United States v. Moore

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 21, 2021
• Docket: 21-5048
• Status: Unpublished

Opinion

Appellate Case: 21-5048 Document: 010110622003 Date Filed: 12/21/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 21, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-5048 (D.C. No. 4:98-CR-00044-GKF-1) MALCOLM EUGENE MOORE, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________

Malcolm Moore, proceeding pro se,1 appeals the district court’s order granting

in part his motion for a reduced sentence under 18 U.S.C. § 3582(c)(1)(A)(i). For the

reasons explained below, we affirm.

In 1998, a jury convicted Moore of three counts of bank robbery with a

dangerous weapon, in violation of 18 U.S.C. § 2113(a) and (d), and three counts of

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We construe Moore’s pro se brief liberally, “but we do not act as his advocate.” United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Appellate Case: 21-5048 Document: 010110622003 Date Filed: 12/21/2021 Page: 2

using or carrying a firearm during and in relation to a crime of violence, in violation

of 18 U.S.C. § 924(c). The district court sentenced him to 690 months in prison: three

concurrent 150-month terms for the three bank-robbery counts, a consecutive 60-

month term for the first § 924(c) count, and two additional consecutive 240-month

terms for the second and third § 924(c) counts.

In February 2021, Moore filed a motion for a reduced sentence under

§ 3582(c)(1)(A)(i), which provides in relevant part that a district court “may reduce

the term of imprisonment” if a defendant can show extraordinary and compelling

reasons. The statute further directs the district court to consider the sentencing factors

in 18 U.S.C § 3553(a) when deciding whether to grant such relief.2 As extraordinary

and compelling reasons, Moore primarily noted his age, health conditions, progress

toward rehabilitation, and—most critically—the extreme length of the two

consecutive 240-month sentences for his second and third § 924(c) convictions when

compared to the sentences he would face today for the same convictions. That is, at

the time of Moore’s conviction, § 924(c)(1)(C) mandated lengthy consecutive

sentences for subsequent § 924(c) convictions, “even if those convictions occurred at

the same time as a defendant’s first conviction under the statute.” United States v.

Maumau, 993 F.3d 821, 824 (10th Cir. 2021). But the First Step Act of 2018, Pub. L.

2 Section 3582(c)(1)(A) also provides that any sentence reduction be “consistent with applicable policy statements issued by the Sentencing Commission.” But as Moore argued below and as the district court agreed, there are currently no applicable policy statements for defendant-filed motions for a reduced sentence. See United States v. McGee, 992 F.3d 1035, 1048–50 (10th Cir. 2021). 2 Appellate Case: 21-5048 Document: 010110622003 Date Filed: 12/21/2021 Page: 3

115-391, 132 Stat. 5194, amended § 924(c) to mandate a lengthy consecutive

sentence “for a second or subsequent conviction of § 924(c) . . . only if the

defendant’s first § 924(c) conviction is final at the time of the second or subsequent

§ 924(c) conviction.” Maumau, 993 F.3d at 824 (emphasis added). Thus, Moore

argued, if he were sentenced today, he would receive only consecutive 60-month

sentences for his second and third § 924(c) convictions. See § 924(c)(1)(A)(i) (setting

generally applicable 60-month mandatory minimum).

Additionally, Moore contended that relief was warranted under the sentencing

factors in § 3553(a), citing again his age and rehabilitation efforts. Overall, Moore

asked the district court to reduce the consecutive sentences for his second and third

§ 924(c) convictions from 240 months to 60 months, for “a total sentence of 330

months, leaving approximately four years left to serve.” R. vol. 1, 141.

The district court granted Moore’s motion in part. It concluded that Moore’s

age and health conditions did not constitute extraordinary and compelling

circumstances because although Moore is approximately 50 years old and has various

medical diagnoses, he is currently in “stable medical condition.” Id. at 145. But the

district court agreed that the “gross disparity between [Moore’s] sentence and the

sentence that a person would receive today for the same conduct,” as well as the

sentencing court’s lack of discretion on the § 924(c) portion of Moore’s sentence,

constituted extraordinary and compelling reasons warranting a sentence reduction.3

3 The district court, however, questioned Moore’s underlying assertion that, if sentenced today, he would face 60-month sentences for both his second and third 3 Appellate Case: 21-5048 Document: 010110622003 Date Filed: 12/21/2021 Page: 4

Id. at 145–46; see also Maumau, 993 F.3d at 837 (affirming § 3582(c)(1)(A)(i)

sentence reduction that was based in part on “‘incredible’ length of [defendant’s]

stacked mandatory sentences under § 924(c)[,] the First Step Act’s elimination of

sentence-stacking under § 924(c)[,] and the fact that [defendant], ‘if sentenced today,

. . . would not be subject to such a long term of imprisonment’” (omission in original)

(quoting App. 191)).

The district court then turned to the § 3553(a) factors, noting Moore’s

extensive criminal history, serious bank-robbery and firearm convictions, and

significant prison disciplinary record. Moreover, the district court noted that Moore

committed the bank robberies just six months after being released from state custody.

It concluded that “[a]lthough a reduction in sentence is justified, the serious nature of

the instant crimes and the history and characteristics of the defendant, to include his

poor institutional adjustment, demand substantial punishment.” R. vol. 1, 146–47.

The district court accordingly declined to grant the entire reduction that Moore

sought, from 690 months to 330 months. Instead, it reduced his sentence to 474

months: the original three 150-month concurrent sentences for bank robbery, the

original consecutive 60-month sentence for the first § 924(c) conviction, and reduced

consecutive sentences for the second and third § 924(c) convictions of 144 and 120

§ 924(c) convictions; on the contrary, it noted, one of those convictions likely carried a mandatory minimum sentence of 84 months because Moore brandished a firearm. Compare § 924(c)(1)(A)(i) (providing general 60-month mandatory minimum), with § 924(c)(1)(A)(ii) (providing 84-month mandatory minimum if firearm was brandished). 4 Appellate Case: 21-5048 Document: 010110622003 Date Filed: 12/21/2021 Page: 5

months. As a result of this reduction, we judicially notice that, according to the

Bureau of Prison’s publicly available records, Moore’s expected release date is now

January 5, 2033. See Fed. Bureau of Prisons, Inmate Locator,

https://www.bop.gov/inmateloc// (under “Find by Name,” enter “Malcolm Eugene

Moore”) (last visited Dec. 17, 2021); United States v. Muskett, 970 F.3d 1233, 1237

n.4 (10th Cir. 2020) (taking judicial notice of defendant’s release date), cert. denied

141 S. Ct. 1710 (2021).

Moore now appeals. We review the district court’s decision on a sentence-

reduction motion for abuse of discretion. United States v. Mannie, 971 F.3d 1145,

1155 (10th Cir. 2020).

Moore argues that the district court abused its discretion in concluding that the

§ 3553(a) factors did not warrant the full reduction he sought. Specifically, Moore

contends that the district court “failed to adequately consider . . . his post[]sentence

rehabilitation efforts” and erred in focusing on Moore’s disciplinary infractions

rather than on the fact that he has not had any recent infractions and has completed a

variety of Bureau of Prisons programming. Aplt. Br. 2. In support, he argues that

although he did not arrive in prison as a model inmate, “[r]eal rehabilitation takes

time.” Id. at 4. And he contends that his more recent prison record demonstrates such

rehabilitation.

But reweighing the district court’s balancing of the § 3553(a) factors “is

beyond the ambit of our review.” United States v. Lawless, 979 F.3d 849, 856 (10th

Cir. 2020). Indeed, “[b]ecause the weighing of the § 3553(a) factors is committed to

5 Appellate Case: 21-5048 Document: 010110622003 Date Filed: 12/21/2021 Page: 6

the discretion of the district court, we cannot reverse ‘unless we have a definite and

firm conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.’” United States v. Hald, 8 F.4th

932, 949–50 (10th Cir. 2021) (quoting United States v. Chavez-Meza, 854 F.3d 655,

659 (10th Cir. 2017), aff’d, 138 S. Ct. 1959 (2018)). And here, we have no such

conviction. We see no error of judgment in the district court’s conclusion that

granting a greater reduction would result in a sentence that did not sufficiently

“reflect the seriousness of the offenses, promote respect for the law, protect the

public from further crimes, and afford adequate deterrence.” R. vol. 1, 147. Nor did

the district court abuse its discretion in emphasizing Moore’s criminal history, the

circumstances of his offenses, and Moore’s conduct during the first stretch of his

incarceration over the evidence of Moore’s more recent rehabilitation efforts.

Because the district court did not abuse its discretion in granting less of a

sentence reduction than Moore requested, we affirm.4

Entered for the Court

Nancy L. Moritz Circuit Judge

4 Moore devotes a substantial portion of his brief to the argument that a district court must consider the § 3553(a) factors when deciding whether to grant a sentence reduction under a different subsection of the sentence-reduction statute, § 3582(c)(1)(B). Whatever the merits of that argument, it has no bearing on this case, which involves a sentence reduction under § 3582(c)(1)(A), a subsection that specifically directs the district court to consider the § 3553(a) factors, as the district court did here. 6