United States v. Moore, No. 19-1390-cr

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: William J. Nardini, Circuit Judge
• Citation: 975 F.3d 84
• Parties: UNITED STATES of America, Appellee, v. Jonathan T. MOORE, Defendant-Appellant.
• Docket Number: No. 19-1390-cr,August Term, 2019
• Decision Date: 15 September 2020

975 F.3d 84

UNITED STATES of America, Appellee,
v.
Jonathan T. MOORE, Defendant-Appellant.

No. 19-1390-cr
August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: March 9, 2020
Decided: September 15, 2020

Yuanchung Lee, Federal Defenders of New York, Inc., New York, New York, for Defendant-Appellant.

Anna M. Skotko (Sarah K. Eddy, on the brief), Assistant United States Attorneys, for Audrey Strauss, Acting United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Before: Chin, Sullivan, and Nardini, Circuit Judges.

William J. Nardini, Circuit Judge:

Defendant-Appellant Jonathan T. Moore appeals from a final order entered on May 7, 2019, in the United States District Court for the Southern District of New York (Loretta A. Preska, J .), denying his motion for a sentence reduction pursuant to the First Step Act of 2018 ("First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194. Moore argues that the district court erred by failing to recalculate his advisory range

975 F.3d 86

under the United States Sentencing Guidelines in light of case law that was decided subsequent to his sentencing. Moore also argues that the district court erred by relying on a factual error regarding his prison disciplinary record.

As we explain below, in determining whether and to what extent to exercise its discretion under the First Step Act to reduce an eligible defendant's sentence, a district court is not obligated to re-calculate the defendant's Guidelines range except to reflect changes that flow from the Fair Sentencing Act of 2010 ("Fair Sentencing Act"), Pub. L. 111-220, 124 Stat. 2372. Moreover, the record provides no basis to conclude that the district court's minor factual misstatement regarding Moore's disciplinary record affected his substantial rights. We therefore AFFIRM the decision of the district court.

I. Background

A. Moore's conviction and sentence

On September 28, 2007, a police officer stopped Moore's car after observing the rear license plate swinging loosely. As the officer walked up to the car, he saw Moore push something down in the space between the driver's seat and the door. The officer opened the driver's side door and saw a loaded gun with an obliterated serial number. After arresting Moore, the officer searched the car and found 5.8 grams of crack cocaine. Moore admitted that both the gun and the drugs were his.

On January 7, 2009, Moore pled guilty to (1) possessing a firearm following a felony conviction, in violation of 18 U.S.C. § 922(g) ; and (2) possessing with intent to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).

Moore had a long criminal history, including at least five drug felonies, as well as convictions for trespass, possession of stolen property, larceny, resisting arrest, and misdemeanor assault. In the Presentence Report ("PSR") prepared in advance of Moore's sentencing, the U.S. Probation Office placed him in criminal history category VI pursuant to the 2008 Guidelines, which were in effect at time of his sentencing.

As to the applicable offense level, the PSR stated that, pursuant to U.S.S.G. § 3D1.2(d) and § 3D1.3(a),¹ the firearm and narcotics counts could be grouped. The PSR went on to determine that Moore was a career offender, based in part on his prior conviction under New York Penal Law § 220.31 for fifth-degree criminal sale of a controlled substance. And as a career offender convicted of a controlled substance offense carrying a statutory maximum term of 40 years’ imprisonment, 21 U.S.C. § 841(b)(1)(B), Moore's offense level was calculated at 34 pursuant to U.S.S.G. § 4B1.1(b)(B).² Reductions for acceptance of responsibility finally yielded a total offense level of 31. Because of his status as a career offender, Moore was also automatically deemed to be in criminal history category VI.³

The combination of offense level 31 and criminal history category VI resulted in a Guidelines range of 188-235 months in prison.

975 F.3d 87

On June 16, 2009, the district court (Stephen C. Robinson, J. ) adopted the PSR's Guidelines calculation and sentenced Moore to the bottom of the range: a total of 188 months in prison, to be followed by four years of supervised release. Moore is presently serving his prison sentence, with a projected release date of May 22, 2021.

B. The Fair Sentencing Act and First Step Act

About a year after Moore's sentencing, on August 3, 2010, the Fair Sentencing Act took effect, which increased the drug amounts needed to trigger mandatory minimum sentences for crack cocaine trafficking offenses.⁴ Before the Fair Sentencing Act, an offense charged as involving 5 grams or more of crack cocaine carried a minimum of 5 years and a maximum of 40 years in prison under 21 U.S.C. § 841(b)(1)(B)(iii). Section 2 of the Fair Sentencing Act raised the threshold quantity for that penalty range to 28 grams.⁵ Section 3 eliminated the 5-year mandatory minimum sentence for simple possession of crack cocaine under 21 U.S.C. § 844(a).⁶ The Fair Sentencing Act did not apply retroactively; it applied only to defendants sentenced on or after August 3, 2010.⁷

On December 21, 2018, the First Step Act became law.⁸ Section 404(b) of the First Step Act states that a court that imposed a sentence for a "covered offense," as defined in § 404(a),⁹ may "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed."¹⁰ Such a reduction "is discretionary ... and a district judge may exercise that discretion to deny relief where appropriate."¹¹

C. Moore's motion for a reduced sentence

On April 15, 2019, Moore moved for a sentence reduction under § 404(b). His motion explained that, had the Fair Sentencing Act been in effect at the time of his sentencing, he would not have been subject to any statutory minimum sentence, and his statutory maximum would have been 20 years instead of 40. Consequently, his base offense level under the career offender Guideline – which is keyed to a defendant's statutory maximum prison term – would have been 32 instead of 34. After a reduction for acceptance of responsibility, his total offense level would have been 29. Combining this offense level with criminal history category VI (which applied regardless

975 F.3d 88

of his career offender status) would have yielded a revised range of 151-188 months.

Stressing that the district court had originally sentenced him at the bottom of the then-applicable Guidelines range (188 months), Moore asked that the court "reduce the sentence to the bottom of the now-applicable guidelines range to a sentence of 151 months."¹² He also asked that the district court reduce his term of supervised release to 3 years. In seeking this reduction, Moore asserted that, during his incarceration, he had held multiple jobs, received positive work evaluations, gained valuable skills, obtained his GED, and completed additional vocational programs. He said that, if released, he planned to live with his wife and seek work in construction, before eventually becoming a social worker.

The Government opposed Moore's motion. While agreeing that Moore was eligible for a sentence reduction under the First Step Act, the Government asked the district court to exercise its discretion to deny the motion in light of Moore's criminal history and prison disciplinary record. The Government provided the court with a list of Moore's infractions while incarcerated, which included: (a) possessing drugs/alcohol in 2018; (b) fighting with another person in 2016; (c) possessing an unauthorized item in 2015; (d) possessing a dangerous weapon in 2012; and (e) failing to follow safety regulations in 2009.

D. The district court's decision

On May 7, 2019, the district court denied Moore's motion.¹³ Of the applicable revised Guidelines range, the district court said only that "[t]he Government agrees that ... the new sentencing guideline range is between 151 and 188 months."¹⁴ The district court then explained that it was declining to exercise its discretion to reduce Moore's sentence because the more positive aspects of his background were "simply outweighed" by his "conduct while in prison and lengthy criminal history."¹⁵ Moore had engaged in a "relatively unbroken string of criminal activity other than periods of incarceration from the time [he] was 22 or so years old."¹⁶ Moore's many serious infractions after his 2009 sentencing left it "clear that string continues unbroken."¹⁷

In describing Moore's infractions, the district court stated that he had "possessed a dangerous weapon, possessed narcotics, and fought with another inmate, all in the last 4 years."¹⁸ That explanation contained one factual misstatement: As reflected properly in the Government's opposition to Moore's motion, Moore's narcotics and fighting infractions occurred within the last four years, but his dangerous weapon infraction occurred seven years prior.

This appeal followed.

...