cocaine. In the instant case, the facts indicate that Moore had
approximately 7 grams of crack cocaine, and that the conspiracy
was responsible for 15 grams.
Moore's two prior felony convictions are both for attempted
possession with intent to distribute. An admittedly anomalous
crime, this inchoate crime nonetheless is a felony
narcotics-related crime for purposes of the sentencing
guidelines. The Assistant United States Attorney argued that the
Court should consider that pleas to such "attempted possession"
charges were commonly made in D.C. Superior Court in an effort
to permit defendants to avoid mandatory minimum sentences.
Nevertheless, the Court can not ignore the real difference
between inchoate and non-inchoate offenses, and will not assume
Moore to be guilty of the completed offense where he pled to the
attempted offense. That Moore's prior convictions are for
attempted offenses, and that the instant offense is the first
time that he has been convicted of a completed crime, suggest
that his career offender status may over-represent his criminal
Moore also characterizes his previous offenses as
"street-level" dealing involving small quantities of drugs and
non-violent in nature. See United States v. Williams,
78 F. Supp.2d 189 (S.D.N.Y. 1999) (a street seller of narcotics, as
compared to a wholesale distributor, is involved in nonviolent
crime and thus "not the type of offender" pictured by the
Sentencing Commission under the category of career offenders).
The government counters that it is not unusual for narcotics
offenses to be nonviolent. The Court is wary of suggesting that
consistent street-level dealing is any less representative of a
career offender's criminal history. Furthermore, the Court notes
that Moore has apparently escalated his criminal behavior, as
the instant offense involved a fairly elaborate scheme operating
out of a house. Thus, the Court is not convinced that the
street-level nature of Moore's previous offenses weighs
significantly in favor of his motion for a downward departure.
In contrast, the sentences that Moore received for his
previous convictions strongly suggest that a career offender
status would over-represent his criminal history. Moore received
probation after his first conviction for attempted possession
with intent to distribute. After entering a guilty plea to a
second charge of attempted possession with intent to distribute,
Moore's probation was revoked and he was sentenced to concurrent
terms of 100 to 300 days for the first offense and one to three
years for the second. He was incarcerated for approximately
one-and-a-half years. In both cases, the court placed Moore into
the S.T.A.R. drug treatment program in recognition of the fact
that he suffered from cocaine addiction.
The Court also considers the fact that Moore's three prior
convictions occurred between June 14, 1995 and August 7, 1996.
He had no intervening arrests between those convictions and the
instant offense, for which he was arrested on April 13, 2000,
almost four years after his last contact with the criminal
justice system. Furthermore, the two prior felony offenses
occurred in approximately the same time period and arose out of
Moore's struggle with cocaine addiction during that period.
Finally, the Court considers the increase in the Guideline
range caused by Moore's career offender status. With a total
offense level of 31 and a criminal history category of VI, Moore
faces a sentence of 188 to 235 months. Without the enhancements
of the career offender status, Moore would have a total offense
level of 25 and a criminal history category of V, resulting in a
Guideline sentencing range of 100 to 125 months. Thus, Moore's
status increases his exposure under the Guidelines by
After carefully considering the nature of Moore's previous
felony offenses and the small quantity of drugs involved in
those offenses, the approximately four years in between the
commission of the previous offenses and the instant offense, the
relative length and nature of his previous sentences in
comparison with the sentence prescribed by the Guidelines and
the extreme effect of the career offender status on Moore's
sentencing range, the Court finds that the career offender
status significantly over-represents his criminal history.
B. Likelihood that defendant will engage in future criminal
Moore cites United States v. Clark, 8 F.3d 839*(D.C.Cir.
1993), for his argument that the district court may make a
downward departure if it finds that the criminal history
category "significantly over-represents . . . the likelihood of
recidivism." Moore states that his addiction is the main reason
for his criminal activity and that he is unlikely to engage in
future criminal activity upon release because he will be older.
If sentenced within the unenhanced range, Moore will be 43 years
old when released from prison, and will have had access to
approximately seven years of drug treatment. Amicus and Moore
argue that, consequently, the likelihood of recidivism is
extremely low. The government counters that the likelihood of
recidivism is not less because age has no correlation with
recidivism. The Court is not persuaded by defendant's argument,
but need not reach it as it finds that the career offender
status over-represents Moore's criminal history.
IV. Other Grounds for a Downward Departure
Moore also argues that the Court should downward departure due
to his family responsibility, health concerns and a combination
of other factors. At the motion hearing, these bases for
departure were essentially conceded by the defendant. Thus,
while Moore cited Judge Tatel's concurrence in Koon v. United
States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),
for the proposition that extraordinary family circumstances may
warrant a downward departure, defense counsel admitted that
Moore's family circumstances were not extraordinary. Similarly,
while arguing that his current high blood pressure may be
symptomatic of an extant cardiac problem, Moore conceded that
this health problem was insufficient to warrant a departure.
For the foregoing reasons and upon careful consideration of
the memoranda in aid of sentencing, the responses and replies
thereto and the relevant statutory and case law, the Court
hereby finds that the career offender status over-represents the
defendant's criminal history category and accordingly GRANTS
defendant's motion for a downward departure.
© 1992-2003 VersusLaw Inc.