FILED
United States Court of Appeals
Tenth Circuit
February 22, 2010
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 09-6087
(D.C. No. CR-08-270-HE-1)
v.
(Western District of Oklahoma)
MOISES DANIEL MORENO,
Defendant - Appellant,
ORDER AND JUDGMENT*
Before BRISCOE, HOLLOWAY and HOLMES, Circuit Judges.
Defendant-appellant Moises Moreno was indicted on a single count of possession
of a firearm and ammunition after a former felony conviction, in violation of 18 U.S.C. §
922(g)(1). Mr. Moreno entered a guilty plea to the charge without the benefit of plea
agreement. He was sentenced to a term of 60 months’ imprisonment to be followed by
three years of supervised release; he was also ordered to pay a special assessment of
$100.00.
Mr. Moreno now appeals from the sentence imposed by the district court. This
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P.32.1 and 10th Cir. R.32.1.
court has jurisdiction over this appeal by the terms of 28 U.S.C. § 1291 and 18 U.S.C.
§ 3731.
I
Mr. Moreno’s arrest on the charge of conviction came about as a result of an
investigation by the Oklahoma City Police of an armed robbery at a bar on the city’s
south side. Witnesses at the bar described four robbers, three of whom were said to be
Hispanic men. The four suspects had been seen leaving the robbery scene in a white
Lincoln. Officers learned that the same car had been stopped earlier in the day, and that
Mr. Moreno had been one of the occupants of the car at that time. Later that evening, the
same car was stopped again after a report that several Hispanic men had caused some
kind of disturbance at a shopping mall. Mr. Moreno was in the car at that time and was
arrested for public intoxication.
Officers learned that Mr. Moreno had been living with a relative, and they went to
that residence in their investigation of the robbery at the bar. The relative granted
permission for the officers to search the room in which Mr. Moreno had been staying, and
the officers found a pistol and several types of ammunition. Mr. Moreno was first
charged in state court, but that charge was dropped after he had been indicted by a federal
grand jury on the present charge.
II
Mr. Moreno pleaded guilty. The probation office prepared a Presentence
Investigation Report (PSR), and the parties were given the opportunity to comment and
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object. The government had no objections; Defendant’s objections will be noted in the
discussion below. Those objections, however, were not directed at the basic
determinations under the advisory guidelines of the criminal history category, the offense
level, and the resulting recommended guidelines range of punishment, which was 30 to
37 months.
Mr. Moreno’s objections1 were directed to two paragraphs of the PSR (36 and 38)
that described two specific instances of “Other Criminal Conduct,” which were cited by
the PSR as “Factors That May Warrant a Departure” (paragraph 72). Defendant also
objected to paragraph 72 and to paragraph 73, which described “Factors That May
Warrant a Sentence Outside of the Advisory Guidelines System.” Both parties sought a
variance from the advisory guideline range in statements filed before the sentencing
hearing.
At the sentencing hearing, the prosecution put on additional evidence about four
arrests mentioned in the PSR and relied on in the government’s Sentencing Memorandum
and Motion for an Upward Variance. These arrests had not resulted in convictions and so
had not been included in the criminal history section of the PSR. Mr. Moreno’s primary
contention on appeal is that this evidence was not sufficiently trustworthy.
1
At oral argument, counsel for Mr. Moreno noted that the probation office had
deviated from past practice in preparation of the PSR. His objections, instead of being
placed in a separate section of the PSR, had been noted as parentheticals after the
description of the incidents of other criminal conduct. From our review of the record and
from the arguments of counsel, we observe that the district court seems to have been
alerted to Defendant’s positions in spite of the decision not to devote a separate section of
the PSR to them.
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The prosecution’s presentation at the sentencing hearing consisted of using a
single police officer to identify exhibits, which were some photographs of Mr. Moreno
with known gang members, police reports concerning the four arrests, and a transcript of
a preliminary hearing in state court on one of the charges. Some of the photographs
showed Mr. Moreno, who admitted being a member of a gang called the Juaritos, with
individuals known to have leadership roles in the gang and criminal histories including
felony convictions.
We will briefly summarize the police reports that were listed in the government’s
motion for upward variance and later introduced in evidence by the government, over
Defendant’s objections, at the sentencing hearing. The dates listed are the dates of the
incidents.
May 6, 2008. A police officer reported that he had been sitting in his patrol car
when he noticed three young men in the alley behind a closed business. The three went
behind a garbage dumpster and then emerged, arousing the officer’s suspicion. The
officer looked behind the dumpster and found a pistol. After a second officer had
responded to his call for assistance, the three men were arrested. Defendant was one of
the three. All three were known gang members, and one of them had a recent felony
conviction for assault and battery on a police officer. Each of the three denied possession
of the pistol, which was later determined to have been stolen. No charges were filed,
according to the PSR, because the state had no evidence as to which of the three arrested
men had been in possession of the pistol.
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October 8, 2006. Police investigated a drive-by shooting. Several shots had been
fired at a house where a member of a rival gang lived with his parents and other relatives.
Two witnesses identified Defendant as one of the shooters. At the sentencing hearing in
the present, federal case, the government also introduced in evidence the transcript of a
preliminary hearing in state court; Defendant and two others were ordered held for trial
on charges of assault with a deadly weapon at the conclusion of that hearing, based on a
finding of probable cause by the state judge that they had participated in the drive-by
shooting described. The PSR notes that the case was dismissed more than a year after it
had been filed “pending further investigation.” The PSR includes this parenthetical note
regarding this incident: “The defendant, through counsel, has indicated that this was also
a seriously contested charge as illustrated by the date of the alleged offense (October 8,
2006) and the dismissal on March 31, 2008.”
August 15, 2004. Two officers were patrolling a neighborhood where there had
been gang activity and were in particular watching the residence of a known Juaritos gang
member, a house where a drive-by shooting had been reported a few days earlier. Shortly
before midnight, the officers drove by that residence and noticed a man standing alone, in
the dark, beside a parked car. The officer thought that the man, who turned out to be Mr.
Moreno, was acting as a look-out. The man seemed to notice the officers because they
saw him pull something out of the waistband of his pants and hand it to someone inside
the parked car. The officers approached, frisked Defendant and found a pistol magazine
in his pocket. The woman who was in the parked car told the officers that Mr. Moreno
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had given her the pistol when he saw the officers, and the pistol was found under the
driver’s seat of the car. Mr. Moreno was charged with transporting a loaded firearm in a
vehicle. The case was dismissed at the request of the state, according to the PSR, which
also says that the reason for the request to dismiss was that the officers had not seen Mr.
Moreno with the gun, nor had they seen him in the vehicle.
November 19, 2003. Police investigated a reported incident of shots fired from
one car at another. Members of a rival gang were in a white car that had stopped for a
traffic light. A green Ford Explorer pulled up behind them and two men got out. One of
the two men, whom they recognized as a Juaritos member, threw a brick at the rear
window of the white car while the second man hit one of the side windows with a
hammer. The white car drove away and the Explorer followed it. Occupants of the white
car reported that the first Juaritos member fired a pistol at them, while Mr. Moreno fired a
rifle from the Explorer. Two occupants of the white car were hit and were later treated at
a local hospital. Mr. Moreno was charged with two counts of shooting with intent to kill,
inter alia. The case was later dismissed at the request of the state due to uncooperative
witnesses, according to the PSR. The PSR also includes, in a parenthetical note, the
defense position:
[T]his was a seriously contested charge. Mr. Moreno had absolutely
nothing to do with the offense. The shooting occurred while Mr. Moreno
was at work. Mr. Moreno’s attorney [apparently the reference is to the
attorney in the state case that was filed in 2004] obtained records from Mr.
Moreno’s employer demonstrating Mr. Moreno was at work. Surveillance
videos obtained from the employer showed Mr. Moreno was at work when
the shooting occurred.
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At the conclusion of the sentencing hearing, the district judge indicated that he was
persuaded by the government’s evidence that an upward variance from the advisory
guidelines range would be appropriate in view of the statutory goals of sentencing set out
in 18 U.S.C. § 3553(a). The judge stated:
Well, in this case, as in every case, I start by considering the
recommendations of the Federal Sentencing guidelines. . . . .
The presentence report does suggest the possibility that an upward
variance here may be appropriate on the basis that the criminal history does
not sufficiently reflect the seriousness of the criminal conduct involved, and
I believe that based on the evidence that’s been offered and the information
in the report, that that is an appropriate suggestion. It does appear to me
that the nature and extent of the criminal conduct by Mr. Moreno is
sufficiently significant that it warrants a sentence in excess of the statutory
guidelines.
. . . . [I]t does seem to me that the evidence that I’ve heard with
respect to the . . . involvement in drive-by shootings and the gang-related
activity that is not disputed here does inform in a substantial way the
Court’s judgment about how serious to treat the matter of the possession of
a firearm, which is, of course . . . the underlying offense . . . .
The record reflects that the defendant has been involved in a
significant amount of criminal activity. . . . . [T]he more significant
criminal history, of course, relates to drugs and guns and the testimony with
respect to the drive-by shootings and so on that is considerably more serious
than what we often see in these sorts of cases.
So it does seem to me that the nature of the defendant’s criminal
history and his activities require a sentence in excess of the guideline range.
As noted, the judge went on to impose a sentence of sixty months’ imprisonment, going
above the advisory guideline range of 30 to 37 months.
III
On appeal, Mr. Moreno contends that his sentence is both procedurally and
substantively unreasonable. As to substantive unreasonableness, however, counsel has
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offered only a bare contention, without supporting argument or authority. Thus, that issue
has not been properly raised and need not be considered. It must not be inferred,
however, that Mr. Moreno has been prejudiced by this inadequate presentation. The
appellate argument is focused on procedural reasonableness and, more specifically, is an
attack on the reliability of the evidence on which the district court relied in reaching the
sentence. Given the gravity of the conduct reflected in the evidence presented at the
sentencing hearing and the deferential abuse of discretion standard of review that applies
to the substantive reasonableness of a sentence,2 Mr. Moreno would have an
extraordinarily heavy burden to convince this court that the sentence was substantively
unreasonable unless he were to prevail on his procedural attack on the reliability of the
evidence. And, if he were to succeed in that attack, that alone would require us to remand
the matter for re-sentencing.
Mr. Moreno does assert that his sentence is procedurally unreasonable.
“Procedural reasonableness involves using the proper method to calculate the sentence.”
United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007).
Mr. Moreno does not appear to argue that the district court failed to follow Fed. R.
Crim. P. 32(i)(3)(B), which requires the sentencing judge to make a finding as to each
controverted matter in the PSR or else to state that the controverted material will not be
considered in the sentencing decision. See, e.g., United States v. Pedraza, 27 F.3d 1515,
1530 (10th Cir. 1994). This case does not present a textbook example of either plainly
2
See United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008).
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stated objections by the defense (which as noted supra may be the result of the procedure
employed by the probation office in preparation of the PSR) or clearly stated findings by
the district court.
Nevertheless, it clearly appears that the district court understood that Defendant
had objected to the two noted paragraphs of the PSR, as reflected in the colloquy at the
sentencing hearing. Further, Defendant seems to treat the sentencing judge’s rather
general comments (quoted supra) as if they were specific findings that the government
had carried its burden of proof on the contested matters.3 We review such underlying
findings of facts by the sentencing court only for clear error. See United States v. Cook,
550 F.3d 1292, 1295 (10th Cir. 2008). As Mr. Moreno recognizes, the district court may
rely on hearsay evidence, as the court did in this case, so long as the evidence manifests
minimal indicia of reliability. See id. at 1296 & n.4.
Mr. Moreno contends that the evidence used to show that he was involved in the
incidents reflected in the police reports was not sufficiently reliable. He also suggests
that the findings of the district court that he participated in these incidents are clearly
erroneous.
We have previously upheld a sentencing enhancement based on a finding of
3
As shown in the comments of the district judge quoted supra, the judge referred
more than once to drive-by shootings in the plural. Thus, defense counsel’s
understanding of the court’s comments as findings that he had participated in the events
underlying those arrests appears soundly based. And given the likely impact of those
findings on the judge’s ultimate decision, it does seem that remand for more clearly
articulated findings would, in this case, be a hollow formality.
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participation in conduct for which the defendant had not been convicted when the
evidence to support the finding included a police report. Cook, 550 F.3d 1292. In that
case, the evidence also included an affidavit of the officer who had prepared the police
report, but that affidavit reflected no personal knowledge of the conduct at issue but was,
it appears, only another compilation of the hearsay statements included in the report.
We found the evidence insufficient to support a finding made in the sentencing
phase of a criminal matter in United States v. Fennell, 65 F.3d 812 (10th Cir. 1995). In
that case, the sentencing judge had found, based on a preponderance of the evidence, that
Mr. Fennell had committed the crime of felonious assault by firing a gun at his girlfriend.
The only evidence to support that finding was the probation officer’s account of a
telephone interview with the girlfriend. We noted, however, that the circumstances of
this interview left the probation officer with no opportunity to observe the girlfriend’s
demeanor or to form any opinion as to her veracity. Our opinion made reference to some
unspecified evidence (perhaps a police report on the incident in question) that suggested
that the gun had been fired during an altercation between Mr. Fennell and his girlfriend,
but that evidence did not support a finding of felonious assault, we said, particularly in
light of the fact that Mr. Fennell had initially been charged in state court with
misdemeanor assault following the incident. The record, we said, tended to “undermine,
rather than buttress, confidence in the girlfriend’s hearsay statement.” 65 F.3d at 813.
By contrast, in Cook the officers had personally interviewed witnesses and found
corroborating accounts of the incident in question. See Cook, 550 F.3d at 1296. This
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case is closer to Cook than to Fennell.
For example, in the two arrests of Mr. Moreno that did not involve discharge of a
firearm, he was apprehended at the scene and a firearm was found. Although the
evidence in those cases was deemed by state authorities to be too weak to pursue, at a
minimum the evidence of these two incidents showed that Mr. Moreno was associating
with gang members who possessed firearms.
As to the two arrests that involved charges of assault by use of a firearm, in the
latter of the two incidents the case went to preliminary hearing, and the transcript of that
hearing was introduced in evidence at the sentencing hearing. The sole witness at the
hearing was a rival gang member who testified that he had been walking on the street
when a car pulled up, and at least two men began shooting at him. The witness testified
that he saw Mr. Moreno from a distance of a few feet and recognized him because he had
been previously acquainted with him. After the witness had been cross-examined by
three attorneys representing the defendants, the state judge made a probable cause
finding.
We hold that this evidence met the low standard applicable at the sentencing
phase. Accordingly, the district court’s finding was not clearly erroneous.
As to the remaining incident, that of November 19, 2003, the police reports
admitted in evidence at the sentencing hearing reflected, inter alia, that one police officer
had at least two interviews with one of the victims of that shooting. This officer later
submitted a sworn affidavit in support of an application for a warrant in which the officer
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stated that the victim had identified Mr. Moreno as the man who had fired a rifle at his
vehicle.
As noted, Mr. Moreno did not submit any evidence at the sentencing hearing. The
record thus reveals no support for the assertion that the attorney who had represented Mr.
Moreno on this charge in state court had a surveillance video that would have shown that
Mr. Moreno had been at work at the time of that incident. Nor does the record reveal
whether efforts were made to locate the videotape or to contact the lawyer from the state
court case.4 The source for this assertion is unidentified.
We find that the sworn affidavit of the officer relating the victim’s identification of
Mr. Moreno as one of his assailants meets the standard of minimum indicia of reliability.
It follows that there was no error in relying on the evidence and that the finding based on
that evidence was not clearly erroneous.
In sum, we find as to each of the four arrests that the evidence proffered by the
government met the low standard of minimal indicia of reliability and that the district
court’s findings based on that evidence were not clearly erroneous.
4
Of course, it would not be surprising if the video, assuming that it existed, had not
been saved, since the state charges had been dismissed more than four years before Mr.
Moreno’s arrest on the current charge. But for the reasons explained in the text, there is
such a dearth of information about the alleged video that it would be speculative to find
that it had ever existed.
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Conclusion
The judgment of the district court is affirmed.
IT IS SO ORDERED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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