United States v. Joe Freeman Moorer, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 11-10086 ELEVENTH CIRCUIT

Non-Argument Calendar AUGUST 15, 2011

________________________ JOHN LEY

CLERK

D.C. Docket No. 1:10-cr-20384-CMA-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE FREEMAN MOORER, JR.,

Defendant-Appellant.

______________________

Appeal from the United States District Court

for the Southern District of Florida

______________________

(August 15, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Joe Freeman Moorer, Jr. appeals his convictions and the sentence imposed

after a jury found him guilty of possession with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Moorer raises two

issues on appeal: First, Moorer contends that there was insufficient evidence to

convict him for possession with intent to distribute cocaine. Second, Moorer

argues that his offense was that of simple drug possession and as a result, the

district court erred in treating his conviction as a “controlled substance offense”

for purposes of calculating the advisory guideline range. After a thorough review

of the record, we affirm.

Moorer was charged with possession with intent to distribute cocaine and

possession of a firearm by a convicted felon. At trial, DEA agent David Lee

Hibbs testified that he conducted surveillance of Moorer based on allegations of

drug trafficking. During a subsequent search of Moorer’s car and home, agents

found 14 grams of cocaine in the car and a digital scale and cash in the house. The

scale was covered with a light dusting of cocaine. Hibbs then explained that based

on his training and experience, a typical dose of cocaine is about half a gram and

the typical user would buy one or two grams at a time. Cocaine dealers usually

sold the drug in small ziplock bags and used scales to divide the drug into

individual doses. Hibbs also confirmed that the cash found in the house was

consistent with drug trafficking because it is a cash business.

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When questioned, Moorer initially denied any knowledge of the drugs but

admitted the gun was his. During a later interview with ATF agent Theresa Meza,

Moorer admitted the cocaine was his as well.

Moorer stipulated that he had prior convictions for cocaine trafficking and

intent to distribute cocaine within 1,000 feet of a school. The court issued a

limiting instruction to the jury that these prior convictions were relevant only to

the issue of intent. The jury convicted Moorer of drug and firearm possession.

The presentence investigation report (PSI) grouped the two offenses

together and based the offense level on the amount of drugs involved, which the

probation officer identified as 43.2 grams of cocaine and 54.9 grams of cocaine

base. The probation officer determined this amount based on the 14 grams seized

and additional amounts that were part of earlier controlled buys using confidential

informants. The probation officer further determined that Moorer should be

sentenced as an Armed Career Criminal under 18 U.S.C. § 924(e) and as a career

offender under U.S.S.G. § 4B1.1. The resulting guideline range was 262 to 327

months’ imprisonment.

At sentencing, Moorer requested a downward variance, arguing that a

sentence of 200 to 210 months would be sufficient. The district court disagreed

and sentenced Moorer to 262 months’ imprisonment. The court expressed concern

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over Moorer’s criminal history and stated that a sentence within the guideline

range was necessary under the sentencing factors in 18 U.S.C. § 3553(a). Moorer

now appeals his convictions and sentence.

I. Sufficiency of the Evidence1

We review de novo whether the evidence was sufficient to sustain a

conviction, viewing the evidence in the light most favorable to the government.

United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). We must affirm a

defendant’s convictions unless there is no reasonable construction of the evidence

under which the jury could have found the defendant guilty beyond a reasonable

doubt. Id. All reasonable inferences and credibility choices must be made in

favor of the jury’s verdict. United States v. Massey, 89 F.3d 1433, 1438 (11th Cir.

1996).

To support a conviction for possession with the intent to distribute a

controlled substance, the government must establish beyond a reasonable doubt

that the defendant knowingly possessed the drugs with the intent to distribute

them. United States v. Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009),

cert. denied, 130 S.Ct. 1562 (2010). Each of these elements can be proved by

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Moorer preserved his challenge by moving for judgment of acquittal at the close of the

government’s case. Moorer did not present any defense witnesses or evidence.

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direct or circumstantial evidence. United States v. Miranda, 425 F.3d 953, 959

(11th Cir. 2005). We allow an inference of the intent to distribute based on the

amount of the drug involved. United States v. Hernandez, 433 F.3d 1328, 1333

(11th Cir. 2005). Additionally, ‘the existence of implements such as scales

commonly used in connection with the distribution of cocaine’ may serve as

circumstantial proof of the intent to distribute cocaine. United States v. Poole, 878

F.2d 1389, 1392 (11th Cir. 1989). A defendant’s prior convictions for drug

offenses are also admissible for the limited purpose of determining whether the

defendant formed the requisite intent to distribute. United States v. Cardenas, 895

F.2d 1338, 1344 (11th Cir. 1990).

In this case, we conclude that the evidence was sufficient to support the

verdict. The evidence at trial showed that Moorer possessed cocaine in an amount

inconsistent with personal use. Specifically, authorities found cocaine, a firearm,

a digital scale with cocaine residue, and multiple bundles of money during the

searches of Moorer’s residence and car. Furthermore, the jury was permitted to

infer the intent to distribute based on the quantity of drugs involved and Moorer’s

prior convictions for controlled substance offenses. Accordingly, there was

sufficient evidence to convict Moorer of the charge and we affirm his conviction.

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II. Sentencing

Moorer argues that the district court erred in treating his conviction as a

“controlled substance offense” for purposes of calculating the applicable advisory

guideline range because the 14 grams of cocaine involved supported a finding of

only simple possession, which does not constitute a controlled substance offense

under the Armed Career Criminal provision or the career offender guideline.

“[A] sentence may be reviewed for procedural or substantive

unreasonableness,” and we review both under an abuse of discretion standard.

United States v. Ellisor, 522 F.3d 1255, 1273, n.25 (11th Cir. 2008). In reviewing

whether a sentence is reasonable, we must ensure, first, that the district court did

not commit a significant procedural error, “such as failing to calculate (or

improperly calculating) the guidelines range, treating the guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” Gall v.

United States, 552 U.S. 38, 51 (2007). “[T]he sentencing judge should set forth

enough to satisfy the appellate court that he has considered the parties’ arguments

and has a reasoned basis for exercising his own legal decisionmaking authority.”

United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (citation and

quotation omitted). But the district court need not discuss or explicitly state on the

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record each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005). “Rather, an acknowledgment by the district judge that he or she has

considered the § 3553(a) factors will suffice.” United States v. Amedeo, 487 F.3d

823, 832 (11th Cir. 2007).

Once we ensure that the sentence is procedurally sound, we must then

determine whether the sentence is substantively reasonable in light of the

§ 3553(a) factors. Gall, 552 U.S. at 51. The sentencing court shall impose a

sentence “sufficient, but not greater than necessary” to comply with the purposes

of sentencing set forth in § 3553(a)(2), namely, to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense, deter

criminal conduct, protect the public from further criminal conduct by the

defendant, and provide the defendant with needed educational training, vocational

training, medical care, or other correctional treatment in the most effective

manner. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must

also consider the nature and circumstances of the offense, the history and

characteristics of the defendant, the kinds of sentences available, the applicable

guideline range, the pertinent policy statements of the Sentencing Commission, the

need to avoid unwarranted sentencing disparities, and the need to provide

restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).

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“The review for substantive unreasonableness involves examining the

totality of the circumstances, including an inquiry into whether the statutory

factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). “[T]he party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in the light of

both [the] record and the factors in section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005).

To determine the applicable base offense level for a defendant who qualifies

as an armed career criminal under 18 U.S.C. § 924(e), the court should consider

whether the defendant possessed the firearm in connection with a controlled

substance offense.2 U.S.S.G. § 4B1.4(b)(3)(A). The term “controlled substance

offense” for purposes of the Armed Career Criminal provision is defined as “an

offense under federal or state law, punishable by imprisonment for a term

exceeding one year, that prohibits the . . . possession of a controlled substance . . .

with intent to . . . distribute . . . .” U.S.S.G. § 4B1.2(b).

2

The district court alternatively found that Moorer qualified as a career offender under

U.S.S.G. § 4B1.1. That guideline requires that the instant offense of conviction must be a felony

that is either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). The

definition of “controlled substance offense” for purposes of the career offender guideline is the

same as that for the Armed Career Criminal provision.

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Contrary to Moorer’s argument, this was not a case of simple possession. As

noted above, the evidence was sufficient to establish that Moorer possessed the

cocaine with the intent to distribute it. This crime falls squarely within the

definition of a “controlled substance offense” under § 4B1.4. Thus, the district

court properly considered the conviction a “controlled substance offense” and

calculated the advisory guideline imprisonment range according to the Armed

Career Criminal (or alternatively, the Career Offender) sentencing provision.

There was no procedural error.

Additionally, Moorer’s sentence is substantively reasonable. The 262-

month sentence is at the low end of the resulting guideline range, and significantly

lower than the 360-month statutory maximum permitted under 21 U.S.C.

§ 841(b)(1)(C) as enhanced for Moorer’s prior felony drug offenses. See

Gonzalez, 550 F.3d at 1324 (concluding that sentence was reasonable it part

because it was well below statutory maximum). Furthermore, the district court

demonstrated its consideration of the § 3553(a) factors, and particularly Moorer’s

criminal history, when imposing Moorer’s sentence. Accordingly, we affirm the

sentence imposed.

AFFIRMED.

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