U.S. v. Moore, 96-3307

• Decision Date: 16 December 1997
• Docket Number: No. 96-3307,96-3307
• Citation: 130 F.3d 1414
• Parties: 98 CJ C.A.R. 156 UNITED STATES of America, Plaintiff-Appellee, v. Calvin MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1414

130 F.3d 1414

98 CJ C.A.R. 156

UNITED STATES of America, Plaintiff-Appellee, v. Calvin MOORE, Defendant-Appellant.

No. 96-3307.

United States Court of Appeals Tenth Circuit.

Dec. 16, 1997.

Leon Patton, Assistant United States Attorney, Kansas City, KS, for Plaintiff-Appellee.

David J. Phillips, Federal Public Defender, Kansas City, KS, for Defendant-Appellant.

Before EBEL, LOGAN and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

This case involving a small-time drug conspiracy among crack addicts in Kansas City, Kansas, has bedeviled the district court there for nearly five years, requiring three separate sentencing hearings. We now conclude that the evidence in the record is sufficient as a matter of law to support the district court's finding that Moore's uncharged, unconvicted, post-conspiracy drug deal was part of the same course of conduct encompassed in the conspiracy for which Moore was charged and convicted. As a result, we affirm.

I.

The facts of this case were reported in an earlier panel decision, see United States v. Moore, 83 F.3d 1231 (10th Cir.1996), and only those facts relevant to the resolution of this appeal will be repeated here. In the fall of 1991, federal investigators became aware of a network of drug dealers operating out of a house in Kansas City, and over the course of six months, undercover agents made five purchases, for a total of 65 grams, of cocaine base (crack cocaine) from the group. The largest single purchase was the last one, on March 5, 1992, for 22.6 grams of crack.

The investigation then entered a six-month hiatus as agents worked on other cases, but in the fall of 1992, investigators decided it was time to put Moore's network out of business. Over the course of four days in early September 1992, undercover agents negotiated and ultimately agreed with Moore to purchase nine ounces of crack for $8,100. This was a much larger quantity than any of their previous controlled buys from Moore. When the agents arrived to pick up their purchase, Moore's accomplice told them that Moore could only supply the crack one ounce at a time. The agents insisted on talking to Moore directly about the change in the agreement, but when everyone emerged from the house to use a car phone outside, the waiting surveillance team mistakenly believed the transaction was complete, and they arrested Moore's accomplice. The nine ounces of crack cocaine never arrived at the house, and when investigators searched the house, they did not find even the one ounce that had been promised.

Moore subsequently pled guilty to one count in a six-count indictment, that is, a conspiracy beginning October 3, 1991 and ending March 5, 1992. The September 1992 deal for nine ounces of crack was not included in any count in the indictment. Finding that Moore's sentence calculation should include the September 1992 deal, the district court sentenced Moore to 188 months in prison. Thereafter, Moore's trial counsel failed to file a timely appeal, and Moore subsequently brought a motion under 28 U.S.C. § 2255 (habeas corpus) alleging ineffective assistance of counsel. The district court granted Moore's motion, vacated his original sentence, and reimposed a 188-month sentence so that Moore might have the opportunity to appeal the sentence.

On appeal, this circuit reversed and remanded the case because the district court erroneously believed it was without jurisdiction to reevaluate the original sentence or to hear new evidence. See Moore, 83 F.3d at 1235. At the new sentencing hearing, the district court heard extensive evidence and decided to reverse one of its original findings, that Moore was an organizer, leader, manager or supervisor in the conspiracy. As a result, the court calculated Moore's total offense level under the Sentencing Guidelines at 34, with a Category I criminal history score, resulting in an available sentencing range of 151 to 188 months. The court sentenced Moore at the bottom of the range--151 months--because of the "nature of the offense and the fact that the Defendant has no serious record of criminal offenses." Moore now challenges his new sentence, contending that the nine-ounce deal that was never consummated should not have been included in the drug-amount calculation and a correct calculation would have resulted in an offense level of 32, with an available sentencing range of 121 to 151 months.

II.

We review a district court's legal interpretations of the Sentencing Guidelines de novo, but the factual findings underlying the district court's calculation of the offense level may be reversed only if they are clearly erroneous. See United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). The government bears the burden of proving by a preponderance of the evidence the amount of drugs attributable to a defendant for sentencing purposes. See United States v. Richards, 27 F.3d 465, 468 (10th Cir.1994). We will not disturb a sentencing court's factual findings unless they are "without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made." United States v. Garcia, 78 F.3d 1457, 1462 (10th Cir.) (quoting United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir.1990)), cert. denied, --- U.S. ----, 116 S.Ct. 1888, 135 L.Ed.2d 182 (1996).

After ten years of living under the Sentencing Guidelines, it is uncontested today that uncharged, unconvicted conduct may be considered by a district court in calculating a sentence. See United States Sentencing Commission, Guidelines Manual, § 1B1.3, comment. (backg'd) (Nov.1991) ("Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range."); see also United States v. Watts, --- U.S. ----, ----, 117 S.Ct. 633, 638, 136 L.Ed.2d 554 (1997) (per curiam) (holding that even conduct for which the defendant is acquitted may be considered for sentencing purposes). It is well-settled in this circuit that a sentencing court may look beyond the offense of conviction and "may consider quantities of drugs not alleged in calculating a defendant's base offense level, provided the drugs were part of the same course of conduct or common scheme or plan as the offense of conviction." United States v. Roederer, 11 F.3d 973, 978 (10th Cir.1993). Moore does not challenge this well-settled principle.

III.

A.

Moore has focused his argument in this appeal on the scope of section 2D1.4, the guideline for evaluating the amount of drugs attributable to a conspiracy. ¹ See U.S.S.G., § 2D1.4 comment. (n.1) (Nov. 1991). Section 2D1.4, however, is not the end of the analysis. This provision merely tells the district court how to measure an amount of drugs that was under negotiation but not actually delivered. See id. The next step for the district court is to follow the Guidelines' circuitous instructions for determining whether this negotiation should be considered "relevant conduct." See U.S.S.G. § 1B1.2(b) ("After determining the appropriate offense guideline section ..., determine the applicable guideline range in accordance with § 1B1.3 (Relevant Conduct)."). Turning to the relevant conduct guideline, the district court is then directed to review section 3D1.2(d), the guideline for grouping multiple offenses. See U.S.S.G., § 1B1.3(a)(2) (Nov.1991). ² In the end, this hopscotch through the Manual requires the district court to make specific findings first, that "the offense [is] the type of offense that, if the defendant had been convicted of both offenses, would require grouping with the offense of conviction," and second, that "the offense [i]s 'part of the same course of conduct or common scheme or plan.' " United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir.1996) (quoting U.S.S.G., § 1B1.3(a)(2)).

We treat the determination of whether uncharged conduct is "groupable" with the offense of conviction as a conclusion of law. See id. at 1363 (holding that an appellate court may make a conclusion of law on the grouping question despite the lack of a district court finding on the question). Thus, in this case, we review the grouping issue de novo. The second requirement for determining relevant conduct--whether the offense is part of the same course of conduct or common scheme--is a pure factual question for which the district court must make specific findings to support its sentence. See United States v. Crockett, 82 F.3d 722, 729-30 (7th Cir.1996) (holding that factual findings generally are required, but the error in that case was harmless because the defendant's actual sentence would have been no different without the challenged unconvicted conduct).

In Moore's case, he claims that the September 1992 deal was outside the scope of the indictment, which alleged a conspiracy ending in March 1992, and therefore should not have been included in his sentencing calculation. ³ As Moore's counsel stated during the 1996 sentencing hearing, "[T]here has to be a stop to the case. I think the case stopped back in March of 1992. And--and what went on [thereafter] was a leap of faith."

Based on the record before this Court, it is clear as a matter of law that Moore's September 1992 agreement to sell nine ounces of crack was an offense that would be "groupable" with his conviction for conspiracy to distribute crack. Cf. Taylor, 97 F.3d at 1364 (finding that a dismissed drug conspiracy count was "groupable" with the drug manufacturing count to which the defendant pleaded guilty). Section 3D1.2(d) makes grouping of certain drug offenses, including distribution, mandatory. See U.S.S.G., § 3D1.2(d) (Nov.1991). The application note for this subsection requires the court to group a conspiracy or attempt charge in the same manner as the underlying substantive offense. See id., comment. (n.6). Thus, because Moore's ...