Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. MOORE

June 6, 2002

UNITED STATES OF AMERICA
V.
RONALD MOORE, DEFENDANT.



The opinion of the court was delivered by: Sullivan, District Judge.

MEMORANDUM OPINION

The Court first heard argument on Moore's sentencing on October 14, 2001. The defendant moved for several downward departures, including one based on the argument that Moore's status as a career offender over-represents his criminal history. On October 25, 2002, the Court appointed the Federal Public Defender for the District of Columbia as amicus curiae in this matter and requested that amicus file a brief addressing whether Moore qualified as a career offender pursuant to U.S.S.G. § 4B1.1. The Court heard argument from the defendant, the United States and amicus on May 7, 2002.

Upon careful consideration of the memoranda filed by the parties and by amicus in this matter, the entire record herein and the relevant statutory and case law, the Court finds that the career offender status over-represents Moore's criminal history and will, therefore, grant the defendant's motion for a downward departure. Accordingly, the Court will depart downward and sentence Moore in a range consistent with that mandated by the Guidelines, but without the enhancement for his career offender status.

I. Sentencing Guidelines

Pursuant to the 2001 edition of the United States Sentencing Commission Guidelines Manual, the base level offense for the count to which Moore pled guilty is 26. This base offense level is enhanced by two levels pursuant to the plea agreement, which provides for such an enhancement due to Moore's aggravating role as an organizer, leader, manager, or supervisor in this criminal activity. In addition, the presentence report deems Moore a career offender, resulting in an adjusted offense level of 34 because the penalty for the instant offense is punishable by a term of 40 years. See U.S.S.G. § 4B1.1. The presentence report recommends, and the Court grants, a three-level reduction in the offense level for acceptance of responsibility. Thus, Moore's total offense level is 31.

Moore has a total of ten criminal history points. On November 1, 1995, he pled guilty in D.C. Superior Court to attempted possession with intent to distribute cocaine. His sentence was suspended and he was placed on 24-months probation. As part of his probation, Moore was to attend the S.T.A.R. drug treatment program. For this conviction, Moore received two criminal history points.

On April 16, 1996, Moore was arrested after he was observed engaging in a drug transaction. He again pled guilty in D.C. Superior Court to attempted possession with intent to distribute cocaine. Following his second arrest, Moore's probation in his first conviction was revoked and he was sentenced to 100 to 300 days. For the second conviction, Moore was sentenced on March 27, 1998 to one to three years. The sentences were imposed concurrently, and Moore was incarcerated for approximately one-and-a-half years. Moore received three criminal history points for the second conviction.

On August 7, 1997, Moore was arrested and subsequently pled to a misdemeanor charge of attempted possession of cocaine. On December 15, 1997, he was sentenced to 120 days of incarceration. Moore received two criminal category points for this third conviction. Consequently, Moore's previous criminal convictions result in a subtotal criminal history score of seven.

Because Moore was on parole for the sentence imposed on March 27, 1998, at the time the instant offense was committed, two additional points are added to his criminal history score. See U.S.S.G. § 4A1.1(d). The fact that Moore committed the instant offense less than two years after he was released from custody on February 10, 1999 for the sentence imposed March 27, 1998 adds an additional point to his score, resulting in a total of ten points, or a criminal history category of V. See U.S.S.G. § 4A1.1(e). Moore's career offender status increases his criminal history category from V to VI.

II. Career Offender Status

Moore concedes that he technically falls within the definition of "career offender status" as defined by U.S.S.G. § 4A1.3. He has two prior narcotics-related felonies and was over the age of 18 at the time the instant drug-related offense was committed.

The Sentencing Guidelines define a "controlled substance offense" to include "possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 40B1.2(b). The commentary identifies the federal inchoate crimes of possession of a listed chemical with intent to manufacture a controlled substance and possession of a prohibited flask or equipment with intent to manufacture a controlled substance as controlled substance offenses. Id., comment. at 1. Attempted possession with intent to distribute is not discussed in section 4B1.2(b) or in the commentary.

In 1993, in United States v. Price, the D.C. Circuit held that inchoate narcotic offenses should not be considered for purposes of determining a defendant's career offender status. 990 F.2d 1367 (D.C.Cir. 1993). However, in 1995, the Sentencing Commission amended its commentary regarding the "career offender" to reject the reasoning of Price. See U.S.S.G. § 4B1.1, comment. (backg'd.) (Nov. 1998). Since the amendment of the commentary, the D.C. Circuit has recognized the Commission's rejection of Price. See, e.g., United States v. Powell, 161 F.3d 738, 739 (D.C.Cir. 1998) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.