[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 5, 2006
No. 05-15329 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20210-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASPER MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 5, 2006)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Jasper Moore appeals his conviction following a jury trial and his 210-
month sentence for possession of a firearm and ammunition by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Moore argues on appeal that the
district court abused its discretion in admitting during Moore’s trial evidence of his
prior uncharged conduct of possessing a firearm. Moore also contends that his
210-month sentence was unreasonable in light of the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
For the reasons set forth more fully below, we affirm.
A federal grand jury returned an indictment, charging Moore with the above-
referenced § 922(g)(1) offense. Prior to trial, the government filed two notices of
its intent to rely on several prior bad acts, pursuant to Fed.R.Evid. 404(b). Moore
responded by filing a motion in limine, seeking to exclude evidence of all of these
acts. The government subsequently replied that it had decided to rely only on a
August 20, 2004, arrest, for possession of a firearm by a convicted felon. The
district court denied Moore’s motion in limine, explaining, in relevant part, that the
proffered evidence was relevant and admissible under Fed.R.Evid. 404(b), to
demonstrate Moore’s criminal intent.
At trial, Carl Baaske, a detective with the Miami-Dade Police Department,
testified that, on March 1, 2005, while watching an apartment complex in Miami,
2
Florida that had been the scene of frequent drug deals he observed three persons
near a dumpster, including Travis Jones, whom Detective Baaske had warned one
week earlier about selling drugs, and Moore, whom Detective Baaske had not
previously met. That same evening, Detective Baaske observed Jones engage in
nine drug transactions, each time giving the buyer a bag containing either
marijuana, cocaine, or cocaine base, in exchange for money. During these
transactions, Moore either stayed within two to three feet of Jones, conversing with
him, or looked up and down the nearby avenue—conduct Detective Baaske
attributed to acting as a “lookout.” After Detective Baaske described to other
officers the three persons he had observed at the dumpster and these other officers
approached the suspects, the suspects all ran away from the dumpster, with Jones
running towards his mother’s residence. The officers then arrested Jones and
executed a search warrant for his mother’s residence, during which they recovered
marijuana, cocaine base, and a firearm.
Orlando Reyes, a sergeant with the Miami-Dade Police Department, also
testified, stating that, after Detective Baaske informed him about these drug sales,
and after he and Officer Willie McFadden approached the suspects, Moore ran
through a breezeway in the complex, at the end of which the officers blocked his
path. When Moore attempted to run through these officers, they grabbed him,
3
wrestled him to the ground, and handcuffed him, during which time Moore
vigorously resisted them. When the officers finally were able to handcuff Moore
and pull him up from the ground, Sergeant Reyes saw a firearm fall out of the left
pocket of Moore’s pants.1
The government, over Moore’s renewed Rule 404(b) objection, also
introduced testimony from Adrian Barazal, another detective with the Miami-Dade
Police Department, that, on August 20, 2004, at about 3:00 p.m., Detectives
Barazal and Octavio Tellez were on patrol in the Liberty City area of Miami,
Florida, in an unmarked police vehicle, when they observed a driver fail to stop at
the stop sign. When the detectives attempted to stop this vehicle by turning on
their red and blue lights, they saw the driver look back at them and accelerate his
vehicle, thus beginning a car chase. During this chase, Detective Barazal observed
(1) the driver’s head “disappear for a second and then pop back up,” and (2) the
driver reach across the passenger of the vehicle and throw an object out of the
window. As the thrown object hit the ground, the detectives slowed their vehicle
and saw that it was a revolver. The detectives, however, then resumed their chase
and eventually stopped the vehicle, which Moore was driving. Upon his arrest,
1
The government also produced (1) a stipulation by Moore that he previously had been
convicted of a state felony; and (2) evidence showing that the firearm that fell out of Moore’s
pocket was an operable Star .380 caliber pistol, had six rounds of ammunition and had traveled
in interstate or foreign commerce.
4
Moore told the detectives: “You didn’t catch me with it.” Detective Tellez later
recovered from the side of the road a Smith & Wesson .38 caliber revolver.
The court then instructed the jury twice that it could consider this evidence
of uncharged prior bad acts only for the limited purpose of determining Moore’s
intent as to the charged § 922(g)(1) offense, and only if it decided beyond a
reasonable doubt that Moore had committed the charged offense. Moore decided
not to testify or put on any evidence. The jury convicted him as charged.
Moore’s presentence investigation report (“PSI”) calculated that he had a
base offense level of 24, pursuant to U.S.S.G. § 2K2.1(a)(2), because the offense
involved possessing a firearm and ammunition by a convicted felon who
committed the offense subsequent to sustaining two felony convictions of either a
crime of violence or a controlled-substance offense. The PSI also recommended a
two-level increase, pursuant to U.S.S.G. § 2K2.1(b)(4), because the firearm was
stolen, and a four-level increase, pursuant to § 2K2.1(b)(5), because the firearm
and ammunition were used or possessed in connection with a drug offense.
However, because Moore was an armed career criminal, he was subject to (1) a 15-
year mandatory minimum statutory sentence, pursuant to 18 U.S.C. § 924(e); and
(2) an adjusted offense level of 33, pursuant to U.S.S.G. § 4B1.4(a) & (b)(3)(B).
5
With a criminal history category of V,2 Moore had a resulting guideline range of
210 to 262 months’ imprisonment. Moore’s only objection to the PSI was to the
four-level § 2K2.1(b)(5) enhancement.
On September 7, 2005, at sentencing, Moore renewed his objection to the
§ 2K2.1(b)(5) enhancement. He, however, conceded that this enhancement would
not affect his offense level because, due to his status as an armed career criminal,
his offense level automatically was increased to level 33. The court, nevertheless,
granted Moore’s objection to the § 2K2.1(b)(5) enhancement and, adopting the
PSI’s guideline calculations, determined that Moore’s resulting guideline range
was 210 to 262 months’ imprisonment.
Moore then argued that his statutory mandatory minimum sentence of 15
years’ imprisonment was “more than adequate” to punish him and to deter him
from committing future offenses. Moore also argued that, although he had a long
criminal history, this history was, at least in part, the result of the failure of the
criminal justice system to rehabilitate him. The government responded that
Moore’s prior criminal history involved violent felony offenses, including
2
Moore’s PSI reflects that his criminal history category of V was based on a lengthy
criminal history, including convictions for burglary with assault, robbery with a firearm, armed
robbery with a firearm, attempted robbery, robbery and burglary with an assault, and a failure on
Moore’s part to take advantage of opportunities to rehabilitate himself. This category also was
the result of Moore being an armed career criminal, pursuant to U.S.S.G. § 4B1.4(c)(1).
6
carjacking, with two of his offenses involving the use of firearms. The government
also contended that the evidence showed that Moore was using the firearm in the
instant offense to further drug-trafficking activity. After considering the
sentencing factors in 18 U.S.C. § 3553(a), the court determined that a sentence at
the bottom of Moore’s guideline range, that is, 210 months’ imprisonment, was
appropriate.
Issue 1: Evidence of Moore’s prior uncharged conduct
Moore argues that the district court abused its discretion in admitting, as
evidence of his intent, that he had possessed a firearm as a convicted felon on
August 20, 2004, because, in not putting on a defense at trial, he had not contested
the issue of intent. Moore contends that this evidence, instead, was improperly
admitted to “bolster the credibility of” the government’s witnesses.
Rule 404(b) provides in relevant part that:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . ..
Fed.R.Evid. 404(b). Our test for admissibility of Rule 404(b) evidence is as
follows:
First, the evidence must be relevant to an issue other than the
defendant’s character; Second, the act must be established by
7
sufficient proof to permit a jury finding that the defendant committed
the extrinsic act; Third, the probative value of the evidence must not
be substantially outweighed by its undue prejudice, and the evidence
must meet the other requirements of Rule 403.3
United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (quotation
omitted). The district court’s decision to admit or exclude such evidence is
reviewed for abuse of discretion. Id.
In applying the first element of this Rule 404(b) test—the only element
Moore is challenging on appeal—we have explained that the government has the
burden of proving knowing possession of a firearm to convict a defendant of a
§ 922(g) offense. United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir.), cert.
denied, 126 S.Ct. 768 (2005). Thus, we concluded in Taylor that, in the absence of
the defendant’s admission of this intent, and in light of the district court’s limiting
instruction to the jury, the court did not abuse its discretion in admitting evidence
of a prior conviction for being a felon in possession of a firearm under Rule
404(b). See id.
Furthermore, to the extent Moore has cited to our prior decision in United
States v. Matthews, 411 F.3d 1210, 1225 (11th Cir. 2005), vacated and superseded
3
Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” See Fed.R.Evid. 403.
8
on rehearing by United States v. Matthews, 431 F.3d 1296 (11th Cir. 2005), in
which we determined that the admission of Rule 404(b) evidence was improper
when the defendant failed to mount an affirmative defense and, thus, squarely
challenge the issue of intent, this decision has been vacated.4 Indeed, in our
superseding opinion in Matthews, we explained that a defendant’s plea of not
guilty, alone, “without an accompanying affirmative removal,” leaves the element
of intent at issue. See Matthews, 431 F.3d at 1311.
Similar to the facts in Taylor, the charge at issue here was a § 922(g)(1)
offense; the government, therefore, had the burden of proving that Moore
knowingly possessed a firearm. See Taylor, 417 F.3d at 1182. Although Moore is
contending that he did not testify or present any evidence, he also has not cited to
evidence in the record showing that he entered into a stipulation relating to, or
admitted, this intent. Moreover, the challenged Rule 404(b) evidence here
occurred in August 2004, within seven months of the charged conduct in March
2005. See also United States v. Butler, 102 F.3d 1191, 1195-96 (11th Cir. 1997)
(holding that a three-year-old prior conviction for possession of cocaine for
personal use was relevant and admissible for purposes of demonstrating the
4
In citing to our prior decision in Matthews, Moore notes that it has been superseded
and vacated. He, however, relies on it, among other authorities, for the proposition that, where
intent is at issue, and the act charged “is not equivocal,” proof of other offenses will not be
permitted.
9
defendant’s intent in the charged conspiracy for possession with intent to
distribute).
Thus, instead of constituting improper character evidence, this evidence was
relevant as evidence of Moore’s knowledge and intent. See Matthews, 431 F.3d at
1311; see also Taylor, 417 F.3d at 1182. Additionally, the court properly
instructed the jury twice that it could consider this evidence of uncharged prior bad
acts only for the limited purpose of determining Moore’s intent as to the charged
§ 922(g)(1) offense, and only if the jury decided beyond a reasonable doubt that
Moore had committed the charged offense. We, therefore, conclude that the
district court did not abuse its discretion in admitting this Rule 404(b) evidence.
Issue 2: Whether Moore’s 210-month sentence was reasonable
Moore also argues on appeal that his 210-month sentence was unreasonable
because, although this sentence was at the bottom of his guideline range, his length
of incarceration exceeded his “culpability for this crime.” Moore contends that,
although he should have been subject to a longer sentence for being a “recidivist
offender,” his guideline range in the absence of his criminal history only would
have been 21 to 27 months’ imprisonment, and his substantially increased
guideline range for being an armed career offender of 210 to 262 months’
imprisonment, which represented a “10-fold increase,” far exceeded a reasonable
10
guideline range. Citing to State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S.
408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), Moore also argues that his sentence
was in violation of the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.5
Prior to Moore’s sentencing hearing, the Supreme Court issued its decision
in Booker, holding that the mandatory nature of the federal guidelines rendered
them incompatible with the Sixth Amendment’s guarantee to the right to a jury
trial. Booker, 543 U.S. at 232-35, 125 S.Ct. at 749-51.6 In a second and separate
majority opinion, the Booker Court explained that, to best preserve Congress’s
intent in enacting the Sentencing Reform Act of 1984, the appropriate remedy was
to “excise” two specific sections—18 U.S.C. § 3553(b)(1) (requiring a sentence
within the guideline range, absent a departure) and 18 U.S.C. § 3742(e)
(establishing standards of review on appeal, including de novo review of
5
The Supreme Court discussed in State Farm that, “[w]hile States possess discretion over
the imposition of punitive damages, it is well established that there are procedural and
substantive constitutional limitations on these awards.” See State Farm Mut. Auto Ins. Co., 538
U.S. at 416, 123 S.Ct. at 1519. The State Farm Court ultimately concluded that an award of
$145 million in punitive damages against a defendant, where full compensatory damages only
were $1 million, was excessive and in violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. See id. at 412, 123 S.Ct. at 1517.
6
The Supreme Court in Booker explicitly reaffirmed its rationale in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” See Booker, 543 U.S. at 244, 125 S.Ct. at 756.
11
departures from the applicable guideline range)—thereby effectively rendering the
federal guidelines advisory only. Id. at 258, 125 S.Ct. at 764. Thus, the Booker
Court concluded that a defendant’s guideline range is now advisory; it no longer
dictates his final sentence, but, instead, is an important sentencing factor that the
sentencing court is to consider, along with the factors contained in 18 U.S.C.
§ 3553(a).7 Id. at 259-60, 125 S.Ct. at 764-65.
We review the sentence imposed by the district court for reasonableness.
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). When we review for
reasonableness, our review is deferential. Id. at 788. We do not, as the district
court did, determine the exact sentence to be imposed. Id. Moreover, the party
who is challenging the sentence “bears the burden of establishing that the sentence
is unreasonable in the light of both [the] record and the factors in [§ 3553(a)].” Id.
7
The relevant sentencing factors enumerated in § 3553(a) include: “(1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed–(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of
sentence and the sentencing range established for . . . (A) the applicable category of offense
committed by the applicable category of defendant as set forth in the guidelines . . .; (5) any
pertinent policy statement []; (6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct; and (7) the need
to provide restitution to any victims of the offense.” See 18 U.S.C. § 3553(a)(1)-(7).
12
When the court considered the factors of § 3553(a), it was not required to
discuss each of them. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005) (explaining “nothing in Booker or elsewhere requires the district court to
state on the record that it has explicitly considered each of the section 3553(a)
factors or to discuss each of the section 3553(a) factors”). Regardless, in the
instant case, the court stated that it had taken into account Moore’s advisory
guideline range, as well as the statutory sentencing factors in § 3553(a), including
the need for the sentence in this case to reflect the seriousness of the offense, to
promote respect for the law, to provide just punishment and adequate deterrence,
and to protect the public. See 18 U.S.C. § 3553(a)(2)(A) (the need for the sentence
imposed to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense); 18 U.S.C. § 3553(a)(2)(C) (the
need for the sentence imposed to protect the public from further crimes of the
defendant); 18 U.S.C. § 3553(a)(3) (the kinds of sentences available).
Moore’s PSI also reflects that he had a lengthy criminal history and had not
taken advantage of past opportunities to rehabilitate himself. See 18 U.S.C.
§ 3553(a)(1) (“the history and characteristics of the defendant”). Thus, Moore has
failed to show that the court did not consider § 3553(a)’s sentencing factors, or that
his 210-month sentence, which was at the bottom end of his guideline range of 210
13
to 262 months’ imprisonment, was unreasonable. See Talley, 431 F.3d at 788
(explaining that, although a sentence within a defendant’s guidelines range is not
per se reasonable, ordinarily we “would expect a sentence within the [g]uideline
range to be reasonable”).
Finally, to the extent Moore is contending for the first time on appeal that
the district court committed reversible error in relying on the “10-fold” increase in
his guideline range due to his recidivism, he is analogizing to the Supreme Court’s
limits on disparities between punitive and compensatory damage awards in civil
cases. Our review of this newly raised argument, however, only is for plain error.
See United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.) (reviewing a
newly raised Booker challenge for plain error), cert. denied, 125 S.Ct. 2935 (2005).
“An appellate court may not correct an error the defendant failed to raise in the
district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects
substantial rights.’” Id. (quotation omitted). “‘If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.’” Id. (quotation omitted).
“[A]n error cannot meet the ‘plain’ requirement of the plain error rule if it is
not ‘clear under current law.’” United States v. White, 416 F.3d 1313, 1319 (11th
14
Cir. 2005) (quotation omitted). “[W]here neither the Supreme Court nor this Court
has ever resolved an issue, and other circuits are split on it, there can be no plain
error in regard to that issue.” Id. (quotation omitted). Here, neither the Supreme
Court nor this Court has addressed the argument that the Supreme Court’s limits on
disparities in civil awards should be applied in the criminal-sentencing context.8
Thus, even if we were to conclude that error occurred, it was not “plain.”
Accordingly, we conclude that the district court did not abuse its discretion
in admitting evidence of Moore’s prior uncharged conduct of possessing a firearm.
Additionally, Moore has failed to show that his 210-month sentence was
unreasonable. We, therefore, affirm his conviction and sentence.
AFFIRMED.
8
Indeed, the Supreme Court explained in State Farm that, “[a]lthough these [punitive
damage] awards serve the same purposes as criminal penalties, defendants subjected to punitive
damages in civil cases have not been accorded the protections applicable in a criminal
proceeding. This increases our concern over the imprecise manner in which punitive damages
systems are administered.” See State Farm Mut. Auto Ins. Co., 538 U.S. at 417, 123 S.Ct. at
1520.
15
United States v. Jasper Moore
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2006-04-05
Citations: 174 F. App'x 540
Copy CitationsCombined Opinion