United States v. Gregory Moore

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 4, 2018
• Docket: 16-15519
• Status: Unpublished

Opinion

Case: 16-15519 Date Filed: 04/04/2018 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-15519 ________________________

D.C. Docket No. 0:14-cr-60312-KAM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY MOORE,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(April 4, 2018)

Before ED CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, * District Judge.

PER CURIAM:

* Honorable Eleanor Louise Ross, United States District Judge for the Northern District of Georgia, sitting by designation. Case: 16-15519 Date Filed: 04/04/2018 Page: 2 of 13

A jury found Gregory Moore guilty of five counts of carjacking, 18 U.S.C.

§ 2119(1), and five accompanying counts of carrying and using a firearm during

and in relation to crimes of violence, id. § 924(c)(1)(A)(ii), (iii). He was sentenced

to 1,452 months imprisonment, which reflected the mandatory consecutive terms

for the firearms charges. He appeals his convictions and sentence.

I.

A.

Moore met Danielle Roland in the summer of 2014, and the two began

dating. When Roland broke up with Moore a few months later, Moore grew angry,

began calling her repeatedly, and threatened to kill her. One night Moore broke

into her home, and Roland and her new boyfriend found Moore asleep in her bed

with a gun. The police were called to the scene, and Roland moved out the next

day.

Two days later, on December 2, 2014, Moore committed a series of

carjackings in his attempt to get to and from Roland’s workplace, Reimer

Insurance. First, he stole a Suzuki Aerio while it was stopped at an intersection.

He climbed into the back of the car, pointed a gun toward the front, and ordered

the driver to drive onto the highway. When she did not, Moore pulled the

emergency break and ordered the driver and her son out of the car. He drove the

Suzuki until he wrecked it. Moore then approached a Chevy Silverado stopped at a

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stoplight and told the driver to “get the fuck out of the car” while pointing a gun at

his head. He drove that truck to Reimer, pulling into the parking lot a few minutes

before Roland and her boyfriend arrived.

When Moore saw Roland’s car driving into the lot, he ran toward it and

began shooting into the front windshield. Roland tried to escape by driving down a

back alley, but it was blocked. Moore walked up to the car, shot Roland five times

in the stomach and legs, pulled her out of the car by her head, and “pistol whipped”

her, while saying “Bitch, Imma kill you.” Moore also shot Roland’s boyfriend,

who managed to escape the car but died later that day from gunshot wounds.

Leaving Roland for dead, Moore climbed back into the truck and drove toward I-

95.

While driving down the interstate, Moore stopped the truck twice and

attempted to steal the cars stopped behind him. The driver of a Kia Soul testified

that Moore stopped the truck, got out, and walked toward him with a gun pointed

toward his face. Fearing for his life, the driver accelerated, hit Moore, and drove

away. A driver of a Saturn Outlook similarly testified that Moore stopped in front

of him, got out of the truck, and pointed a gun toward his face. Fearing for his life,

that driver also accelerated and drove away.

During this second encounter, Moore’s truck had continued forward and it

crashed into a cement wall located in the median. Stranded, Moore turned to a

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silver Mercedes stopped a few feet away. He walked toward the driver with a gun

pointed toward her head and told her to “get out of the car, bitch, or I’ll blow your

head off.” He then pulled her out of the car and fired a shot as she ran away.

Moore later abandoned the Mercedes along I-95 and went into hiding. FBI agents

found and arrested him a few days later, and a grand jury indicted him on five

counts of carjacking and five counts of carrying and using a firearm during and in

relation to crimes of violence.

B.

Before trial on those charges, Moore sought to exclude as irrelevant and

unduly prejudicial evidence of what happened at Roland’s home before the string

of carjackings began. He had broken into the home and was asleep with a gun in

Roland’s bed. He also sought to exclude evidence showing that after he was

arrested for the entry and then released, Moore went to Roland’s workplace and

shot her and her boyfriend, who died. The court denied both motions, finding that

evidence of the entry was relevant to Moore’s identity, intent, and motive, and that

evidence of the shooting was relevant because it was “inextricably intertwined”

with the carjackings and “pertain[ed] to the chain of events and explain[ed] the

context, motive and set-up of the charged crimes.” The court also found that under

Rule 403 evidence of both events was admissible because its probative value

outweighed any prejudicial effect. Although the court admitted evidence of both

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events, it gave a limiting instruction on prior acts evidence during trial and as part

of its final instructions, informing the jury that the evidence could be used to

establish only Moore’s intent, motive, or plan, but not “to decide whether Mr.

Moore engaged in the activity alleged in the indictment.”

At trial, the government called all of the carjacking victims, each of whom

testified that Moore took or attempted to take his or her car while pointing a gun in

their direction or at their face. The government also called a number of witnesses

to the shooting, including Roland, and submitted evidence showing that DNA from

Roland was found in what appeared to be a small blood stain in one of the

carjacked cars and that bullets and bullet casings found at Reimer matched the gun

found where Moore abandoned the fifth car. Last, the government presented the

testimony of Moore’s cousin, Jonathon Marion, and the mother of his child,

Tequila Ingram. While Moore was hiding with Marion and Ingram, he confessed

that he shot Roland and committed several carjackings to get to and from Reimer.

At the end of Ingram’s testimony the government asked her, “[W]hat is the

only thing that the Government ever has asked you to do?” Ingram responded,

“Not to bring up [Moore’s] priors.” The government then refined its question, “In

terms of your testimony and what you’re going to talk about today, what is the

only thing that we’ve ever asked of you?” To which Ingram responded, “To tell

the truth.” After that testimony, Moore moved for a mistrial because Ingram

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“gratuitously spouted out not to mention his priors.” Moore acknowledged that the

government was trying “to get her to say we’ve told you to tell the truth,” but

maintained that Ingram’s comment was “highly prejudicial.” The court denied the

motion but offered to read a curative instruction, which Moore declined.

After both sides rested, the jury found Moore guilty of the five carjackings

and the five correlating firearms charges. And the court, over Moore’s objections,

sentenced him to 1,452 months imprisonment. That sentence was the total of the

following ten sentences: 168 months, concurrent, on each of the five carjackings;

84 months, consecutive, on the first firearms offense; and 300 months, all

consecutive, on each of the four remaining firearms offenses. This is Moore’s

appeal.

II.

We review for an abuse of discretion the district court’s evidentiary rulings

and the denial of a mistrial. Vista Mktg., LLC v. Burkett, 812 F.3d 954, 979 (11th

Cir. 2016); United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007). We

review de novo constitutional sentencing issues and questions of statutory

interpretation. United States v. Harris, 741 F.3d 1245, 1248 (11th Cir. 2014);

United States v. Maturin, 499 F.3d 1243, 1245 (11th Cir. 2007).

Moore contends that the trial court abused its discretion by allowing the

government to introduce evidence that Moore entered Roland’s home and that he

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shot Roland and her boyfriend. He also contends that the court abused its

discretion by denying Moore’s motion for mistrial after Ingram referenced

Moore’s prior criminal history before the jury. And he contends that imposition of

four consecutive 300-month (25-year) sentences on four of the five firearms counts

are counter to the rule of lenity and violate the Eighth Amendment.

Moore argues that evidence showing that he broke into Roland’s house, was

found asleep with a gun in her bed, and that two days later he shot Roland and her

boyfriend was irrelevant and substantially more prejudicial than probative. We

disagree.

Moore first asserts that evidence of those other acts is irrelevant because its

only purpose was to illustrate his alleged criminal propensity, and under Federal

Rule of Evidence 404(b) “[e]vidence of a crime, wrong, or other act” is

inadmissible when used to show a person’s propensity to act in conformance with a

particular character trait. Fed. R. Evid. 404(b)(1). But Rule 404(b) applies only

when the disputed evidence is extrinsic to the charged offense. See United States

v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). Evidence is intrinsic, and

therefore outside the scope of Rule 404(b), when it is “inextricably intertwined”

with the evidence regarding the charged offense. Id.

Evidence that Moore planned to harm Roland is “inextricably intertwined”

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with the five carjackings. Each carjacking, though an independent crime, was part

of Moore’s larger plan to get to Roland’s workplace, shoot her, and then get away.

Evidence that Moore had been found in Roland’s bed two nights before and that he

shot Roland during the spree explains why Moore committed the carjackings and

was “necessary to complete the story of the crime.” Id.; see also United States v.

McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (“Evidence, not part of the crime

charged but pertaining to the chain of events[,] explaining the context, motive[,]

and set-up of the crime, is properly admitted if . . . [it] forms an integral and natural

part of an account of the crime, or is necessary to complete the story of the crime

for the jury.”) (quotation marks omitted). Evidence of the shooting also combatted

Moore’s primary defense that the government could not identify him as the person

who committed the carjackings. Multiple witnesses identified Moore as the

shooter, and the government’s physical evidence tied the shooting to the

carjackings. Roland’s DNA was found in a stain in one of the cars, and the gun

found near the fifth car matched bullets and casings found at Reimer.

Moore also asserts that the evidence should have been excluded because “its

probative value is substantially outweighed by a danger of . . . unfair prejudice.”

Fed. R. Evid. 403. Rule 403 is an extraordinary remedy and it should be “limited

to excluding matter of scant or cumulative probative force, dragged in by the heels

for the sake of its prejudicial effect.” United States v. Mills, 704 F.2d 1553, 1560

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(11th Cir. 1983) (quotation marks omitted). As explained above, the probative

value of the disputed evidence was great because it demonstrated Moore’s motive

and plan and countered Moore’s primary defense. And the district court lessened

any prejudice by giving a limiting instruction to the jury during trial and again

before its final deliberations to consider evidence of prior acts only for the limited

purpose of proving Moore’s intent, motive, or plan. See United States v. LaFond,

783 F.3d 1216, 1222 (11th Cir. 2015) (concluding that “the district court lessened

the prejudicial impact when it repeatedly instructed the jury to consider the

evidence for only the limited purpose of proving intent and motive”).

Because the evidence of Moore’s other acts was relevant and its probative

value outweighed any prejudice, the district court did not abuse its discretion by

denying Moore’s motion to exclude it.

Moore also contends that the district court abused its discretion when it

denied his motion for mistrial. He argues that Ingram intentionally stated that

Moore had “priors” and that this reference prejudiced the jury.

“The mere utterance of the word jail, prison, or arrest does not, without

regard to context or circumstances, constitute reversible error per se.” United

States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009). Ingram testified that

the government told her “[n]ot to bring up [Moore’s] priors.” She did not discuss

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those priors or mention his prior convictions again. Moore admitted at trial that

her answer was unelicited and that she immediately corrected her response to give

the elicited statement — that the government had told her “[t]o tell the truth.” A

solitary, unelicited, and vague reference to “priors” in the context of a multi-day

trial is insufficient to show that the district court abused its discretion by denying

Moore’s motion for a mistrial. See id. (“[W]here the comment is brief, unelicited,

and unresponsive, adding nothing to the government’s case, the denial of a mistrial

is proper.”).

C.

Moore next contends that the district court erred by imposing four

consecutive 300-month (25-year) sentences under § 924(c). That subsection states

that “any person who, during and in relation to any crime of violence . . . uses or

carries a firearm” and brandishes that firearm will “be sentenced to a term of

imprisonment of not less than 7 years.” 18 U.S.C. § 924(c)(1)(A)(ii). But “[i]n the

case of a second or subsequent conviction” the minimum sentence is 300 months

imprisonment and that sentence must run consecutively “with any other term of

imprisonment imposed on the person.” Id. § 924(c)(1)(C)(i), (D)(ii). Moore’s

total sentence for the five § 924(c) convictions was 1284 months (107 years). 1

1. 1 Moore does not challenge his first § 924(c) sentence of 84 months consecutive, nor does he challenge his concurrent 168-month carjacking sentences.

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Moore argues that the language of § 924(c) is ambiguous and for that reason,

the district court should have applied the rule of lenity in interpreting its terms and

vacated his four consecutive 300-month (25-year) sentences. Moore asserts that

because he used the same firearm in each of the five carjackings, he committed

only one § 924(c) offense. But the issue under § 924(c) is the number of times a

firearm is used during a crime of violence, not the number of firearms. See United

States v. Rawlings, 821 F.2d 1543, 1546 (11th Cir. 1987) (holding that the

language and legislative history of § 924(c)’s “second or subsequent conviction”

provision unambiguously shows “Congress’ desire to deter and punish firearm

use” even when the second or subsequent convictions were brought in the same

indictment) (emphasis added).2 Given the distinct nature of each carjacking and

Moore’s use of a firearm during each one, § 924(c) is not ambiguous as applied to

Moore, and the district court did not err by declining to vacate his four “second or

subsequent” § 924(c) convictions and sentences.

2.

2 Moore cites several cases from other circuits holding that a defendant cannot be convicted of multiple § 924(c) charges when there is only one firearm and one use but multiple predicate offenses. See, e.g., United States v. Rentz, 777 F.3d 1105, 1107, 1115 (10th Cir. 2015) (en banc) (one § 924(c) charge when defendant used a firearm to kill one victim and the same bullet hit and killed a second victim); United States v. Wilson, 160 F.3d 732, 735, 749–50 (D.C. Cir. 1998) (one § 924(c) charge when defendant used a firearm to kill one victim and the killing resulted in one conviction of first degree murder and one conviction of killing of a witness with intent to prevent him from testifying). But unlike the defendants in those cases, Moore committed several, distinct crimes through several, distinct acts. The five carjackings occurred at different times, in different locations, with different victims, and he brandished a gun during each carjacking. Those differences make the difference. 11 Case: 16-15519 Date Filed: 04/04/2018 Page: 12 of 13

Moore also argues that his consecutive firearms sentences are

unconstitutionally excessive under the Eighth Amendment. For Eighth

Amendment challenges, we have recognized a “narrow proportionality principle

that applies to noncapital sentences.” United States v. McGarity, 669 F.3d 1218,

1255 (11th Cir. 2012) (quotation marks omitted). To succeed on such a challenge,

the defendant must make a threshold showing that his sentence is grossly

disproportionate to the offense. Id. at 1256. If he succeeds, then we will “consider

the sentences imposed on others convicted in the same jurisdiction and the

sentences imposed for commission of the same crime in other jurisdictions.”

United States v. Raad, 406 F.3d 1322, 1324 (11th Cir. 2005) (quotation marks

omitted).

Moore has not shown that his sentence is “grossly disproportionate” to his

offenses. In noncapital cases “successful challenges to the proportionality of

particular sentences are exceedingly rare.” United States v. Farley, 607 F.3d 1294,

1343 (11th Cir. 2010) (quotation marks omitted). And “[i]n general, a sentence

within the limits imposed by statute is neither excessive nor cruel and unusual

under the Eighth Amendment.” United States v. Johnson, 451 F.3d 1239, 1243

(11th Cir. 2006) (quotation marks omitted). Moore’s sentence falls within the

sentencing range established and dictated by § 924(c), and it is not “grossly

disproportionate” to Moore’s crimes of using a firearm to threaten five different

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victims in an attempt to steal five different cars. The victim of each carjacking

testified that Moore pointed a gun at them; three testified that he ordered them to

get out of the car while doing so; and one testified that Moore shot the gun while

she was running away. See United States v. Yeary, 740 F.3d 569, 572–73 & n.3

(11th Cir. 2014) (summarily rejecting defendant’s argument that his sentences,

which included 960 months imprisonment on consecutive § 924(c) convictions,

violated the Eighth Amendment). Given the violent nature of the carjackings, the

district court did not err by declining to vacate Moore’s consecutive sentences

under § 924(c). His sentence was not grossly disproportionate to his crimes, nor

did it amount to cruel and unusual punishment.

AFFIRMED. 3

3 Although this case was originally on the oral argument calendar, it was removed under 11th Circuit Rule 34-3(f). 13