NOT RECOMMENDED FOR PUBLICATION File Name: 23a0476n.06
No. 22-5389
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Nov 14, 2023 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF TENNESSEE DECARDO MOORE, ) Defendant-Appellant. ) OPINION ) )
Before: SUTTON, Chief Judge; CLAY and LARSEN, Circuit Judges.
CLAY, Circuit Judge. Defendant Decardo Moore appeals his sentence of life
imprisonment after pleading guilty to one count of robbery affecting interstate commerce, in
violation of 18 U.S.C. § 1951, three counts of aiding and abetting robbery affecting interstate
commerce, in violation of 18 U.S.C. § 1951 and 18 U.S.C. § 2, one count of using a firearm in
relation to a crime of violence, in violation of 18 U.S.C. § 1924(c), and three counts of aiding and
abetting the use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 1924(c)
and 18 U.S.C. § 2. Moore also appeals his conviction, arguing that his guilty plea lacked a factual
basis because the government failed to prove venue. For the reasons set forth below, we AFFIRM
Moore’s conviction and sentence.
I. BACKGROUND
A. Factual Background
Moore’s sentence of life imprisonment stems from his participation in four armed
robberies. The first robbery took place on March 28, 2019 at an Exxon gas station located in No. 22-5389, United States v. Moore
Memphis, Tennessee. Moore robbed the Exxon station at gunpoint. At that time, Kamir Versi
was behind the cash register. After Versi handed Moore money, Moore fired his gun and then fled
the gas station. The bullet from Moore’s gun hit Versi in the chest, and Versi died at the scene of
the incident.
The three remaining robberies took place on June 28, 2019 at three other business
establishments located in Memphis, Tennessee: Mapco Express, Murphy Express, and a second
Exxon location. Moore’s role in these robberies varied. At Mapco Express, Moore and one other
individual, both armed, robbed the business at gunpoint. At Murphy Express and the second
Exxon station, two other individuals robbed the businesses at gunpoint, while Moore acted as a
getaway driver.
In connection with the four robberies, a grand jury returned an eight-count indictment
against Moore. Count 1 charged Moore with robbery affecting interstate commerce, in violation
of 18 U.S.C. § 1951. Counts 3, 5, and 7 charged Moore with aiding and abetting robbery affecting
interstate commerce, in violation of 18 U.S.C. § 1951 and 18 U.S.C. § 2. Count 2 charged Moore
with using, carrying, brandishing, and discharging a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c). Lastly, Counts 4, 6, and 8 charged Moore with aiding
and abetting the using, carrying, and brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. Moore pleaded guilty to all counts.
B. Moore’s Sentencing
Prior to sentencing, the presentence report (PSR) determined that Moore’s Guidelines
range was life imprisonment, based on a total offense level of 43 and a criminal history category
of VI. The total offense level was based on a cross-reference to first-degree murder, USSG
§ 2A1.1, which was referenced in the guideline applicable to Moore’s robbery charge (Count 1).
-2- No. 22-5389, United States v. Moore
Although Moore’s Guidelines range was life, some of Moore’s counts (Counts 1, 3, 5, and 7)
carried statutory maxima. Thus, the PSR recommended a sentence of 1,332 months’
imprisonment, followed by three years of supervised release.
The district court sentenced Moore to a total sentence of life imprisonment, specifically
sentencing Moore to life on Count 2. At sentencing, the district court asked the probation officer
who had prepared the PSR whether a 1,332 month sentence (111 years) differed in practice from
life imprisonment. The probation officer responded that life imprisonment was a Guidelines
sentence and that, even with good conduct time, Moore would have to serve at least 94 years of a
term-of-years sentence. After this exchange, the district court sentenced Moore to consecutive
sentences of life imprisonment on Count 2; 240 months per count on Counts 1, 3, 5, and 7; and 84
months per count on Counts 4, 6, and 8. The district court also ran most of these sentences
consecutively to pending state criminal charges.
II. DISCUSSION
On appeal, Moore argues that his sentence is procedurally and substantively unreasonable. He
also argues that the government failed to prove that venue lay in the Western District of Tennessee,
rendering his guilty plea invalid.
A. Moore’s Sentence
i. Procedural Reasonableness
This Court reviews a defendant’s sentence for substantive and procedural reasonableness.
United States v. Gates, 48 F.4th 463, 468–69 (6th Cir. 2022). A challenge to the procedural
reasonableness of a sentence is reviewed for plain error if the “sentencing judge asks” for
objections and “the relevant party does not object.” United States v. Vonner, 516 F.3d 382, 385
(6th Cir. 2008) (en banc). Because the district court asked Moore for objections, and Moore did
-3- No. 22-5389, United States v. Moore
not object to the procedural reasonableness of his sentence, the procedural reasonableness of his
sentence is reviewed for plain error. Plain error occurs if the district court committed an “(1) error
(2) that was obvious or clear, (3) that affected [the] defendant’s substantial rights[,] and (4) that
affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v.
Wallace, 597 F.3d 794, 802 (6th Cir. 2010).
Moore raises several challenges to the procedural reasonableness of his sentence. He
argues that his sentence is procedurally unreasonable because the district court calculated his
Guidelines range incorrectly, failed to explain how his mental health bore on sentencing, and failed
to explain why it ran his sentences consecutively. We address each argument in turn.
1. Calculation of Guidelines Range
A sentence is procedurally unreasonable when, for instance, the district court calculates the
defendant’s Guidelines range incorrectly. Gates, 48 F.4th at 469. Moore argues that the district
court’s Guidelines calculation was erroneous because the court applied a cross-reference to first-
degree murder that he contends is inapplicable.
Moore’s applicable guideline, USSG § 2B3.1, ordinarily establishes a base offense level
of 20 for a robbery conviction. USSG § 2B3.1(a). However, USSG § 2B3.1(c) directs the district
court to cross-reference USSG § 2A1.1, which carries a base offense level of 43 “[i]f a victim was
killed under circumstances that would constitute murder under 18 U.S.C. § 1111.” 18 U.S.C.
§ 1111(a) defines murder as “the unlawful killing of a human being with malice aforethought” and
specifies that “[e]very murder . . . committed in the perpetration of, or attempt to perpetrate,
any . . . robbery . . . is murder in the first degree.” Malice aforethought may be inferred when a
defendant “grossly deviates from the standard of care” such that “he must have been aware of a
-4- No. 22-5389, United States v. Moore
serious risk of death or serious bodily injury.” United States v. Conatser, 514 F.3d 508, 523 (6th
Cir. 2008) (quoting United States v. Sheffey, 57 F.3d 1419, 1430 (6th Cir. 1995)).
In this case, the district court applied the cross-reference to first-degree murder because it
determined that Moore intended to shoot or kill Versi. It was not clear error for the district court
to discredit Moore’s testimony to the contrary. See United States v. Wright, 747 F.3d 399, 413
(6th Cir. 2014) (noting that factual determinations during sentencing are reviewed for clear error).
The record in this case does not produce “the definite and firm conviction that a mistake has been
committed,” as required for clear error. United States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002)
(citation omitted). A surveillance video captured the robbery, and it shows Moore pointing the
gun at Versi and shooting at close range before fleeing the store. These facts adequately support
a conclusion that Moore was aware of a risk of death or serious bodily injury to Versi.
Furthermore, the district court concluded that regardless of intent, Moore’s conduct constituted
murder under § 1111 because he caused a death during a robbery and therefore committed felony
murder. That conclusion is consistent with our case law. See United States v. Poindexter, 44 F.3d
406, 409–10 (6th Cir. 1995) (applying USSG § 2A1.1 to felony murder). In light of this record,
the district court did not plainly err by applying the cross-reference to first-degree murder to
calculate Moore’s Guidelines range. Furthermore, because the district court adequately concluded
that Moore intended to shoot or kill Versi, we reject Moore’s related argument that the district
court should have departed downward because the killing was not knowing or intentional. See
USSG § 2A1.1 n.2(B).
We briefly discuss another aspect of the district court’s Guidelines calculation. The record
suggests that prior to sentencing Moore to life imprisonment on Count 2, the probation officer and
court treated the first-degree murder cross-reference as applicable to Count 2, whereas it applies
-5- No. 22-5389, United States v. Moore
to Count 1. Ultimately, in this case, such an error would not be plain because it does not affect
Moore’s substantial rights: Moore’s Guidelines range was life imprisonment, and Count 2 carries
a maximum sentence of life. Moreover, the PSR’s recommended sentence of 1,332 months
(111 years) would have had the effect of a life sentence for Moore because, even with good conduct
time, he would have had to serve approximately 94 years of his term. While such an error would
not be plain under these circumstances, we caution sentencing courts to carefully identify the
guidelines that apply to each count of a multi-count judgment.
2. Adequacy of Explanation
Moore also argues that the district court inadequately explained how his mental health
history bore on his sentence. A sentence is procedurally unreasonable when the district court fails
to explain the basis for it. United States v. Nichols, 897 F.3d 729, 737 (6th Cir. 2018) (citation
omitted). While failure to respond to one of the defendant’s arguments is not necessarily
procedurally unreasonable, see, e.g., United States v. Duane, 533 F.3d 441, 453 (6th Cir. 2008), a
district court is more likely to have erred when it is not evident whether it “even understood [the]
Defendant’s argument,” see Wallace, 597 F.3d at 806. Ultimately, “the record must ‘make[] clear
that the sentencing judge considered the evidence and arguments.’” Id. at 805 (alteration in
original) (quoting Vonner, 516 F.3d at 387).
We conclude that the district court’s consideration of Moore’s mental health satisfies these
requirements. The district court noted that it had “taken into account” Moore’s “mental and
emotional diagnoses” and recommended that the Bureau of Prisons offer “mental health
counseling and treatment,” including cognitive behavioral therapy. Tr. Sentencing Hr’g, R. 223,
Page ID #916–17. While the district court could have explained in more detail how Moore’s
mental health bore on his sentence, the record demonstrates that the district court considered
-6- No. 22-5389, United States v. Moore
Moore’s mental health and understood it might bear on sentencing, as required by our case law.
See United States v. Allen, 665 F. App’x 531, 536–37 (6th Cir. 2016) (upholding procedural
reasonableness of a sentence where the district court acknowledged defendant’s specific mental
health concerns and recommended treatment).
Moore also argues that the district court failed to explain why it ran his sentences
consecutively. A district court’s decision to impose a consecutive or concurrent sentence may be
“intertwined” with its balancing of the § 3553(a) factors. United States v. Johnson, 640 F.3d 195,
208 (6th Cir. 2011). Additionally, when a district court is required to run sentences consecutively,
this Court has sometimes relaxed the requirement for explanation. See United States v. Duncan,
No. 22-5370, 2023 WL 5447338, at *3–4 (6th Cir. Aug. 24, 2023) (holding that sentences were
procedurally reasonable where USSG § 5G1.2(d) required consecutive sentencing).
In this case, the district court was required to run the sentences on Counts 2, 4, 6, and 8
consecutively by 18 U.S.C. § 924(c)(1)(D)(ii), which prohibits a “term of imprisonment imposed
on a person under this subsection [to] run concurrently with any other term of imprisonment.” The
district court was also required by USSG § 5G1.2(d) to stack Moore’s sentences on Counts 1, 3,
5, and 7 separately “to produce a combined sentence equal to the total punishment.” See United
States v. Graham, 327 F.3d 460, 465 (6th Cir. 2003) (quoting USSG § 5G1.2(d)); id. (“[I]n cases
in which the sentence on the count with the highest statutory maximum is less than the total
punishment, courts must stack the sentences that do not carry mandatory consecutive
sentences . . . .”).
In any case, even if the district court could have run some of Moore’s sentences
concurrently, it did not plainly err because Moore’s substantial rights were not affected. See
Wallace, 597 F.3d at 802. The district court’s decision to specify term-of-years sentences for
-7- No. 22-5389, United States v. Moore
certain counts was required because Counts 1, 3, 5, and 7 have statutory maxima; however, running
these sentences consecutively ultimately does not alter Moore’s total sentence of life
imprisonment, which was based on his life sentence on Count 2.
The authorities Moore cites do not yield a different result. One case, United States v.
Nikolovski, involved an above-Guidelines sentence. 565 F. App’x 397, 403 (6th Cir. 2014) (per
curiam). However, this Circuit has required less explanation for within-Guidelines sentences such
as Moore’s sentence. See United States v. Steeby, 350 F. App’x 50, 53 (6th Cir. 2009) (citing Rita
v. United States, 551 U.S. 338, 358–59 (2007)). As to United States v. Cannon, that case involved
an unusual situation in which the district court both imposed an “above-guideline-range total
punishment” for a reduced sentence and indicated that the reduced sentence was within the
Guidelines range. 692 F. App’x 228, 233–34 (6th Cir. 2017). Because the district court did not
explain this “puzzle,” id. at 231, this Circuit reversed, id. at 234. Accounting for the fact that
Moore’s within-Guidelines sentence differs from these cases, the district court did not plainly err
by running Moore’s sentences consecutively.
ii. Substantive Reasonableness
Because Moore’s sentence is procedurally reasonable, this Court must now consider the
substantive reasonableness of his sentence. This Court reviews the substantive reasonableness of
a sentence for abuse of discretion. See Vonner, 516 F.3d at 392. “A district court abuses its
discretion when it applies the incorrect legal standard, misapplies the correct legal standard, or
relies upon clearly erroneous findings of fact.” United States v. Pugh, 405 F.3d 390, 397 (6th Cir.
2005) (citation omitted).
Although “[a] life sentence is an extraordinary punishment,” this Circuit evaluates the
substantive reasonableness of such a sentence as it would other terms of imprisonment. See United
-8- No. 22-5389, United States v. Moore
States v. Messer, 71 F.4th 452, 463 (6th Cir. 2023). A sentence must be “sufficient but not greater
than necessary . . . to comply with the purposes of § 3553(a).” Gates, 48 F.4th at 476–77 (citation
omitted). A claim that a sentence is substantively unreasonable is a claim that “the court placed
too much weight on some of the § 3553(a) factors and too little on others in sentencing the
individual.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018); see also United States v.
Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019). When a sentence falls within the Guidelines range,
it receives a rebuttable presumption of reasonableness. United States v. Callahan, 801 F.3d 606,
626 (6th Cir. 2015). Applying these standards, this Circuit has previously determined that a district
court did not abuse its discretion in upholding a life sentence where the life sentence fell within an
individual’s Guidelines range, and the district court duly considered the § 3553(a) factors. See,
e.g., Messer, 71 F.4th at 463; United States v. Abdulmutallab, 739 F.3d 891, 908 (6th Cir. 2014);
United States v. Sherrill, 972 F.3d 752, 774 (6th Cir. 2020).
Because Moore’s sentence is within his Guidelines range, we presume his sentence is
reasonable. To rebut this presumption, Moore argues that his sentence is substantively
unreasonable in light of his mental health history, his acceptance of responsibility and cooperation
during the investigation, and the fact that he did not intend to shoot or kill Versi. Although a
district court’s sentence should account for a defendant’s mental illness, “the court is not required
to grant a defendant’s motion for a downward variance whenever a defendant suffers from such
an illness.” United States v. Owen, 940 F.3d 308, 317 (6th Cir. 2019). Thus, this Circuit has
previously affirmed a sentence despite a defendant’s mental health history where the defendant’s
criminal conduct was “very serious,” the district court determined the need for public protection
was high, and the sentence was within the Guidelines range. Id. at 317–18; see also United States
-9- No. 22-5389, United States v. Moore
v. Loos, 66 F.4th 620, 625 (6th Cir. 2023); United States v. Tolbert, 459 F. App’x 541, 548–49
(6th Cir. 2012).
In this case, the district court did not abuse its discretion. At sentencing, the district court
acknowledged Moore’s mental health history; however, it determined that a life sentence was
appropriate given the balance of the § 3553(a) factors. The district court first considered the nature
and circumstances of Moore’s offense, emphasizing the “serious” and “violent” nature of Moore’s
crimes and the “callous nature” of the shot that killed Versi. Tr. Sentencing Hr’g, R. 223, Page ID
#909. It then considered Moore’s personal history and characteristics, discussing Moore’s history
of escalating criminal behavior, which it determined prior sentences had not deterred. It also
considered the available sentences, discussing both the term-of-years sentence recommended in
the PSR and a life sentence. Finally, it considered the mental health services that the Bureau of
Prisons might provide for Moore.
In balancing the § 3553(a) factors, the district court also considered Moore’s argument that
he did not intend to shoot Versi. However, as discussed supra Section II.A.i, the district court did
not err when it discredited Moore’s testimony on this matter. The district court also heard
arguments about Moore’s willingness to take responsibility and cooperate with the judicial
process; however, it concluded that the seriousness of Moore’s offenses, Moore’s personal history,
and the need for deterrence justified Moore’s life sentence. Given this record, the district court
did not abuse its discretion by sentencing Moore to life imprisonment.
B. Venue
As to venue, Moore argues that his guilty plea is invalid because his plea colloquy does not
establish that venue lay in the Western District of Tennessee. However, a district court may accept
a guilty plea like Moore’s in the absence of a factual basis for venue. See United States v. Mobley,
- 10 - No. 22-5389, United States v. Moore
618 F.3d 539, 546 (6th Cir. 2010) (concluding that “consideration of venue cannot be part of the
required 11(b)(3) factual basis determination”). That guilty plea, in turn, waives Moore’s ability
to raise non-jurisdictional issues, United States v. Ormsby, 252 F.3d 844, 848 (6th Cir. 2001),
including venue, see Mobley, 618 F.3d at 546 & nn.3–4.
This Circuit has identified an exception to the rule that a guilty plea waives a venue
challenge, which applies when a defect to venue “is not apparent on the face of the indictment.”
See Mobley, 618 F.3d at 546 n.4 (also requiring that “the defendant does not have notice of the
defect through other means” (internal quotation marks and citation omitted)). However, this
exception is inapplicable here. To the contrary, Moore’s indictment makes clear that there was no
defect in venue: For example, it provides a Memphis, Tennessee, address for the location of each
robbery. Moore’s guilty plea was valid, and because Moore pleaded guilty, he waived his venue
challenge.
III. CONCLUSION
For the reasons set forth above, we AFFIRM Moore’s conviction and his sentence.
- 11 -