United States v. Moore

Decision Date25 July 2022
Docket Number21-2431
Citation41 F.4th 900
Parties UNITED STATES of America, Plaintiff-Appellee, v. Anthony E. MOORE, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

George A. Norwood, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Angela J. Hill, Attorney, Federal Public Defender's Office, Benton, IL, for Defendant-Appellant.

Before Manion, Rovner, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

In 2008, defendant Anthony E. Moore was convicted of conspiring to distribute at least fifty grams of crack cocaine and of being a felon in possession of a firearm. Because he had four prior drug convictions under Illinois law, he received a mandatory sentence of life in prison. More than a decade later, however, Moore became eligible and moved for a sentence reduction under the First Step Act of 2018. The district court agreed that Moore was legally eligible for such a reduction. The court also decided, however, not to apply intervening case law—namely, the Supreme Court's decision in Mathis v. United States , 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) —under which Moore's guideline and statutory ranges would have been lower. The court explained that under its assessment of the relevant sentencing factors under 18 U.S.C. § 3553(a), it would reduce Moore's life sentence to a term of 420 months (thirty-five years).

Moore challenges the district court's decision on three grounds. He argues that the court (1) misunderstood his Mathis argument, (2) created an unwarranted sentencing disparity when it later considered a co-defendant's Mathis argument, and (3) erroneously presumed that his conviction was for a violent crime. We reject all three challenges and affirm the district court's decision to reduce Moore's sentence, but by less than he wants.

I. Facts and Procedural History

In October 2007, a federal grand jury indicted Moore on several charges. Count One was for conspiracy to distribute at least fifty grams of crack cocaine, Count Three was a felon-in-possession charge, and Count Four was for possession of a firearm in furtherance of a drug-trafficking offense. (Count Two applied only to a co-defendant.) The government filed an information under 21 U.S.C. § 851 to establish that Moore had four prior Illinois drug convictions that could be used to enhance his sentence. A jury found Moore guilty on Counts One and Three but not guilty on Count Four. The jury also issued a special verdict finding that the total amount of crack cocaine involved was at least fifty grams.

At sentencing, the district court's guideline calculations began with a base offense level of thirty-four based on the quantity of crack. After enhancements for possession of a weapon during the offense and for Moore's career-offender status, his final offense level was thirty-seven. Combined with Moore's criminal history category of VI, that produced a guideline recommendation of 360 months to life on Count One and 120 months on Count Three.

At the time, however, 21 U.S.C. § 841(b)(1)(A) required a life sentence because of the combination of the crack quantity and Moore's prior convictions. The district court, after noting that it did not have "any choice at all," imposed the mandatory term of life in prison on Count One and a concurrent term of 120 months on Count Three. The court also imposed the mandatory minimum ten-year term of supervised release and ordered Moore to pay a fine and special assessment. On appeal, this court affirmed Moore's convictions and sentence. United States v. Moore , 641 F.3d 812, 830 (7th Cir. 2011).

Several years later, Congress passed the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. As we have observed, the Act "made retroactive the lower statutory penalties for crack offenses from the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010)." United States v. Williams , 32 F.4th 653, 654 (7th Cir. 2022). Under section 404 of the First Step Act, defendants convicted of certain crack cocaine offenses before the Fair Sentencing Act took effect may seek sentence reductions. See United States v. Shaw , 957 F.3d 734, 739–40 (7th Cir. 2020).

In 2019, Moore moved for a reduced sentence. In his operative amended motion, he argued that the district court should consider the current Sentencing Guidelines, the 18 U.S.C. § 3553(a) sentencing factors, his post-conviction conduct, and the Supreme Court's intervening decision in Mathis v. United States , 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In particular, Moore asserted that he no longer qualified for the career-offender guideline or the statutory enhancement. Based on the categorical-approach guidance Mathis provided, Moore argued that the Illinois drug statutes under which he had been convicted were overbroad and indivisible, so those convictions could not serve as predicate felony drug offenses under federal law. In the meantime, we have agreed with that view of Illinois drug laws for statutory enhancements, but not the Guidelines, because Illinois law applies to some drugs that federal law does not reach. See United States v. Ruth , 966 F.3d 642 (7th Cir. 2020) (addressing cocaine isomers); see also United States v. De La Torre , 940 F.3d 938 (7th Cir. 2019) (addressing isomers of methamphetamine under Indiana law). Moore argued that his updated guideline range—after accounting for Mathis —would be 210 to 262 months. Since he had served 164 months already, Moore requested a reduced sentence of time served with a reduced four-year term of supervised release.

The government conceded that Moore was legally eligible for a sentence reduction. It argued, however, that the First Step Act did not require a plenary resentencing involving recalculation of Moore's criminal history category. The government said that Moore's guideline range should remain 360 months to life, so the court should not reduce his sentence at all. Even if the court were to reduce Moore's sentence, the government argued, it should not go any lower than 420 months based on Moore's criminal history and the other § 3553(a) factors.

The district court agreed that Moore was legally eligible for a sentence reduction under the First Step Act but held that he was not entitled to a plenary resentencing. As a result, the court said that it would not apply Mathis and instead would continue "to apply the career-offender enhancement when deciding on a proper sentence." Then, analyzing the § 3553(a) factors, the court noted that Moore had been one of the largest crack cocaine dealers in Mt. Vernon, Illinois. The court also observed that a search of Moore's home had revealed, in addition to crack cocaine and drug paraphernalia, four firearms and ammunition, "[belying Moore's] suggestion that his current conviction was ‘non-violent.’ " Finally, Moore had several other prior felony convictions. While the court commended Moore for "making the most of the past 14 years," it concluded that only a limited reduction was warranted. The court imposed a new sentence of 420 months and did not reduce the term of supervised release. Moore has appealed.

II. The Mathis Argument

First, Moore asserts that the district court erred because it considered his Mathis argument with respect to only the career-offender guideline—not with respect to the statutory enhancement. We review the denial of a First Step Act motion for abuse of discretion. United States v. Sutton , 962 F.3d 979, 986 (7th Cir. 2020).

In the district court, Moore argued that after Mathis , his prior convictions no longer qualified as predicate drug offenses. On appeal, he says the district court "mistakenly believed that [his] Mathis argument applied only to his discretionary career-offender guideline or failed to consider his statutory argument." Moore focuses on the court's statement that it would not apply "intervening judicial decisions" but would continue to apply the "career-offender enhancement." This language, Moore says, shows that the district court considered his Mathis argument only insofar as it might have affected his guideline range.

The argument is not persuasive. Moore's interpretation of the order assumes that the veteran district judge failed to understand that the Mathis argument also applied to the statutory enhancement. Mathis itself was a statutory case, of course. And Moore's position, questionable on its face, is even harder to accept given that Moore's amended First Step Act motion—which the district judge cited throughout the order—repeatedly referred to the statutory enhancement. See Amended Motion to Reduce Sentence at 3–4, Dkt. 532 ("Under the reasoning of Mathis , however, [Moore] no longer has the convictions necessary to support the § 851 enhancement or the career-offender guideline."); id. at 6 (arguing based on Mathis that two of Moore's Illinois drug convictions "do not qualify as ‘felony drug offenses’ under § 841's recidivist-sentencing provisions"); id. at 8–9 (same for other two predicate convictions).

There is, to be sure, some potential ambiguity in the order. The district court framed Moore's argument as whether "his prior felony convictions are not predicate offenses for a career-offender designation," and it did not expressly mention the statutory enhancement. But even if every page of the order is not as precise as we might wish with the benefit of hindsight, we have no trouble concluding that the district court made a deliberate decision not to apply Mathis to either the guideline or statutory enhancements. The court acknowledged correctly that in acting on a First Step Act motion, it was permitted to apply intervening judicial decisions—such as Mathis —but it said explicitly that "the Court will not do so here." It is hard to imagine why the court would have applied that logic to the guideline designation but not to the statutory enhancement.1

Even if Moore were correct that the district court misunderstood his argument,...

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