The opinion
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-20-2004
USA v. Moorer
Precedential or Non-Precedential: Precedential
Docket No. 03-2476
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PRECEDENTIAL (Opinion Filed: September 20, 2004)
___________
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-2476
___________ Gavin P. Lentz, Esq. [ARGUED]
David P. Heim, Esq.
UNITED STATES OF AMERICA Bochetto & Lentz, P.C.
Philadelphia, PA 19102
v. Counsel for Appellant
LAVERN MOORER,
Edmond Falgowski
Assistant United States Attorney
Appellant District of Delaware
________________________
Elizabeth A. Olson [ARGUED]
ON APPEAL FROM THE UNITED Appellate Section, Criminal Division
STATES DISTRICT COURT FOR THE United States Department of Justice
DISTRICT OF DELAWARE P.O. Box 899, Ben Franklin Station
District Court Judge: The Hon. Sue L. Washington, DC 20044
Robinson
(No. 01-CR-071) Counsel for Appellee
___________
_______________________
Argued: May 5, 2004
OPINION OF THE COURT
BEFORE: SLOVITER and FUENTES, _______________________
Circuit Judges,
and POLLAK, District Judge.*
FUENTES, Circuit Judge:
In October 2001, Appellant Lavern
*
Moorer was charged with possession with
Honorable Louis H. Pollak, Senior the intent to distribute cocaine and
District Judge for the United States possession of a firearm. A year later,
District Court for the Eastern District of Moorer pled guilty and was sentenced to a
Pennsylvania, sitting by designation.
term of 120 months in prison. Factored kilograms of cocaine, and possession of a
into this sentence was the District Court’s .380-caliber semi-automatic pistol.
decision to designate Moorer a “career
Moorer pled guilty to the 2001
offender,” a designation arrived at by
offenses of possession with intent to
including Moorer’s 1990 conviction for
distribute more than 500 grams of cocaine
aggravated assault. The principal issue on
and unlawful possession of a firearm in
appeal is whether Moorer’s 1990
August 2002. Moorer’s Presentence
conviction counts toward establishing his
Investigation Report (“PSR”) initially
career offender status, even though Moorer
assigned him a criminal history category of
was only 17 years old at the time. Because
V. However, pursuant to U.S. Sentencing
we find that Moorer’s 1990 conviction is a
G u i d e l i n e s M a n u a l ( h e r e in a f t e r
“prior felony conviction” for purposes of
“U.S.S.G.”) § 4B1.1(a), the PSR dubbed
career offender status, we affirm the
Moorer a “career offender:”
judgment of the District Court.
A defendant is a career offender if
I. Background
(1) the defendant was at least
The account of Moorer’s relevant eighteen years old at the time the
criminal history begins in 1989, at which defendant committed the instant
time he was serving a term of juvenile offense of conviction; (2) the
confinement for possession with intent to instant offense of conviction is a
deliver cocaine. In an attempt to escape felony that is either a crime of
from his juvenile detention, Moorer violence or a controlled substance
assaulted a corrections officer, and was offense; and (3) the defendant has
convicted of this offense in New Jersey at least two prior felony convictions
Superior Court in May 1990. The court of either a crime of violence or a
sentenced Moorer to an indeterminate term controlled substance offense.
of incarceration (not to exceed five years)
at Yardville Youth Reception Center, a
facility housing older juveniles and Specifically, the PSR counted as Moorer’s
younger adults under the control of the “two prior felony convictions” 1) his 1990
New Jersey Department of Corrections. In conviction for aggravated assault
1994, while still on parole for his 1990 committed while escaping from a juvenile
conviction, Moorer was convicted of detention facility; and 2) his 1994
possession with intent to deliver marijuana conviction for possession with intent to
and cocaine, both controlled substances, deliver marijuana and cocaine within a
within a school zone. Moorer was school zone. As such, Moorer’s criminal
sentenced to five years in prison for that history category was increased to VI. Id.
offense. Finally, in August 2001, Moorer at § 4B1.1(b). Using an offense level of
was arrested and charged with procuring, 31 for a Category VI offender, the District
with the intent to distribute, almost 6 Court calculated a sentence range of 188-
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235 months. The Court then granted a an adult. Rather, M oorer contends that a
downw ard departure for substantial conviction is a “prior felony conviction”
assistance to the government, resulting in under § 4B1.1(a) only if both 1) the
a final sentence of 120 months. Moorer conviction occurs in an adult proceeding
timely appealed. The primary issue on (instead of in juvenile court), and 2) the
appeal is whether Moorer’s 1990 conviction results in an adult sentence.
conviction should have counted toward Moorer asserts that his sentence for the
career offender status. 1990 conviction for aggravated assault was
served concurrently with a prior sentence
II. Jurisdiction
that he was already serving pursuant to a
The District Court had subject juvenile adjudication, and was therefore a
matter jurisdiction pursuant to 18 U.S.C. § juvenile sentence.
3231. This Court has jurisdiction over the
In our view, the Guidelines belie
District Court’s sentencing decision
Moorer’s premise that an adult conviction
pursuant to 28 U.S.C. § 1291 and 18
must be accompanied by an adult sentence
U.S.C. § 3742.
to count toward career offender status.
III. Standard of Review The Guidelines offer the following
definition of “prior felony conviction” for
We apply a plenary standard of
purposes of §4B1.1(a):
review over the D istrict Court’s
i n t e rp r e t a tion of th e S entenc ing
Guidelines. E.g., United States v. Lennon,
372 F.3d 535, 538 (3d Cir. 2004).
IV. Discussion
Moorer’s main argument on appeal
is that his 1990 conviction should not
count toward career offender status
because he was sentenced as a juvenile
rather than an adult.1 However, Moorer
does not contest that he was convicted as
1
Moorer nominally presents a second
argument based on Due Process, but this
argument is merely a reiteration of his
claim that he should not be considered a
career offender because his 1990
conviction resulted in a juvenile
sentence.
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“Prior felony conviction” means a prior for such an offense, and includes in the
adult federal or state conviction for an career offender calculation federal and
o f f e nse punishable by death o r state adult convictions for all offenses,
imprisonment for a term exceeding one felonies or otherwise, which could be
year, regardless of whether such offense is punished by death or a term of
specifically designated as a felony and imprisonment of a year or more. Note 1
regardless of the actual sentence imposed. does not impose a separate sentence
. . . A conviction for an offense committed requirement but places the entire focus on
prior to age eighteen is an adult conviction the conviction itself, defining includable
if it is classified as an adult conviction convictions by the extent to which they can
under the laws of the jurisdiction in which be punished in the relevant jurisdiction.
the defendant was convicted. Accordingly, the clear language of Note 1
refutes Moorer’s attempt to make his
sentence classification the fulcrum of his
U.S.S.G. § 4B1.2, cmt. n.1 (emphasis career offender determination.
added) (hereinafter “Note 1”). Note 1
Ignoring Note 1, Moorer attempts
clearly defines a “prior felony conviction”
to import purportedly helpful language
purely in terms of the kind of conviction
from U.S.S.G. § 4A1.2. First, Moorer
the defendant had, not the kind of
points to U.S.S.G. § 4B1.2, cmt. n.3
sentence. Note 1 specifically explains that
(hereinafter “Note 3”), which instructs:
a prior felony conviction includes any state
“The provisions of § 4A1.2 . . . are
conviction that was counted as an adult
applicable to the counting of convictions
conviction by the laws of that state
under § 4B1.1.” § 4A1.2(d)(1), in turn,
“regardless of the actual sentence
states that an offense committed prior to
imposed.” Id. While it is true, as Moorer
age eighteen counts toward one’s criminal
asserts, that the phrase “sentence of
history when “the defendant was convicted
imprisonment” implies incarceration in an
as an adult and received a sentence of
adult facility2 , where or for how long the
imprisonment exceeding one year and one
defendant is actually sentenced is of no
month.” Moorer, however, relies on §
import. Instead, Note 1 focuses on what
4A1.2, cmt. n.7 (hereinafter “Note 7”),
punishment could follow the conviction
which states that “for offenses committed
prior to age eighteen, only those that
r e s u l te d i n a d u l t s en t e n c e s o f
2
In New Jersey, the term imprisonment exceeding one year and one
“imprisonment” is not customarily used month, or resulted in imposition of an
when referring to a juvenile disposition. adult or juvenile sentence or release from
Juvenile custodial adjudications are confinement on that sentence within five
described instead in terms of years of the defendant’s commencement of
“incarceration.” See N.J. Stat. Ann. § the instant offense are counted.” Moorer
2A:4A-43, 44.
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seizes upon the phrase “adult sentences” convictions.
and asks us to follow the Fourth Circuit’s
Second, requiring adult sentencing
rule from United States v. Mason, 284
in addition to an adult conviction would
F.3d 555, 559 (4th Cir. 2002), that a
add a significant new element to criminal
conviction before age eighteen “counts
history calculations that is unstated in the
only if [the defendant] was both convicted
actual text of the Guidelines. Carrillo, 991
and sentenced as an adult” (emphasis in
F.2d at 594. The text of § 4A1.2(d)(1)
original).
encompasses all situations where “the
We respectfully decline to follow defendant was convicted as an adult” and
the Fourth Circuit’s view on this issue, as received a sentence of requisite length. If
we agree with the Ninth Circuit that the the Sentencing Guidelines Commission
phrase “adult sentences of imprisonment” had wished to require both an adult
in Note 7 can naturally be read “to be a conviction and an adult sentence for
shorthand reference to those defendants criminal history purposes, it could have
who were ‘convicted as an adult and easily written § 4A1.2(d)(1) to reflect that
received a sentence of imprisonment.’” wish: i.e, “If the defendant were convicted
United States v. Carrillo, 991 F.2d 590, and sentenced as an adult to a term of
593-94 (9th Cir. 1993) (quoting U.S.S.G. imprisonment . . .” Based on these
§ 4A1.2(d)(1)); accord United States v. reasons, we hold that an adult conviction
Pinion, 4 F.3d 941, 945 (11th Cir. 1993). qualifies as a “prior felony conviction” for
We believe that Carrillo’s interpretation of purposes of career offender status whether
Note 7 is preferable to Mason’s that conviction results in an “adult” or
interpretation for two reasons. First, and “juvenile” sentence. Because Moorer does
most importantly, a “sentenced as an not contest that his 1990 conviction was an
adult” requirement in Note 7 would adult conviction, we find that it properly
directly conflict with Note 1. As discussed counted toward his career offender status.
above, Note 1 dictates that the career
In closin g, w e note our
offender inquiry examine only whether the
disagreement with Moorer’s contention
conv ictions in question are adult
that his 1990 conviction resulted in a
convictions, and not what kind of
“juvenile sentence” because that sentence
sentences resulted from those convictions.
was served at Yardville Youth Reception
In light of this dictate, it would make little
Center, and because it was made to run
sense for Note 3 to then import a
concurrently with his remaining juvenile
contradictory instruction from § 4A1.2,
disposition. As the government points out,
which is the result under the rule in
New Jersey law makes it clear that once a
Mason. In contrast, taking Carrillo’s
juvenile is referred to an adult court, his
approach to Note 7 would harmonize it
entire case falls under the Code of
with Note 1 by placing the focus of the
Criminal Justice rather than the Code of
career offender inquiry on the nature of the
Juvenile Justice. N.J. Stat. Ann. § 2A:4A-
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26; see also, e.g., State in Interest of A.B., V. Conclusion
520 A.2d 783, 787 n.3 (N.J. Super. Ct.
After carefully considering the
App. Div. 1987). When such a referral
arguments discussed above, we affirm the
occurs, the juvenile’s case is treated in the
District Court’s sentencing judgment.4
adult court “in the same manner as if the
case had been instituted in that court in the
first instance.” N.J. Stat. Ann. § 2A:4A-
28. In this case, we have no reason to
believe that Moorer’s sentence was
anything other than an adult sentence.
Indeed, we have found no authority under
New Jersey law that would permit a judge
to impose a juvenile “sentence” based on
an adult conviction for a crime.3 This
stands in marked contrast to the West
Virginia law discussed in Mason, which
explicitly allows for a defendant under
eighteen to be sentenced under juvenile
delinquency law even after being
convicted under adult jurisdiction. 284
F.3d at 561 (citing State v. Highland, 327
S.E.2d 703, 706 (W. Va. 1985)). The fact
that Moorer was remanded to Yardville to
serve out the sentence for his 1990
conv iction actually undermines his
argument, because Yardville is a facility
that houses adults and is under the control
of the Department of Corrections rather
than the Department of Human Services .
In short, Moorer’s “juvenile sentence”
argument is unavailing both on legal 4
Moorer submitted a pro se brief
principles and on the facts of this
arguing that under Blakely v.
particular case.
Washington, 124 S.Ct. 2531 (2004), a
jury should have determined whether he
was a career offender. We reject this
3
Under the New Jersey Code of argument, as Blakely governed only
Juvenile Justice, juveniles who are factual determinations, and Moorer’s
adjudicated delinquent are not sentenced status as a career offender was purely a
but rather are subject to a “dispositional matter of law under the Sentencing
hearing.” N.J. Stat. Ann. § 2A:4A-41. Guidelines.
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