FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 13, 2012
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-1358
v.
(D.C. No. 1:10-CR-00158-REB-2)
(D. Colo.)
ANDRE DION MOORE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and GORSUCH, Circuit Judges.
After Andre Moore pleaded guilty to possession of cocaine with intent to
distribute and related conspiracy charges, the district court turned its attention to
sentencing. The court found that Mr. Moore’s adjusted offense level was 25 and
that his past criminal conduct placed him in criminal history category VI, the
guidelines’ highest category. These numbers yielded an advisory guidelines
sentence of between 110 and 137 months in prison. Because of Mr. Moore’s
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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order and judgment is not binding precedent except under the doctrines of law of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.
substantial assistance to law enforcement, however, the district court chose to
depart downward by 25% from the bottom end of this range, ultimately issuing a
sentence of 82 and one half months.
On appeal, Mr. Moore doesn’t claim that the district court miscalculated the
guidelines range or committed any other procedural error. Instead, he argues his
sentence is substantively unreasonable. Because his sentence falls below the
range set by the sentencing guidelines, however, we accord it a presumption of
reasonableness. United States v. Perez-Jiminez, 654 F.3d 1136, 1147 (10th Cir.
2011). We owe the district court’s procedurally valid sentence “substantial
deference,” and we may overturn it only if it is “arbitrary, capricious, whimsical,
or manifestly unreasonable,” United States v. Sayad, 589 F.3d 1110, 1116 (10th
Cir. 2009) (quotation omitted).
None of these circumstances exists here.
Mr. Moore complains that the guidelines substantially over-represent the
seriousness of his criminal history, noting that many of the prior convictions
leading to his placement in criminal history category VI involved traffic
violations. And, he points out, even the pre-sentence report recommended a
downward departure on the grounds that the guidelines overstated the seriousness
of his criminal history.
But though there is surely room for disagreement about whether Mr.
Moore’s sentence was appropriate, we cannot say that the district court’s decision
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was unreasonable. First, this isn’t a case where Mr. Moore fell close to the
border between two criminal history categories; it takes 13 criminal history points
to put a defendant into category VI, and he received 17 points. We also note, as
did the district court, that many of the offenses leading to his placement in
category VI were indisputably serious. They include a felony drug charge, an
assault conviction, and three convictions for driving under the influence (twice
for alcohol and once for marijuana). On top of the nine crimes for which the
guidelines assigned Mr. Moore criminal history points, he was convicted of three
additional crimes (including another drug possession charge) for which the
guidelines assigned him no points but which the district court was entitled to, and
did, take into account. See, e.g., United States v. Villasenor, 413 F. App’x. 78, 81
(10th Cir. 2011). In light of all this, we cannot say it was unreasonable for the
district court to conclude that Mr. Moore’s twelve criminal convictions evinced a
systematic disregard for the law and that the advisory guidelines did not
substantially overstate his criminal history.
Affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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