FILED
NOT FOR PUBLICATION OCT 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10464
Plaintiff - Appellee, D.C. No. 2:12-cr-01335-DGC-1
v.
MEMORANDUM*
MARLON MOORE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted October 8, 2014
Phoenix, Arizona
Before: D.W. NELSON, SILVERMAN, and M. SMITH, Circuit Judges.
Defendant Marlon Moore appeals from his conviction and sentence for
possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We have jurisdiction under 28 U.S.C. § 1291. We affirm the conviction and
sentence.1
Moore argues that the search of his residence was unlawful because his
fiancée’s consent was coerced. Whether consent is obtained through coercion
depends on the totality of the circumstances and is a question of fact that we
review for clear error. United States v. Enslin, 327 F.3d 788, 792 (9th Cir. 2003).
The district court concluded that, although Moore’s fiancée surely consented in
part to ensure the welfare of her children, her consent was not the result of any
forceful, intimidating, or threatening activity by the officers and was ultimately
freely given. Under the totality of the circumstances of this case, that factual
finding was not clearly erroneous. See United States v. Patayan Soriano, 361 F.3d
494, 502-03 (9th Cir. 2003).
Moore also argues that the district court erred in overruling his objection
under Batson v. Kentucky, 476 U.S. 79 (1986), to the government’s use of a
peremptory strike of a Hispanic juror. In overruling the Batson objection, the
district court stated: “I take as a good faith representation from the prosecution
team that they saw him putting his head on the bench and appearing not to pay
attention. That to me is a non-discriminatory basis for a peremptory strike.” The
1
In a separate opinion contemporaneous with this memorandum, we rejected
Moore’s argument that the search of his residence was unlawful under Georgia v.
Randolph, 547 U.S. 103 (2006).
district court thus explicitly “credited the prosecutor’s assertion” as to a juror’s
demeanor. Snyder v. Louisiana, 552 U.S. 472, 479 (2008). Such “determinations
of credibility and demeanor lie peculiarly within a trial judge’s province,” and, “in
the absence of exceptional circumstances,” reviewing courts are to “defer to” the
trial court. Id. at 477 (internal quotation marks omitted). The trial court’s
determination here does not represent an “exceptional circumstance,” and it was
not clearly erroneous.
Moore next argues that the mid-trial disclosure of an interview his fiancée
gave to government agents, in which she stated that she had not seen drugs in the
house when she left on the morning of January 19, 2012, constituted a violation of
Brady v. Maryland, 373 U.S. 83 (1963). The mid-trial turnover of this interview
was not, however, a suppression that “undermines confidence in the outcome of the
trial.” United States v. Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011). The
evidence presented at trial – including the testimony of the officers who entered
Moore’s residence and discovered all of the marijuana and packing materials and
the testimony regarding Moore’s confession – was overwhelming that Moore
possessed the drugs on January 19, 2012 with an intent to distribute. The fiancée’s
statement, even if believed, does not refute the government’s evidence or support
any defense that Moore asserted. Given this “overwhelming evidence,” “there is
no reasonable probability that the verdict would have been different if the
favorable evidence had been disclosed,” and thus no Brady violation occurred. See
United States v. Olsen, 704 F.3d 1172, 1185 (9th Cir. 2013).
Finally, Moore raises several issues with respect to his sentencing. Moore
argues that the district court erred in its sentencing guideline calculation by
including drugs from a prior arrest in September of 2011. The only evidence of
this incident offered at sentencing was a case agent’s statement to the probation
officer who prepared Moore’s Presentence Report. Hearsay evidence like this may
be used in sentencing if it is supported by sufficient indicia of reliability. U.S.S.G.
§ 6A1.3 (“In resolving any dispute concerning a factor important to the sentencing
determination, the court may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its probable accuracy.”);
United States v. Petty, 982 F.2d 1365, 1369 (9th Cir.), amended by 992 F.2d 1015
(9th Cir. 1993) (“Due process requires that some minimal indicia of reliability
accompany a hearsay statement.”). Here, the case agent’s statements regarding the
September 2011 arrest were supported by sufficient indicia of reliability.
Following his arrest for the present offense, Moore admitted to law enforcement
officials that he was in the business of buying and selling marijuana for at least the
last three years. Moore explained that he would buy marijuana for the best price he
could obtain from one of his sources, around $550 per pound, and then sell it to his
associates on the East Coast for approximately $900 per pound, shipping the
marijuana to them through UPS. In addition, as noted by the district judge, the
present offense and the September 2011 incident used similar boxes, similar
packing material, and similar quantities. Further, the case agent testified that the
vehicles parked in Moore’s driveway on January 19, 2012, the date Moore was
arrested for the present offense, showed up in his database as being involved in the
September 2011 marijuana dropoff. Therefore, the district court did not abuse its
discretion in finding the hearsay statements sufficiently reliable to be used at
sentencing.
Moore also argues that he was not given a meaningful opportunity to
challenge the district court’s use of the alleged September 2011 incident, as
required by U.S.S.G. § 6A1.3. Section 6A1.3 requires that “[w]hen any factor
important to the sentencing determination is reasonably in dispute, the parties shall
be given an adequate opportunity to present information to the court regarding that
factor.” However, the record shows that Moore was given an adequate opportunity
to address this factor. He was provided with a copy of the PSR containing the
hearsay statements and was able to and did object to the statements contained in
the PSR at sentencing. To the extent Moore is arguing that he should have been
provided with more discovery related to the September 2011 incident, rather than
just the hearsay statements contained in the PSR, section 6A1.3 allows hearsay
evidence to be considered at sentencing provided that it “has sufficient indicia of
reliability to support its probable accuracy.” As explained above, the hearsay
statements at issue possessed a sufficient indicia of reliability.
Next, Moore argues that the district court erred when it denied him a two-
level downward adjustment pursuant to the five-factor “safety valve” provision
contained in 18 U.S.C. § 3553(f). The parties agree that Moore satisfies the first
four safety-valve factors – the only dispute is whether he “truthfully provided to
the Government all information and evidence . . . concerning the offense . . . .” 18
U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5). The district court held that
Moore had not met this factor because he had not truthfully provided all of the
information he knew concerning the September 2011 arrest. Moore does not argue
that the arrest did not occur, nor does he argue that he provided the government
with all the information he knew concerning that incident. Thus, the district court
did not clearly err when it held that Moore’s failure to provide the government
with information about this arrest precluded application of the safety-valve. See
United States v. Rangel-Guzman, 752 F.3d 1222, 1226 (9th Cir. 2014) (“The
district court’s factual determination that a defendant doesn’t qualify for
safety-valve relief is reviewed for clear error.”).
Finally, Moore argues that the district court erred when it refused to give
Moore a two-level downward departure for acceptance of responsibility under
U.S.S.G. § 3E1.1(a). The district court’s decision was based on the fact that Moore
refused to plead guilty and forced the government to go to trial. “A defendant’s
right to contest his guilt before a jury is protected by the Constitution, and his
decision to do so ‘cannot be held against him.’” United States v. Ramos-Medina,
706 F.3d 932, 940 (9th Cir. 2013). In this case, however, the entire theory of
Moore’s case was that the government had failed to meet its burden of proof, as
evidenced by the conclusion of Moore’s closing argument:
The Government has to prove this case beyond a reasonable doubt.
And they have not done so. They have not shown you whose
fingerprints are on this stuff. They have not shown you whose DNA
is on this stuff. They’ve not fingerprinted the boxes or brought the
boxes in. They’ve not ran DNA analysis on the boxes. They’ve not
brought you a recording. They’ve not put agents who can credibly tell
you what was said in that room.
Section 3E1.1 is not designed to apply under these circumstances. See U.S.S.G. §
3E1.1, cmt. n.2 (“This adjustment is not intended to apply to a defendant who puts
the government to its burden of proof at trial by denying the essential factual
elements of guilt, is convicted, and only then admits guilt and expresses
remorse.”). Moreover, the district court’s determination on this point is entitled to
“great deference” because the “sentencing judge is in a unique position to
evaluate” such factors. U.S.S.G. § 3E1.1 cmt. n.5. Thus, on clear error review, the
district court did not err when it found Moore was not entitled to a downward
departure for acceptance of responsibility. See United States v. Garrido, 596 F.3d
613, 617 (9th Cir. 2010) (reviewing for clear error the district court’s factual
finding as to whether the defendant accepted responsibility).
AFFIRMED.2
2
On September 14, 2014, Moore filed a motion requesting that the panel
remand the action with directions to the district court to determine whether to
adjust Moore’s sentence in light of Amendment 782. Because Amendment 782
does not become effective until November 1, 2014, the appropriate course is for
Moore to file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) in
the district court after Amendment 782 goes into effect. Therefore, Moore’s
motion is DENIED.