were not making progress and asked to be released for the day, Judge Grady asked them whether they had reached agreement as to any of the charges. When they responded that they had, the judge solicited a partial verdict and the jury returned verdicts of guilt on both the using-or-carrying charge and the felon-in-possession charge. Deliberations thereafter continued on the carjacking charge, but the jury was never able to achieve unanimity and the court ultimately declared a mistrial on that charge and, on the government's motion, dismissed it without prejudice.

         When he sentenced Moore on the using-and-carrying and felon-in-possession charges, Judge Grady concluded that a total sentence of 240 months was a reasonable sentence. The advisory range under the Sentencing Guidelines was 360 months to life. Judge Grady thought that a sentence of 360 months was excessive. Nonetheless, he believed a substantial sentence was warranted in light of Moore's criminal history. Moore had three prior convictions for robbery, among other offenses. In 2002, Moore and an accomplice had forced their way into a Burger King restaurant, where they assaulted an employee (who sustained injuries requiring medical attention) and compelled him to open a safe; the two made off with $5,000. R. 123 at 9 ¶ 41. In 2004, Moore and two other individuals had robbed two female victims at gunpoint. R. 123 at 10 ¶ 43. And in 2007, Moore had pushed a female victim against a fence and snatched her purse. He subsequently resisted arrest and twice struck an arresting officer in the face. A handgun was recovered from his vehicle. R. 123 at 10 ¶ 44. Compounding the gravity of Moore's criminal history was the fact that despite the prison terms (ranging from three to eight years) to which he was sentenced for these crimes, he had continued to re-offend; indeed, Moore had committed the car theft at issue in this case shortly after being paroled on the last of these prior robbery convictions and while still wearing an electronic monitoring bracelet on his ankle. " This isn't really a matter of punishment," Judge Grady observed. R. 156 at 38. " It's a matter of protecting the public from this defendant, who is a person who simply does not respect the law." R. 156 at 38. After hearing from the victim and Moore's sister and weighing the sentencing factors set forth in 18 U.S.C. § ; 3553, the judge concluded that a below-Guidelines sentence of 20 years, or 240 months, was sufficiently lengthy " to promote the objectives of specific and general deterrence and avoidance of inappropriate and unjustified sentencing disparities." R. 156 at 66. " Twenty years is a long time. It will give the defendant a long time to think about

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his attitude toward the rights of others ... ." R. 156 at 66.

         When asked by the probation officer how the 240-month sentence should be allocated between the two convictions, Judge Grady ordered Moore to serve consecutive terms of 120 months on each. We should point out here that the parties and the court were laboring under the mistaken assumption that the statutory range of possible punishments on the felon-in-possession conviction was zero to 120 months. See R. 123 at 17 ¶ 82; R. 156 at 67-68. In fact, as we discuss below, Moore's criminal history of multiple convictions for armed robbery triggered an increase in the statutory sentencing range on that conviction: Moore was subject to a statutory minimum term of 180 months (15 years) and a maximum term of life. See 18 U.S.C. § 924(e)(1). The increased range remained overlooked until Moore was re-sentenced following a second trial on the carjacking and using-and-carrying charges.

         The re-trial was the result of a remand we ordered in Moore's first appeal. In that 2014 decision, we affirmed Moore's conviction on the felon-in-possession charge but vacated his conviction on the using-or carrying charge. Moore I, 763 F.3d 900. Our decision to vacate the latter conviction was animated by a concern that the district judge had prematurely solicited a partial verdict from the jury when it had not yet declared that it was at an impasse as to the underlying crime of violence (carjacking) in relation to which Moore had allegedly used or carried a firearm. 763 F.3d at 912-14. We remanded the case to the district court for further proceedings consistent with our opinion. Id. at 914.

         On remand, the case was reassigned from Judge Grady (who had retired) to Judge Kocoras, and a grand jury issued a superseding indictment re-asserting the carjacking charge (which, as we have mentioned, had been dismissed without prejudice following the jury's inability to reach a verdict at the first trial) and the using-or-carrying charge, the conviction which we had vacated. Moore moved to dismiss the superseding indictment on double jeopardy grounds, but Judge Kocoras denied that motion, and we sustained his decision in a second appeal. United States v. Moore, 617 Fed.Appx. 562 (7th Cir. 2015) (per curiam) (non-precedential decision) (" Moore II " ).

         Moore was re-tried on both charges in 2015, and the jury acquitted him. Given the veil of secrecy that enshrouds jury ...

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