United States v. Dyshawn Moss

• Court: Court of Appeals for the Third Circuit
• Decided: November 5, 2024
• Docket: 23-2638
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

Nos. 23-2638 & 23-3133 ____________

UNITED STATES OF AMERICA v.

DYSHAWN MOSS, aka Sharky, aka Dyshaun Moss, Appellant ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-19-cr-00701-001) District Judge: Honorable Michael A. Shipp ____________

Submitted under Third Circuit L.A.R. 34.1(a) November 1, 2024

Before: HARDIMAN, PHIPPS, and FREEMAN, Circuit Judges.

(Filed: November 5, 2024)

____________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Dyshawn Moss appeals his judgment of conviction and sentence after a jury

convicted him of drug trafficking and gun-related crimes. We will affirm.

I

In 2019, the Drug Enforcement Administration (DEA) began investigating Moss

in New Jersey. Several times agents observed Moss meeting with Marquis Benton, whom

they believed to be Moss’s co-conspirator. After they apprehended Benton at a storage

unit in Freehold that contained large amounts of narcotics, DEA agents went to Moss’s

apartment in Manchester. When Moss left his apartment, the agents arrested him, read

him Miranda warnings, and explained that he was being charged with drug distribution.

Once detained, Moss verbally consented to a search of his apartment, where officers

found large quantities of fentanyl, heroin, and cocaine. They also found equipment for

processing and distributing drugs, $150,000 in cash, and a loaded 9-millimeter handgun.

Moss was transported to the local police department for questioning, where agents

again read him his Miranda rights. After Moss signed a Miranda waiver form and a

consent-to-search form, he confessed that he had been buying fentanyl, heroin, and

cocaine since 2018. Moss said he processed the drugs in his apartment before selling

them to customers. And he told the agents that he acquired the handgun to protect himself

after he began dealing drugs.

A federal grand jury indicted Moss on five charges: (1) possession with intent to

distribute 400 grams or more of fentanyl under 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); (2)

2 possession with intent to distribute 500 grams or more of cocaine under 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B); (3) possession with intent to distribute 100 grams or more of

heroin under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (4) possession of a firearm by a

convicted felon under 18 U.S.C. § 922(g)(1); and (5) possession of a firearm in

furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A).

Before trial, Moss moved to suppress both the evidence seized from his apartment

and the confession he gave at the police station. At the suppression hearing, DEA agents

testified that when they arrested Moss, they told him that he was free to refuse consent.

But the agents said that Moss cooperated willingly and showed them the key that opened

his apartment. The Government produced the waiver and the consent-to-search forms

bearing Moss’s signature. Moss contradicted the agents’ testimony, claiming that he did

not consent to a search of his apartment, he was not read his Miranda rights, and he did

not sign the consent forms.

The District Court credited the agents’ testimony and denied Moss’s motions to

suppress. The Court found that Moss had voluntarily consented to the search of his

apartment and to the relinquishment of his Miranda rights. And after reviewing

documents bearing Moss’s signature, the District Court concluded that Moss had signed

the consent forms.

Moss then requested an evidentiary hearing under Franks v. Delaware, 438 U.S.

154 (1978), to contest his arrest. He argued there was no probable cause for his arrest

because the affidavit supporting the criminal complaint against him falsely stated that

3 there was video footage of him accessing the Freehold storage unit. After viewing the

video, the District Court agreed that the man on the video was not Moss. But because

probable cause independent of the surveillance video supported the complaint, the

District Court denied Moss’s motion.

After trial, a jury convicted Moss on all counts. His statutory minimum term of

imprisonment was 20 years. See 18 U.S.C. § 924(c)(1)(A)(i); 21 U.S.C. § 841(b)(1)(A).

The Presentence Investigation Report (PSR) stated that Moss was responsible for a

converted drug weight of 4,090.95 kilograms, which resulted in a base offense level of 32

under the United States Sentencing Guidelines. See U.S.S.G. § 2D1.1(c)(4). The PSR

added four points because Moss had maintained a premises for the purpose of

manufacturing or distributing a controlled substance and obstructed justice by falsely

testifying during the suppression hearing. See U.S.S.G. §§ 2D1.1(b)(12); 3C1.1. That

brought his total offense level to 36. When combined with Moss’s criminal history

category of III, his initial Guidelines range was 235 to 293 months’ imprisonment. But

because Moss’s § 924(c)(1)(A) conviction required at least a 60-month consecutive

sentence, his final Guidelines range was 295 to 353 months’ imprisonment.

At sentencing, Moss objected to the PSR’s findings about the drug quantity and

the application of the two enhancements. The District Court rejected his arguments and

sentenced him to the statutory minimum (240 months’ imprisonment).

4 II 1

Moss first argues that the District Court erred in denying his motions to suppress

because he did not voluntarily consent to a search of his apartment or a waiver of his

Miranda rights. He contends that the Government did not show that his consent was

voluntary because the agents’ testimony was not credible and the signatures on the

consent-to-search and waiver forms were forged. According to Moss, he did not:

(1) verbally consent to a search of his apartment; (2) receive Miranda warnings; or

(3) sign any waiver forms. As a result, Moss argues, the search of his apartment violated

his Fourth Amendment rights.

The problem for Moss is that the District Court found that the agents were credible

and he was not. And Moss has not shown that the District Court’s credibility

determinations or its later findings of voluntary consent were clearly erroneous. See

United States v. Williams, 898 F.3d 323, 332 (3d Cir. 2018). One of the agents testified

that Moss was eager to help in any way possible, that he consented to having his

apartment searched, and that he showed them the key to his apartment. Based on that

testimony, which another agent corroborated, the District Court found that the

Government satisfied its burden of proving that Moss voluntarily consented to the search

of his apartment. Because that finding was supported by evidence, it was not clear error.

Id.

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to review the final judgment under 28 U.S.C. § 1291 and the sentence under 18 U.S.C. § 3742(a).

5 As for Moss’s motion to suppress his confession, the Government had to

demonstrate by a preponderance of the evidence that Moss voluntarily, knowingly, and

intelligently waived his right not to testify against himself after being Mirandized. United

States v. Jacobs, 431 F.3d 99, 108 (3d Cir. 2005). At the suppression hearing, one of the

agents testified that he first read Moss his Miranda warnings when he arrested Moss and

that he read them again a few hours later in the interview room at the Manchester Police

Department. Another agent corroborated that testimony and said that Moss was relaxed

and cooperative before and during the videotaped interview. The Government also

introduced the waiver form with Moss’s signature, which the District Court determined

was not forged. Based on that evidence, the District Court found that Moss had

voluntarily waived his Fifth Amendment rights and admitted evidence of his subsequent

confession. That finding was supported by ample evidence. Williams, 898 F.3d at 332.

III

Moss also argues that the District Court erred in denying his motion for a Franks

hearing to contest his arrest because the affidavit incorrectly identified him as the person

who had visited the drug-filled storage locker in Freehold. According to Moss, because

the affidavit contained a false statement, the agents arrested him without probable cause

in violation of the Fourth Amendment.

The District Court properly denied Moss’s motion for a Franks hearing. Moss had

to make a “substantial preliminary showing” that false statements in the affidavit were

made “knowingly or with reckless disregard for the truth” and were “material to the

6 finding of probable cause.” United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006)

(internal quotation marks omitted). Even if we assume Moss met the first requirement, he

cannot demonstrate that any false statement was material. The affidavit also stated that

Moss was selling drugs to a confidential informant. So there was probable cause that

Moss was engaging in a drug conspiracy for reasons unrelated to the storage locker. We

therefore hold that the District Court did not err when it denied Moss’s request for a

Franks hearing, and there was no Fourth Amendment violation.

IV

Moss next attacks his firearm convictions under 18 U.S.C. §§ 922(g)(1) and

924(c). First, he argues that his § 922(g)(1) conviction violates his Second Amendment

rights since there was no evidence that his possession of the firearm posed a risk to

anyone.

Moss cannot prevail because he did not timely make this argument before the

District Court, and he cannot satisfy the plain-error standard. See Puckett v. United

States, 556 U.S. 129, 135 (2009). As we explained in United States v. Dorsey, which was

decided after Moss filed his brief, the Supreme Court has not yet ruled on the

constitutionality of 18 U.S.C. § 922(g)(1). 105 F.4th 526, 530–32 (3d Cir. 2024). So

“[a]ny Second Amendment error inherent in [Moss’s] conviction” under § 922(g)(1) was

not plain. Id. at 533.

Second, Moss argues that the Government failed to prove that he possessed the

handgun found in his apartment in furtherance of a drug-trafficking crime, as is required

7 for a § 924(c)(1)(A) conviction. According to Moss, there was no evidence that he used

or possessed the handgun. We disagree.

A rational juror easily could have found beyond a reasonable doubt that Moss

possessed the handgun “to advance or promote” a drug-trafficking crime. United States v.

Iglesias, 535 F.3d 150, 157 (3d Cir. 2008) (cleaned up). Moss admitted he received the

gun “for protection” shortly after he began selling drugs. See United States v. Walker,

657 F.3d 160, 173 (3d Cir. 2011) (defendant keeping a firearm “for protection” supported

the inference that he possessed it in furtherance of a drug-trafficking crime). And Moss

stored the gun in a hidden compartment in a couch, where he kept the drugs. See United

States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004) (firearm’s accessibility and

“proximity to drugs or drug profits” is probative of whether the gun was used in

furtherance of a drug-trafficking crime). Taken as a whole, that evidence was sufficient

for a reasonable juror to find Moss guilty beyond a reasonable doubt of violating

§ 924(c)(1)(A). See United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir.

2013).

V

Finally, Moss offers four challenges to his sentence. None is persuasive.

First, he cites Apprendi v. New Jersey to argue that a jury had to determine the

drug quantity beyond a reasonable doubt because “any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury.” 530 U.S.

466, 490 (2000). But that principle does not apply here because the drug quantity

8 attributable to Moss affected only his advisory sentencing range, not his statutory

maximum sentence. See Alleyne v. United States, 570 U.S. 99, 116 (2013). So Moss had

no right to have a jury determine the drug quantity. United States v. Freeman, 763 F.3d

322, 335–36 (3d Cir. 2014).

Second, Moss challenges the District Court’s factual findings on the quantity of

drugs attributable to him. According to Moss, the District Court erred when it relied on

an inaccurate drug conversion weight in the PSR. We disagree. The Court’s

determination that Moss was responsible for between 3,000 and 10,000 grams of

converted drug weight was based on trial exhibits which were corroborated by agents and

forensic chemists. So there was credible evidence to support the District Court’s finding.

See Id. at 337.

Third, Moss argues that the District Court erred in applying a two-level

enhancement for maintaining a premises for the purpose of manufacturing or distributing

a controlled substance. See U.S.S.G. § 2D1.1(b)(12). According to Moss, the

Government did not provide any evidence that he used his apartment to make or

distribute drugs. The record shows otherwise. The enhancement required that Moss “(1)

knowingly (2) opened or maintained any place (3) for the purpose of manufacturing or

distributing a controlled substance.” United States v. Carter, 834 F.3d 259, 261 (3d Cir.

2016) (cleaned up). Agents seized large quantities of heroin, fentanyl, and cocaine

throughout Moss’s apartment. They also found equipment for processing and distributing

9 drugs, $150,000 in cash, and a loaded handgun. The District Court’s enhancement was

well supported.

Moss’s fourth and final challenge to his sentencing is that the District Court erred

when it added a two-level obstruction of justice enhancement because Moss committed

perjury at his suppression hearing. See U.S.S.G. § 3C.1.1. Moss contends that he did not

lie and the agents who contradicted him were not credible. This argument is belied by the

evidence. At the suppression hearing, Moss repeatedly testified that he did not sign the

forms that authorized the agents to search his home or waive his Miranda rights, even

though the Government produced those documents bearing his signature verified by other

documents. He also denied possessing the drugs or the handgun, which contradicted the

admissions he made during his lawfully recorded confession. The District Court did not

err, much less clearly err, when it applied the obstruction of justice enhancement. See

United States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997).

* * *

For the reasons stated, we will affirm the District Court’s judgment.