United States v. Moore, 20-11215

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Branch, Circuit Judge
• Citation: 22 F.4th 1258
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony MOORE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Anthony Moore, Defendant-Appellant.
• Docket Number: No. 20-11216,No. 20-11215,20-11215
• Decision Date: 13 January 2022

22 F.4th 1258

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

United States of America, Plaintiff-Appellee,
v.
Anthony Moore, Defendant-Appellant.

No. 20-11215
No. 20-11216

United States Court of Appeals, Eleventh Circuit.

Filed: January 13, 2022

Germaine Seider, Sean Siekkinen, Assistant U.S. Attorney, U.S. Attorney Service-Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Katherine Grace Howard, Conrad Benjamin Kahn, Stephen John Langs, Federal Public Defender's Office, Rosemary Cakmis, Law Office of Rosemary Cakmis, Orlando, FL, Tamara E. Theiss, Alec Fitzgerald Hall, Nicole Valdes Hardin, Federal Public Defender's Office, Tampa, FL, for Defendant-Appellant.

Before Newsom, Branch, and Lagoa, Circuit Judges.

Branch, Circuit Judge:

Upon the third revocation of his supervised release, Anthony Moore was sentenced to 18 months’ imprisonment and an additional 18 months’ supervised release. During the revocation proceedings, he was also sentenced to a consecutive term of 6 months’ imprisonment for criminal contempt. On appeal, Moore raises five challenges to his contempt conviction and his revocation and contempt sentences. First , he argues that the district court plainly erred in imposing an additional term of supervised release because it failed to account for the terms of imprisonment that were imposed upon the prior revocations of his supervised release. Second , he argues that 18 U.S.C. § 3583(e) —the statute under which he was sentenced upon revocation—is unconstitutional because it allows the district court to extend Moore's sentence beyond the authorized statutory maximum for his offense of conviction based solely on "judge-found facts" in violation of the Fifth and Sixth Amendments as set forth in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).¹ Third , he argues that his revocation sentence is substantively unreasonable. Fourth , he argues that the district court plainly erred in convicting him of criminal contempt without giving him an opportunity to allocute. Fifth , he argues that we should exercise our "inherent supervisory authority" to modify the contempt sentence.

Although the district court plainly erred in imposing an 18-month term of supervised release for Moore's third revocation, § 3583(e)(3) is not unconstitutional as applied to Moore, and the district court did not impose a substantively unreasonable sentence. As to Moore's contempt sentence, the district court did not plainly err in convicting Moore of criminal contempt without giving him an opportunity to allocute, and we decline his request for us to modify the contempt sentence. Accordingly, with the benefit of oral argument, we affirm in part and vacate in part Moore's contempt conviction and sentences.

I. Background

In 2007, Moore was convicted of possession of several un-registered destructive devices in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. He was sentenced to the

22 F.4th 1262

statutory maximum for his offense—120 months’ imprisonment to be followed by 36 months’ supervised release. He completed his term of imprisonment in 2016 and began serving the term of supervised release. Since then, his supervised release has been revoked three times.

In October 2017, after finding Moore guilty of two violations of the terms of his supervised release, the district court revoked Moore's supervised release and sentenced him to 6 months’ imprisonment and 24 months’ supervised release.² In December 2018, the district court revoked Moore's supervised release again due to a new violation and sentenced him to 18 months’ imprisonment and 18 months’ supervised release. Finally, in March 2020, the district court revoked Moore's supervised release a third time due to several new violations, and sentenced him to 18 months’ imprisonment and 18 months’ supervised release. The district court also sentenced him to a consecutive six-month term of imprisonment for criminal contempt for his conduct during the third revocation hearing. The facts underlying the third revocation are as follows.

In early 2020, Moore was charged with eight violations of the terms of his supervised release, most of which related to drug or alcohol use. The third of the eight violations charged was for failure to notify probation within 72 hours of being questioned by the police. On January 7, 2020, Moore had been questioned by the Tampa Police Department about excessive use of alcohol. According to the police report, Moore was drinking with his work crew supervisor Steven Stearns and another individual on Stearns's boat. Moore drank excessively and later fell asleep on the couch in Stearns's living room. The next morning, Stearns's 5-year-old daughter told Stearns that Moore had "lifted her skirt and attempted to touch her inappropriately." Stearns went into his living room, punched Moore in the face twice, and called the police. When the police arrived, they found Moore lying on the ground intoxicated. The officers interviewed Stearns's daughter, who confirmed the details of the incident. The police declined to arrest Moore at that time.

At the revocation hearing, Moore admitted to all the alleged violations of the terms of his supervised release except the third violation—the failure to notify probation within 72 hours of being questioned by the police. Moore explained that he did not remember seeing the police or being questioned but stated that he was willing to admit to it. The government called Stearns as a witness to testify about whether Moore was questioned by law enforcement. The district court asked Stearns whether the police tried to question Moore and Stearns responded that "they tried to," but Moore "scream[ed] out that he ain't talking to them." After the district court confirmed with Moore's probation officer that Moore had failed to notify probation within 72 hours of the incident, it found Moore guilty of all eight violations and revoked his supervised release.

The district court then turned to the question of Moore's sentence. The maximum sentence the district court could impose was 24 months’ imprisonment, under 18 U.S.C. § 3583(e),³ and the district court

22 F.4th 1263

calculated Moore's guidelines range to be an "8- to 14-month term [of imprisonment] and an additional term of supervised release of 36 months, less any jail time." After hearing from Moore, the district court invited Stearns to make a victim impact statement as the father of the victim. Stearns described how his daughter was traumatized by Moore's actions and testified that he believed Moore needed additional supervision. During Stearns's testimony, Moore repeatedly interrupted, accusing Stearns of lying and denying that he did anything to Stearns's daughter.

The government requested an upward variance from the guidelines range, as well as "some term of supervision." After speaking with Moore's probation officer about treatment options, the district court sentenced Moore:

The Court: All right. The factors under 3553(a) of Title 18, to the extent applicable in a revocation hearing, are considered as I determine the appropriate sanction.

It's—it's difficult, Mr. Moore, to determine what is a fair sanction for someone like yourself who has alcohol and drug-abuse addiction. But you've now, because of those addictions, crossed that line that results in you being hospitalized. You may not remember what happened, and it may be something that you can't even conceive ever happened, but—

Moore: Yes, sir.

The Court: If you interrupt me, sir—

Moore: Oh, I'm sorry.

The Court: —you're going to spend a lot more time in prison than what you think.

Moore: Yes, sir. I'm sorry.

The Court: Because I can sentence you to contempt consecutive to the sentence. So it's just time to be quiet and listen.

Moore: I'm sorry.

The Court : The public needs to be protected. Some-body who gets that drunk, that under the influence, and does something, the public needs to be protected. You need to get help, sir, but you got to want help. Probation has done everything they can do for you, and you've just basically thumbed your nose at it. I doubt anything I do here today is going to change you. The only thing I can hope for is that somehow it gets your attention, and that you are willing to get the help that you need. I don't think you are. Somehow that happens with people.

I do find that a sentence within the advisory range is not sufficient. This is not just a matter of somebody who's suffering from addiction. This is someone who's abused drugs, abused alcohol regularly and continuously, who's been before the Court a number of times for violating supervised release, and now there's an indication in evidence that he committed a—or engaged in conduct which is very serious. May not have constituted a crime, but it was dangerously close. You traumatized a six-year-old.

Having said all that and having considered all of these circumstances, it is the judgment of the Court [that] the defendant be committed to the custody of the Bureau of Prisons for a term of 18 months. I varied upward f[rom] the Guidelines for the reasons I articulated. You will then be placed on supervision

22 F.4th 1264...