U.S. v. Moore III

Decision Date02 May 2000
Docket NumberNo. 99-6294,99-6294
Citation225 F.3d 637
Parties(6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Owen Daniel Moore, III, Defendant-Appellant. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 98-00020--James H. Jarvis, District Judge. [Copyrighted Material Omitted] Steve H. Cook, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.

Herbert S. Moncier, Knoxville, Tennessee, Owen Daniel Moore, III, Louisville, KY, for Appellant.

Before: MERRITT, JONES, and CLAY, Circuit Judges.


NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant Owen Daniel Moore, III, appeals his sentence after he pleaded guilty to conspiracy to steal and distribute stolen property. Among other things, Moore asserts that the district court erred in not granting his motion to compel Defendant-Appellee United States to move for a substantial assistance downward departure, and that the district court erred in increasing his offense level for "more than minimal planning" under U.S.S.G. § 2B1.1(b)(4). For the following reasons, we AFFIRM the district court's judgment.


In September 1997, Christopher Davis, an acquaintance of Moore, stole approximately 128 diamonds from his employer, Downey Design International. Davis flew to Florida with the diamonds, where he contacted Moore and asked him to retrieve some of the contraband. Moore drove from his residence in Tennessee to Florida and returned to Tennessee with a number of the diamonds. Arriving back in Tennessee, Moore burned the diamond's identifying tags and buried the diamonds for safe-keeping. From approximately September 1997 to February 1998, Moore sold and distributed the diamonds to various individuals in the Knoxville area.

On October 24, 1997, undercover FBI Agent Daniel Reece met with Moore to negotiate the sale of a stolen piece of machinery. During these discussions, Moore asked the undercover agent if he was interested in purchasing diamonds. After Moore showed Agent Reece two of the diamonds and documentation attesting to their quality, Moore and Reece agreed to meet to execute a sale. Three days later, on October 27, 1997, Agent Reece met with Moore. After indicating that he wanted to deal only in cash and that another individual was involved in selling the diamonds, Moore gave two of the diamonds to Agent Reece and was subsequently arrested. The two diamonds Moore attempted to sell to Agent Reece were subsequently traced to the diamonds stolen by Davis.

On November 4, 1997, a federal grand jury indicted Moore for possessing and distributing stolen property that had crossed a state boundary. Notwithstanding his arrest and indictment, Moore, who was released on bond, continued to possess and sell the stolen diamonds. Moore further demurred to the government's entreaties that he cooperate with the ongoing investigation. Specifically, between Moore's arrest and indictment, the government contacted Moore's counsel in the hopes of seeking his cooperation in locating and returning the outstanding diamonds, but as noted above, Moore continued to distribute the contraband. See J.A. at 203. As the government's investigation continued, it eventually filed a superseding information charge against Moore for conspiring with Davis in stealing and distributing the diamonds. See J.A. at 10. The government's ensuing investigation into the heist was facilitated by the cooperation of alleged co-conspirator Jeff Turner, who received immunity for his cooperation.

Shortly after learning of Turner's cooperation, Moore stated that he would cooperate and entered into a Rule 11 plea agreement. In exchange for the government dropping the possession and distribution charge, Moore pleaded guilty to the expanded conspiracy count. The following day, Moore surrendered 43 of the approximately 128 stolen diamonds.

After the government declined to file a substantial-assistance downward departure motion, Moore moved the district court to review the government's motivations for failing to file and that the court compel the government to file. The district court subsequently denied Moore's motion to compel in its entirety, concluding that Moore signed a plea agreement that gave the United States sole discretion to decide if it would move for substantial assistance.

At the sentencing hearing, Moore attempted to subpoena three unindicted co-conspirators to elicit both the time frame and content of their cooperation with the government. The district court quashed these subpoenas for failing to comply with procedural requirements and proceeded to consider Moore's sentence. After increasing Moore's offense level for more than minimal planning under U.S.S.G § 2B1.1(b)(4), the district court sentenced Moore to fifteen months imprisonment and ordered him to pay restitution to Downey Design International in the amount of $65, 569.73. Moore now appeals his sentence.


Among a litany of claims, Moore asserts that the district court erred in denying his motion to compel the government to file a substantial-assistance downward departure motion under U.S.S.G. § 5K1.1. We review the district court's interpretation of the Sentencing Guidelines de novo. See United States v. Jones, 159 F.3d 969, 980 (6th Cir. 1998). The district court ruled that it could review a refusal by the United States to move for such a downward departure only when the defendant asserts that unconstitutional motives motivated the government's decision not to file. See J.A. at 224. Moore claims that a court may review the government's refusal to move for substantial assistance for both unconstitutional motives and bad faith, and that because the district court did not believe it could make a bad faith review, we should remand for re-sentencing.

Section 5K1.1 of the Guidelines provides:

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

U.S.S.G. § 5K1.1. While some circuits have ruled that courts may conduct a bad faith review of the government's refusal to file a substantial assistance motion, see United States v. Knights, 968 F.2d 1483, 1487 (2d Cir. 1992); United States v. Jones, 58 F.3d 688 (D.C. Cir. 1995), this Circuit has expressly ruled that when a plea agreement allocates complete discretion to the government to consider whether a substantial assistance motion should be filed, we may only review the government's decision for unconstitutional motives. See United States v. Benjamin, 138 F.3d 1069, 1073 (6th Cir. 1998) (holding that with respect to plea agreements where the government reserves discretion to file a substantial assistance motion, "a district court may only review the government's refusal to make the motion to determine whether the refusal is based on unconstitutional considerations, such as the defendant's race"); see United States v. Austin, No. 97-4197, 2000 WL 32017, at *5 (6th Cir. Jan. 4, 2000) (unpublished opinion) ("If the government reserves the discretion to determine whether the motion is warranted, the court is limited to reviewing simply whether the government's refusal to make the motion is based on unconstitutional considerations."). On the other hand, when the government bargains away its discretion and agrees to a plea agreement in which it promises to file a substantial assistance motion, we may ascertain whether the government complied with the terms of the agreement. See Benjamin, 138 F.3d at 1073-74.

In pertinent part, Moore's plea agreement provides:

If, in the opinion of the United States, the Defendant renders substantial assistance within the meaning of U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), the United States will file a motion pursuant to these provisions. The Defendant acknowledges that, under the law and under the terms of this plea agreement, United States retains complete discretion in determining whether a departure motion will be filed.

J.A. at 39(a)-(b) (emphasis added). Because Moore's plea agreement explicitly grants the government "complete discretion" to determine whether it should move for a substantial assistance departure, we may review the government's refusal only for unconstitutional motives. Moore has not alleged any impermissible motive and, accordingly, we affirm the district court's denial of his motion to compel.


Moore additionally contends that the district court erred in increasing his offense level for "more than minimal planning" under U.S.S.G. § 2B1.1(b)(4). We review the district court's "more than minimal planning" finding for clear error. See United States v. Lutz, 154 F.3d 581, 590 (6th Cir. 1998). "More than minimal planning" means "more planning than is typical for the commission of the offense in a simple form, or if significant affirmative steps were taken to conceal the offense." United States v. Loggins, No. 98-5657, 1999 WL 1204793, at *12 (6th Cir. 1999) (unpublished opinion). It is not necessary that a crime suggests planning in its most deliberative form; rather, it is sufficient if the evidence suggests merely that the crime was not committed in its simplest form. See United States v. Lewis, 156 F.3d 656, 660 (6th Cir. 1998) (quoting United States v. Ellerbee, 73 F.3d 105, 108 (6th Cir 1996)).

The district court found that Moore traveled to Florida, picked up the diamonds, and returned with them to Tennessee. The court further found that Moore burned the diamond's identification tags to avoid detection and buried the contraband as well. Additionally, the court noted that Moore fronted diamonds to others for re-sale and also sold diamonds himself. See id. Moore does not challenge the veracity of these findings, but contends that they are insufficient to support a "more than minimal...

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