United States v. Moorer

• Court: Court of Appeals for the Third Circuit
• Decided: September 20, 2004
• Docket: 03-2476
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

9-20-2004

USA v. Moorer Precedential or Non-Precedential: Precedential

Docket No. 03-2476

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Recommended Citation "USA v. Moorer" (2004). 2004 Decisions. Paper 275. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/275

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL (Opinion Filed: September 20, 2004) ___________ UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 03-2476 ___________ Gavin P. Lentz, Esq. [ARGUED] David P. Heim, Esq. UNITED STATES OF AMERICA Bochetto & Lentz, P.C. Philadelphia, PA 19102

v. Counsel for Appellant

LAVERN MOORER, Edmond Falgowski Assistant United States Attorney Appellant District of Delaware ________________________ Elizabeth A. Olson [ARGUED] ON APPEAL FROM THE UNITED Appellate Section, Criminal Division STATES DISTRICT COURT FOR THE United States Department of Justice DISTRICT OF DELAWARE P.O. Box 899, Ben Franklin Station District Court Judge: The Hon. Sue L. Washington, DC 20044 Robinson (No. 01-CR-071) Counsel for Appellee ___________ _______________________ Argued: May 5, 2004 OPINION OF THE COURT BEFORE: SLOVITER and FUENTES, _______________________ Circuit Judges, and POLLAK, District Judge.*

FUENTES, Circuit Judge: In October 2001, Appellant Lavern * Moorer was charged with possession with Honorable Louis H. Pollak, Senior the intent to distribute cocaine and District Judge for the United States possession of a firearm. A year later, District Court for the Eastern District of Moorer pled guilty and was sentenced to a Pennsylvania, sitting by designation. term of 120 months in prison. Factored kilograms of cocaine, and possession of a into this sentence was the District Court’s .380-caliber semi-automatic pistol. decision to designate Moorer a “career Moorer pled guilty to the 2001 offender,” a designation arrived at by offenses of possession with intent to including Moorer’s 1990 conviction for distribute more than 500 grams of cocaine aggravated assault. The principal issue on and unlawful possession of a firearm in appeal is whether Moorer’s 1990 August 2002. Moorer’s Presentence conviction counts toward establishing his Investigation Report (“PSR”) initially career offender status, even though Moorer assigned him a criminal history category of was only 17 years old at the time. Because V. However, pursuant to U.S. Sentencing we find that Moorer’s 1990 conviction is a G u i d e l i n e s M a n u a l ( h e r e in a f t e r “prior felony conviction” for purposes of “U.S.S.G.”) § 4B1.1(a), the PSR dubbed career offender status, we affirm the Moorer a “career offender:” judgment of the District Court. A defendant is a career offender if I. Background (1) the defendant was at least The account of Moorer’s relevant eighteen years old at the time the criminal history begins in 1989, at which defendant committed the instant time he was serving a term of juvenile offense of conviction; (2) the confinement for possession with intent to instant offense of conviction is a deliver cocaine. In an attempt to escape felony that is either a crime of from his juvenile detention, Moorer violence or a controlled substance assaulted a corrections officer, and was offense; and (3) the defendant has convicted of this offense in New Jersey at least two prior felony convictions Superior Court in May 1990. The court of either a crime of violence or a sentenced Moorer to an indeterminate term controlled substance offense. of incarceration (not to exceed five years) at Yardville Youth Reception Center, a facility housing older juveniles and Specifically, the PSR counted as Moorer’s younger adults under the control of the “two prior felony convictions” 1) his 1990 New Jersey Department of Corrections. In conviction for aggravated assault 1994, while still on parole for his 1990 committed while escaping from a juvenile conviction, Moorer was convicted of detention facility; and 2) his 1994 possession with intent to deliver marijuana conviction for possession with intent to and cocaine, both controlled substances, deliver marijuana and cocaine within a within a school zone. Moorer was school zone. As such, Moorer’s criminal sentenced to five years in prison for that history category was increased to VI. Id. offense. Finally, in August 2001, Moorer at § 4B1.1(b). Using an offense level of was arrested and charged with procuring, 31 for a Category VI offender, the District with the intent to distribute, almost 6 Court calculated a sentence range of 188-

-2- 235 months. The Court then granted a an adult. Rather, M oorer contends that a downw ard departure for substantial conviction is a “prior felony conviction” assistance to the government, resulting in under § 4B1.1(a) only if both 1) the a final sentence of 120 months. Moorer conviction occurs in an adult proceeding timely appealed. The primary issue on (instead of in juvenile court), and 2) the appeal is whether Moorer’s 1990 conviction results in an adult sentence. conviction should have counted toward Moorer asserts that his sentence for the career offender status. 1990 conviction for aggravated assault was served concurrently with a prior sentence II. Jurisdiction that he was already serving pursuant to a The District Court had subject juvenile adjudication, and was therefore a matter jurisdiction pursuant to 18 U.S.C. § juvenile sentence. 3231. This Court has jurisdiction over the In our view, the Guidelines belie District Court’s sentencing decision Moorer’s premise that an adult conviction pursuant to 28 U.S.C. § 1291 and 18 must be accompanied by an adult sentence U.S.C. § 3742. to count toward career offender status. III. Standard of Review The Guidelines offer the following definition of “prior felony conviction” for We apply a plenary standard of purposes of §4B1.1(a): review over the D istrict Court’s i n t e rp r e t a tion of th e S entenc ing Guidelines. E.g., United States v. Lennon, 372 F.3d 535, 538 (3d Cir. 2004). IV. Discussion Moorer’s main argument on appeal is that his 1990 conviction should not count toward career offender status because he was sentenced as a juvenile rather than an adult.1 However, Moorer does not contest that he was convicted as

1 Moorer nominally presents a second argument based on Due Process, but this argument is merely a reiteration of his claim that he should not be considered a career offender because his 1990 conviction resulted in a juvenile sentence.

-3- “Prior felony conviction” means a prior for such an offense, and includes in the adult federal or state conviction for an career offender calculation federal and o f f e nse punishable by death o r state adult convictions for all offenses, imprisonment for a term exceeding one felonies or otherwise, which could be year, regardless of whether such offense is punished by death or a term of specifically designated as a felony and imprisonment of a year or more. Note 1 regardless of the actual sentence imposed. does not impose a separate sentence . . . A conviction for an offense committed requirement but places the entire focus on prior to age eighteen is an adult conviction the conviction itself, defining includable if it is classified as an adult conviction convictions by the extent to which they can under the laws of the jurisdiction in which be punished in the relevant jurisdiction. the defendant was convicted. Accordingly, the clear language of Note 1 refutes Moorer’s attempt to make his sentence classification the fulcrum of his U.S.S.G. § 4B1.2, cmt. n.1 (emphasis career offender determination. added) (hereinafter “Note 1”). Note 1 Ignoring Note 1, Moorer attempts clearly defines a “prior felony conviction” to import purportedly helpful language purely in terms of the kind of conviction from U.S.S.G. § 4A1.2. First, Moorer the defendant had, not the kind of points to U.S.S.G. § 4B1.2, cmt. n.3 sentence. Note 1 specifically explains that (hereinafter “Note 3”), which instructs: a prior felony conviction includes any state “The provisions of § 4A1.2 . . . are conviction that was counted as an adult applicable to the counting of convictions conviction by the laws of that state under § 4B1.1.” § 4A1.2(d)(1), in turn, “regardless of the actual sentence states that an offense committed prior to imposed.” Id. While it is true, as Moorer age eighteen counts toward one’s criminal asserts, that the phrase “sentence of history when “the defendant was convicted imprisonment” implies incarceration in an as an adult and received a sentence of adult facility2 , where or for how long the imprisonment exceeding one year and one defendant is actually sentenced is of no month.” Moorer, however, relies on § import. Instead, Note 1 focuses on what 4A1.2, cmt. n.7 (hereinafter “Note 7”), punishment could follow the conviction which states that “for offenses committed prior to age eighteen, only those that r e s u l te d i n a d u l t s en t e n c e s o f 2 In New Jersey, the term imprisonment exceeding one year and one “imprisonment” is not customarily used month, or resulted in imposition of an when referring to a juvenile disposition. adult or juvenile sentence or release from Juvenile custodial adjudications are confinement on that sentence within five described instead in terms of years of the defendant’s commencement of “incarceration.” See N.J. Stat. Ann. § the instant offense are counted.” Moorer 2A:4A-43, 44.

-4- seizes upon the phrase “adult sentences” convictions. and asks us to follow the Fourth Circuit’s Second, requiring adult sentencing rule from United States v. Mason, 284 in addition to an adult conviction would F.3d 555, 559 (4th Cir. 2002), that a add a significant new element to criminal conviction before age eighteen “counts history calculations that is unstated in the only if [the defendant] was both convicted actual text of the Guidelines. Carrillo, 991 and sentenced as an adult” (emphasis in F.2d at 594. The text of § 4A1.2(d)(1) original). encompasses all situations where “the We respectfully decline to follow defendant was convicted as an adult” and the Fourth Circuit’s view on this issue, as received a sentence of requisite length. If we agree with the Ninth Circuit that the the Sentencing Guidelines Commission phrase “adult sentences of imprisonment” had wished to require both an adult in Note 7 can naturally be read “to be a conviction and an adult sentence for shorthand reference to those defendants criminal history purposes, it could have who were ‘convicted as an adult and easily written § 4A1.2(d)(1) to reflect that received a sentence of imprisonment.’” wish: i.e, “If the defendant were convicted United States v. Carrillo, 991 F.2d 590, and sentenced as an adult to a term of 593-94 (9th Cir. 1993) (quoting U.S.S.G. imprisonment . . .” Based on these § 4A1.2(d)(1)); accord United States v. reasons, we hold that an adult conviction Pinion, 4 F.3d 941, 945 (11th Cir. 1993). qualifies as a “prior felony conviction” for We believe that Carrillo’s interpretation of purposes of career offender status whether Note 7 is preferable to Mason’s that conviction results in an “adult” or interpretation for two reasons. First, and “juvenile” sentence. Because Moorer does most importantly, a “sentenced as an not contest that his 1990 conviction was an adult” requirement in Note 7 would adult conviction, we find that it properly directly conflict with Note 1. As discussed counted toward his career offender status. above, Note 1 dictates that the career In closin g, w e note our offender inquiry examine only whether the disagreement with Moorer’s contention conv ictions in question are adult that his 1990 conviction resulted in a convictions, and not what kind of “juvenile sentence” because that sentence sentences resulted from those convictions. was served at Yardville Youth Reception In light of this dictate, it would make little Center, and because it was made to run sense for Note 3 to then import a concurrently with his remaining juvenile contradictory instruction from § 4A1.2, disposition. As the government points out, which is the result under the rule in New Jersey law makes it clear that once a Mason. In contrast, taking Carrillo’s juvenile is referred to an adult court, his approach to Note 7 would harmonize it entire case falls under the Code of with Note 1 by placing the focus of the Criminal Justice rather than the Code of career offender inquiry on the nature of the Juvenile Justice. N.J. Stat. Ann. § 2A:4A-

-5- 26; see also, e.g., State in Interest of A.B., V. Conclusion 520 A.2d 783, 787 n.3 (N.J. Super. Ct. After carefully considering the App. Div. 1987). When such a referral arguments discussed above, we affirm the occurs, the juvenile’s case is treated in the District Court’s sentencing judgment.4 adult court “in the same manner as if the case had been instituted in that court in the first instance.” N.J. Stat. Ann. § 2A:4A- 28. In this case, we have no reason to believe that Moorer’s sentence was anything other than an adult sentence. Indeed, we have found no authority under New Jersey law that would permit a judge to impose a juvenile “sentence” based on an adult conviction for a crime.3 This stands in marked contrast to the West Virginia law discussed in Mason, which explicitly allows for a defendant under eighteen to be sentenced under juvenile delinquency law even after being convicted under adult jurisdiction. 284 F.3d at 561 (citing State v. Highland, 327 S.E.2d 703, 706 (W. Va. 1985)). The fact that Moorer was remanded to Yardville to serve out the sentence for his 1990 conv iction actually undermines his argument, because Yardville is a facility that houses adults and is under the control of the Department of Corrections rather than the Department of Human Services . In short, Moorer’s “juvenile sentence” argument is unavailing both on legal 4 Moorer submitted a pro se brief principles and on the facts of this arguing that under Blakely v. particular case. Washington, 124 S.Ct. 2531 (2004), a jury should have determined whether he was a career offender. We reject this 3 Under the New Jersey Code of argument, as Blakely governed only Juvenile Justice, juveniles who are factual determinations, and Moorer’s adjudicated delinquent are not sentenced status as a career offender was purely a but rather are subject to a “dispositional matter of law under the Sentencing hearing.” N.J. Stat. Ann. § 2A:4A-41. Guidelines.

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