United States v. Brian Moore

United States Court of Appeals
For the Eighth Circuit
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No. 10-3200
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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brian Moore

lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: August 1, 2012
Filed: August 10, 2012
[Unpublished]
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Before COLLOTON and BENTON, Circuit Judges, and KOPF,1 District Judge.
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PER CURIAM.

This case is on remand from the Supreme Court. In our opinion filed July 14,
2011, United States v. Moore, 461 F. App’x 517 (8th Cir. 2011), we affirmed Brian

1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, sitting by designation.
Moore’s conviction under 21 U.S.C. § 841(b)(1)(A), and we affirmed his sentence.
Moore then petitioned the Supreme Court for a writ of certiorari. The Supreme Court
granted the petition, vacated our judgment, and remanded the case for further
consideration in light of Dorsey v. United States, 132 S. Ct. 2321 (2012).

We affirm Moore’s conviction for the reasons stated in our prior opinion. 461
F. App’x at 517-18. As for Moore’s sentence, Dorsey held that “the new, more
lenient mandatory minimum provisions” of the Fair Sentencing Act (“FSA”) “apply
to offenders who committed a crack cocaine crime before August 3, 2010, but were
not sentenced until after August 3.” 132 S. Ct. at 2326. Moore fits the profile
described in Dorsey. A jury found Moore guilty of conspiracy to distribute with
intent to distribute 50 grams or more of a mixture and substance containing cocaine
base on December 10, 2009. Because Moore had a qualifying felony drug conviction,
the district court sentenced him on September 23, 2010, to a mandatory minimum
sentence of 20 years of imprisonment under 21 U.S.C. § 841(b)(1)(A). Pursuant to
Dorsey and the FSA, the drug quantity range found by the jury no longer requires
imposition of the same statutory mandatory sentence. We therefore vacate Moore’s
sentence and remand the case to the district court for resentencing consistent with the
Supreme Court’s ruling in Dorsey and the FSA.
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