F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 29 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-3328
v.
(D.C. No. 95-CR-20027-KHV)
(D. Kan.)
ERNEST MOORE,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO and O’BRIEN, Circuit Judges.
Counsel for Ernest Moore filed this appeal pursuant to Anders v.
California, 386 U.S. 738 (1967), noting that there were no appealable issues of
fact or law so Moore’s prayer for relief was frivolous. Accordingly, counsel has
moved to withdraw. Moore has requested the appointment of new counsel. The
government has waived its response on appeal and has declined to address the
motion to withdraw and Moore’s motion for appointment of new counsel.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This Order and
Judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
The fact that Moore’s counsel filed an Anders brief puts a special duty on
us fully to examine the proceedings below, and we must carefully review the
evidence presented. Anders, 386 U.S. at 744. We find Moore’s claims frivolous
and dismiss the appeal. We grant counsel’s motion to withdraw and we deny
Moore’s request for new counsel as moot.
On appeal, Moore makes two arguments.
First, he argues that the district court inappropriately departed from a
policy statement in the Sentencing Guidelines when resentencing him at a
revocation hearing in October 2001. However, Moore does not contest that he
committed the violations of his supervised release, nor does he assert that the
sentence imposed by the district court was greater than the maximum permitted
under the applicable statute. See generally 18 U.S.C.A. 3583(e)(3). Moreover,
ranges in policy statements are merely advisory, rather than mandatory. United
States v. Hurst, 78 F.3d 482, 483 (10th Cir. 1996). We review the record of the
district court’s actions to determine whether they were reasoned and reasonable.
Id.
Second, Moore argues that he should have had the right at his October 2001
revocation hearing to call witnesses on his own behalf and to cross-examine the
witness who testified against him. This argument has no merit, however, because
the record shows that, when represented by counsel, Moore waived his right to
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call witnesses by never requesting to do so at the hearing, and that he was able to
cross-examine the single witness who testified against him. (ROA Vol. II at 14 -
18); Hawkins v. Hannigan, 185 F.3d 1146, 1154-55 & n. 5 (10th Cir. 1999)
(holding that a defendant waives his right under the Confrontation Clause when
neither counsel nor defendant objects during proceedings). His cross-examination
argument is therefore not a basis for objection and we need not treat it further.
Procedural Background
Some background is necessary to evaluate the evidence and to provide
context for Moore’s first argument, especially given that we have a special duty to
weigh it under Anders.
In June 1995, Moore pled guilty to federal gun and drug crimes. He was
sentenced to 60 months of imprisonment and five years of supervised release.
After serving the prison term, Moore was freed in January 2001 to continue on
supervised release. Shortly thereafter, Moore was arrested for twice assaulting
his wife, which constituted a major violation of his supervised release.
At a first revocation hearing in June 2001, the district court warned Moore
that he could not continue to violate the conditions of his supervised release or he
would be reincarcerated. The district court was persuaded by an appeal for
clemency not to revoke Moore’s supervised release entirely, but added additional
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conditions to its terms. Moore had to undergo anger management counseling, to
submit to six months of electronic monitoring, and to have no contact of any kind
with his wife Alice.
Nonetheless, Moore violated the terms of the supervised release again
almost immediately by repeatedly harassing Alice. At a second hearing in
October 2001, the district court finally revoked his supervised release. It
sentenced him to 36 months for the drug crimes and 24 months for the gun crime,
to be served concurrently. This was the maximum left under the statute, not the
suggested range for revocation of 6 to 12 months given in the policy statements.
Evidence Presented at the October 2001 Hearing
The district court revoked Moore’s supervised release at the October 2001
hearing based on the evidence provided by Alice Moore that he had repeatedly
contacted her and threatened her. Alice and Moore’s relationship was violent and
complicated. At times they were on good terms, but Moore had been arrested
twice while on supervised release for assaulting, choking, and hitting Alice.
Before the second of these arrests, he told her “the only way you’ll leave me is if
one of us leaves the earth. I’ll see you in a casket.” (ROA Tr. at 19.)
There were numerous examples in the record of the October 2001 hearing
during which Moore was documented to have harassed Alice and then lied to his
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probation officer about his actions. Two incidents in particular, though, highlight
the pattern of Moore’s behavior in violating the terms of his supervised release.
On August 11, 2001, Moore was suddenly out of electronic monitoring
range without permission. He had come looking for Alice that morning and found
her at a friend’s house. Alice’s written statement recorded what happened that
day:
On August 11, he was at my house at 5am mad because I was not
there. He called my cell phone in an outrage. At 6:30 in the
morning[,] he found where I was and he came over to my friend
Diane’s banging on the door. When she answered, he told her he
wanted to talk to me, and she informed him that I didn’t want to talk
to him. He went crazy, calling my cell phone like a madman, leaving
very intimidating and sometimes messages that would really have me
afraid.
He must have went to work because he started calling me around 7 to
8am from his work phone. He must have left for lunch because at
12:30 he was beating on the door at my girlfriend’s house . . . Then
he came into the liquor store where we were, and I told him that I
had nothing to say to him. He then pulled off after me and chased
me down the street . . . trying to make me pull over. When I
wouldn’t he tried to run me off the road.
(ROA Tr. at 20 - 21.)
During an investigation of the August 11 incident, Moore disappeared again
from electronic monitoring range. The probation officer immediately called
Alice, and she confirmed that Moore had made contact with her. According to the
probation officer’s testimony,
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She was in a panic when I talked with her, She was very upset, very
scared. She was rounding her children up, getting some belongings,
she was loading things into the car while she was talking to me. She
did not know at first where she was going to go. We talked about
that. I suggested that perhaps she go to the nearest police station if
she had no other place to go.
(ROA Tr. at 13 - 14.)
Alice had promised to testify against Moore at the revocation hearing, but
disappeared shortly before it started. Her written statements were entered in
evidence under the hearsay rules applicable to these hearings. (Id. at 4); United
States v. Waters, 158 F.3d 933 (6th Cir. 1998) (holding permissible consideration
of reliable hearsay evidence in final hearings regarding revocation of supervised
release).
Proceedings at the October 2001 Hearing
At the October 2001 revocation hearing, when confronted with this
evidence, Moore insinuated that Alice had invented the stories to get him into
trouble. Id. at 26. But the judge pressed Moore on details, asking for example
whether Moore had called Alice and whether he had gone over to her house. Id.
at 27. Under oath, Moore had to admit that these facts were true. Id.
The judge then expressed her disappointment with Moore’s behavior. Id.
Although the prosecution had identified the suggested range in the policy
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statements as 6 to 12 months, the judge explained why she would depart from it.
Id. She noted that this was Moore’s second revocation hearing, and that he had
specifically failed to abide by lesser measures of control such as electronic
monitoring. Id.
After a summation of the evidence, the district court explained:
I had hoped that we wouldn’t get to this stage because I thought we
would be able to work with you, Mr. Moore, and that by stepping up
the supervision and giving you a second chance, you would be able to
show us that you were amenable to supervision. . . . [But] at this
point, I’m absolutely convinced that you are not a suitable candidate
for supervised release, that you do not respect the court’s authority or
conditions or the instructions of the probation office, and that you’re
not going to avoid contact with Alice Moore or comply with the
conditions of your electronic monitoring.
Id. at 28.
The judge finally sentenced Moore to the statutory maximum for his
crimes: 36 months for the drug crimes and 24 months for the gun crime to run
concurrently. Id.
Moore’s Argument on Appeal
Moore now contests his sentence and maintains that the district court
should have been bound by the 6 to 12 month range in the policy statement at
U.S.S.G. § 7B1.4.
The ranges in policy statements are advisory rather than mandatory, and we
review cases in which district courts depart from these ranges to determine merely
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whether their actions were reasoned and reasonable. United States v. Hurst, 78
F.3d 482, 483 (10th Cir. 1996). A district court must be aware of a policy
statement, but it may easily depart from the range the statement suggests. United
States v. Lee, 957 F.2d 770, 775 (10th Cir. 1992).
We decided a similar case to Moore’s in United States v. Lee, 957 F.2d 770
(10th Cir. 1992). Lee had been convicted of unlawful possession of a firearm
and, as a condition of supervised release, was ordered not to use drugs. He
repeatedly, however, tested positive for methamphetamine. We upheld that
district court’s departure from the range in the policy statements when it
recognized what the range was, but departed from it after explaining that the trust
of the court had been violated by Lee’s repeated abuse of drugs. Id. at 772.
In Moore’s case, the record also demonstrates that the district court’s
departure from the policy statement meets our low standard of review. Hurst, 78
F.3d at 483; Anders, 386 U.S. at 744. The district court confirmed on the record
that it recognized what the policy statement range was for Moore’s violations.
(ROA Tr. at 22 - 23.) The judge then identified what the statutory maximum was
and conferred with both sides about whether she should impose that range. Id. at
23. She specifically gave Moore’s attorney an opportunity to argue for a lesser
sentence, and requested a response from Moore himself in which he was later
forced to admit that he gave inconsistent answers to the court. Id. at 25.
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Moore expressly disregarded the requirements of his supervised release,
violating those conditions numerous times despite warnings from the court and his
probation officer. He showed no genuine remorse for his actions at the hearing
and admitted under questioning that he had lied to the court. As the district court
explained, it was these elements of Moore’s own behavior that resulted in its
departure from the range in the policy statement.
Conclusion
Accordingly, we conclude that the district court’s actions in departing from
the range in the policy statements were reasoned and reasonable given its
explanation of its actions and Moore’s continuing disregard for the conditions of
his supervised release. We earlier found that Moore’s argument regarding cross-
examination was without merit. We therefore DISMISS Moore’s appeal as
frivolous under Anders and GRANT counsel’s motion to withdraw. Anders, 386
U.S. at 744. Moore’s request for the appointment of new counsel is DENIED as
moot.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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