                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2004

USA v. Moorer
Precedential or Non-Precedential: Precedential

Docket No. 03-2476




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"USA v. Moorer" (2004). 2004 Decisions. Paper 275.
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                      PRECEDENTIAL             (Opinion Filed: September 20, 2004)
                                                          ___________
       UNITED STATES COURT OF
              APPEALS
        FOR THE THIRD CIRCUIT
             ___________

              No. 03-2476
              ___________                    Gavin P. Lentz, Esq. [ARGUED]
                                             David P. Heim, Esq.
   UNITED STATES OF AMERICA                  Bochetto & Lentz, P.C.
                                             Philadelphia, PA 19102

                     v.                      Counsel for Appellant

          LAVERN MOORER,
                                             Edmond Falgowski
                                             Assistant United States Attorney
                   Appellant                 District of Delaware
       ________________________
                                             Elizabeth A. Olson [ARGUED]
 ON APPEAL FROM THE UNITED                   Appellate Section, Criminal Division
STATES DISTRICT COURT FOR THE                United States Department of Justice
     DISTRICT OF DELAWARE                    P.O. Box 899, Ben Franklin Station
 District Court Judge: The Hon. Sue L.       Washington, DC 20044
                Robinson
            (No. 01-CR-071)                  Counsel for Appellee
             ___________
                                                   _______________________
          Argued: May 5, 2004
                                                   OPINION OF THE COURT
 BEFORE: SLOVITER and FUENTES,                     _______________________
Circuit Judges,
     and POLLAK, District Judge.*

                                             FUENTES, Circuit Judge:
                                                   In October 2001, Appellant Lavern
   *
                                             Moorer was charged with possession with
    Honorable Louis H. Pollak, Senior        the intent to distribute cocaine and
District Judge for the United States         possession of a firearm. A year later,
District Court for the Eastern District of   Moorer pled guilty and was sentenced to a
Pennsylvania, sitting by designation.
term of 120 months in prison. Factored              kilograms of cocaine, and possession of a
into this sentence was the District Court’s         .380-caliber semi-automatic pistol.
decision to designate Moorer a “career
                                                             Moorer pled guilty to the 2001
offender,” a designation arrived at by
                                                    offenses of possession with intent to
including Moorer’s 1990 conviction for
                                                    distribute more than 500 grams of cocaine
aggravated assault. The principal issue on
                                                    and unlawful possession of a firearm in
appeal is whether Moorer’s 1990
                                                    August 2002.          Moorer’s Presentence
conviction counts toward establishing his
                                                    Investigation Report (“PSR”) initially
career offender status, even though Moorer
                                                    assigned him a criminal history category of
was only 17 years old at the time. Because
                                                    V. However, pursuant to U.S. Sentencing
we find that Moorer’s 1990 conviction is a
                                                    G u i d e l i n e s M a n u a l ( h e r e in a f t e r
“prior felony conviction” for purposes of
                                                    “U.S.S.G.”) § 4B1.1(a), the PSR dubbed
career offender status, we affirm the
                                                    Moorer a “career offender:”
judgment of the District Court.
                                                            A defendant is a career offender if
             I. Background
                                                            (1) the defendant was at least
        The account of Moorer’s relevant                    eighteen years old at the time the
criminal history begins in 1989, at which                   defendant committed the instant
time he was serving a term of juvenile                      offense of conviction; (2) the
confinement for possession with intent to                   instant offense of conviction is a
deliver cocaine. In an attempt to escape                    felony that is either a crime of
from his juvenile detention, Moorer                         violence or a controlled substance
assaulted a corrections officer, and was                    offense; and (3) the defendant has
convicted of this offense in New Jersey                     at least two prior felony convictions
Superior Court in May 1990. The court                       of either a crime of violence or a
sentenced Moorer to an indeterminate term                   controlled substance offense.
of incarceration (not to exceed five years)
at Yardville Youth Reception Center, a
facility housing older juveniles and                Specifically, the PSR counted as Moorer’s
younger adults under the control of the             “two prior felony convictions” 1) his 1990
New Jersey Department of Corrections. In            conviction for aggravated assault
1994, while still on parole for his 1990            committed while escaping from a juvenile
conviction, Moorer was convicted of                 detention facility; and 2) his 1994
possession with intent to deliver marijuana         conviction for possession with intent to
and cocaine, both controlled substances,            deliver marijuana and cocaine within a
within a school zone.         Moorer was            school zone. As such, Moorer’s criminal
sentenced to five years in prison for that          history category was increased to VI. Id.
offense. Finally, in August 2001, Moorer            at § 4B1.1(b). Using an offense level of
was arrested and charged with procuring,            31 for a Category VI offender, the District
with the intent to distribute, almost 6             Court calculated a sentence range of 188-

                                              -2-
235 months. The Court then granted a                 an adult. Rather, M oorer contends that a
downw ard departure for substantial                  conviction is a “prior felony conviction”
assistance to the government, resulting in           under § 4B1.1(a) only if both 1) the
a final sentence of 120 months. Moorer               conviction occurs in an adult proceeding
timely appealed. The primary issue on                (instead of in juvenile court), and 2) the
appeal is whether Moorer’s 1990                      conviction results in an adult sentence.
conviction should have counted toward                Moorer asserts that his sentence for the
career offender status.                              1990 conviction for aggravated assault was
                                                     served concurrently with a prior sentence
             II. Jurisdiction
                                                     that he was already serving pursuant to a
       The District Court had subject                juvenile adjudication, and was therefore a
matter jurisdiction pursuant to 18 U.S.C. §          juvenile sentence.
3231. This Court has jurisdiction over the
                                                            In our view, the Guidelines belie
District Court’s sentencing decision
                                                     Moorer’s premise that an adult conviction
pursuant to 28 U.S.C. § 1291 and 18
                                                     must be accompanied by an adult sentence
U.S.C. § 3742.
                                                     to count toward career offender status.
        III. Standard of Review                      The Guidelines offer the following
                                                     definition of “prior felony conviction” for
           We apply a plenary standard of
                                                     purposes of §4B1.1(a):
review over the D istrict Court’s
i n t e rp r e t a tion of th e S entenc ing
Guidelines. E.g., United States v. Lennon,
372 F.3d 535, 538 (3d Cir. 2004).
             IV. Discussion
       Moorer’s main argument on appeal
is that his 1990 conviction should not
count toward career offender status
because he was sentenced as a juvenile
rather than an adult.1 However, Moorer
does not contest that he was convicted as



   1
     Moorer nominally presents a second
argument based on Due Process, but this
argument is merely a reiteration of his
claim that he should not be considered a
career offender because his 1990
conviction resulted in a juvenile
sentence.

                                               -3-
“Prior felony conviction” means a prior              for such an offense, and includes in the
adult federal or state conviction for an             career offender calculation federal and
o f f e nse punishable by death o r                  state adult convictions for all offenses,
imprisonment for a term exceeding one                felonies or otherwise, which could be
year, regardless of whether such offense is          punished by death or a term of
specifically designated as a felony and              imprisonment of a year or more. Note 1
regardless of the actual sentence imposed.           does not impose a separate sentence
. . . A conviction for an offense committed          requirement but places the entire focus on
prior to age eighteen is an adult conviction         the conviction itself, defining includable
if it is classified as an adult conviction           convictions by the extent to which they can
under the laws of the jurisdiction in which          be punished in the relevant jurisdiction.
the defendant was convicted.                         Accordingly, the clear language of Note 1
                                                     refutes Moorer’s attempt to make his
                                                     sentence classification the fulcrum of his
U.S.S.G. § 4B1.2, cmt. n.1 (emphasis                 career offender determination.
added) (hereinafter “Note 1”). Note 1
                                                                Ignoring Note 1, Moorer attempts
clearly defines a “prior felony conviction”
                                                     to import purportedly helpful language
purely in terms of the kind of conviction
                                                     from U.S.S.G. § 4A1.2. First, Moorer
the defendant had, not the kind of
                                                     points to U.S.S.G. § 4B1.2, cmt. n.3
sentence. Note 1 specifically explains that
                                                     (hereinafter “Note 3”), which instructs:
a prior felony conviction includes any state
                                                     “The provisions of § 4A1.2 . . . are
conviction that was counted as an adult
                                                     applicable to the counting of convictions
conviction by the laws of that state
                                                     under § 4B1.1.” § 4A1.2(d)(1), in turn,
“regardless of the actual sentence
                                                     states that an offense committed prior to
imposed.” Id. While it is true, as Moorer
                                                     age eighteen counts toward one’s criminal
asserts, that the phrase “sentence of
                                                     history when “the defendant was convicted
imprisonment” implies incarceration in an
                                                     as an adult and received a sentence of
adult facility2 , where or for how long the
                                                     imprisonment exceeding one year and one
defendant is actually sentenced is of no
                                                     month.” Moorer, however, relies on §
import. Instead, Note 1 focuses on what
                                                     4A1.2, cmt. n.7 (hereinafter “Note 7”),
punishment could follow the conviction
                                                     which states that “for offenses committed
                                                     prior to age eighteen, only those that
                                                     r e s u l te d i n a d u l t s en t e n c e s o f
   2
    In New Jersey, the term                          imprisonment exceeding one year and one
“imprisonment” is not customarily used               month, or resulted in imposition of an
when referring to a juvenile disposition.            adult or juvenile sentence or release from
Juvenile custodial adjudications are                 confinement on that sentence within five
described instead in terms of                        years of the defendant’s commencement of
“incarceration.” See N.J. Stat. Ann. §               the instant offense are counted.” Moorer
2A:4A-43, 44.

                                               -4-
seizes upon the phrase “adult sentences”               convictions.
and asks us to follow the Fourth Circuit’s
                                                               Second, requiring adult sentencing
rule from United States v. Mason, 284
                                                       in addition to an adult conviction would
F.3d 555, 559 (4th Cir. 2002), that a
                                                       add a significant new element to criminal
conviction before age eighteen “counts
                                                       history calculations that is unstated in the
only if [the defendant] was both convicted
                                                       actual text of the Guidelines. Carrillo, 991
and sentenced as an adult” (emphasis in
                                                       F.2d at 594. The text of § 4A1.2(d)(1)
original).
                                                       encompasses all situations where “the
        We respectfully decline to follow              defendant was convicted as an adult” and
the Fourth Circuit’s view on this issue, as            received a sentence of requisite length. If
we agree with the Ninth Circuit that the               the Sentencing Guidelines Commission
phrase “adult sentences of imprisonment”               had wished to require both an adult
in Note 7 can naturally be read “to be a               conviction and an adult sentence for
shorthand reference to those defendants                criminal history purposes, it could have
who were ‘convicted as an adult and                    easily written § 4A1.2(d)(1) to reflect that
received a sentence of imprisonment.’”                 wish: i.e, “If the defendant were convicted
United States v. Carrillo, 991 F.2d 590,               and sentenced as an adult to a term of
593-94 (9th Cir. 1993) (quoting U.S.S.G.               imprisonment . . .” Based on these
§ 4A1.2(d)(1)); accord United States v.                reasons, we hold that an adult conviction
Pinion, 4 F.3d 941, 945 (11th Cir. 1993).              qualifies as a “prior felony conviction” for
We believe that Carrillo’s interpretation of           purposes of career offender status whether
Note 7 is preferable to Mason’s                        that conviction results in an “adult” or
interpretation for two reasons. First, and             “juvenile” sentence. Because Moorer does
most importantly, a “sentenced as an                   not contest that his 1990 conviction was an
adult” requirement in Note 7 would                     adult conviction, we find that it properly
directly conflict with Note 1. As discussed            counted toward his career offender status.
above, Note 1 dictates that the career
                                                              In closin g, w e note our
offender inquiry examine only whether the
                                                       disagreement with Moorer’s contention
conv ictions in question are adult
                                                       that his 1990 conviction resulted in a
convictions, and not what kind of
                                                       “juvenile sentence” because that sentence
sentences resulted from those convictions.
                                                       was served at Yardville Youth Reception
In light of this dictate, it would make little
                                                       Center, and because it was made to run
sense for Note 3 to then import a
                                                       concurrently with his remaining juvenile
contradictory instruction from § 4A1.2,
                                                       disposition. As the government points out,
which is the result under the rule in
                                                       New Jersey law makes it clear that once a
Mason. In contrast, taking Carrillo’s
                                                       juvenile is referred to an adult court, his
approach to Note 7 would harmonize it
                                                       entire case falls under the Code of
with Note 1 by placing the focus of the
                                                       Criminal Justice rather than the Code of
career offender inquiry on the nature of the
                                                       Juvenile Justice. N.J. Stat. Ann. § 2A:4A-

                                                 -5-
26; see also, e.g., State in Interest of A.B.,                      V. Conclusion
520 A.2d 783, 787 n.3 (N.J. Super. Ct.
                                                              After carefully considering the
App. Div. 1987). When such a referral
                                                       arguments discussed above, we affirm the
occurs, the juvenile’s case is treated in the
                                                       District Court’s sentencing judgment.4
adult court “in the same manner as if the
case had been instituted in that court in the
first instance.” N.J. Stat. Ann. § 2A:4A-
28. In this case, we have no reason to
believe that Moorer’s sentence was
anything other than an adult sentence.
Indeed, we have found no authority under
New Jersey law that would permit a judge
to impose a juvenile “sentence” based on
an adult conviction for a crime.3 This
stands in marked contrast to the West
Virginia law discussed in Mason, which
explicitly allows for a defendant under
eighteen to be sentenced under juvenile
delinquency law even after being
convicted under adult jurisdiction. 284
F.3d at 561 (citing State v. Highland, 327
S.E.2d 703, 706 (W. Va. 1985)). The fact
that Moorer was remanded to Yardville to
serve out the sentence for his 1990
conv iction actually undermines his
argument, because Yardville is a facility
that houses adults and is under the control
of the Department of Corrections rather
than the Department of Human Services .
In short, Moorer’s “juvenile sentence”
argument is unavailing both on legal                      4
                                                            Moorer submitted a pro se brief
principles and on the facts of this
                                                       arguing that under Blakely v.
particular case.
                                                       Washington, 124 S.Ct. 2531 (2004), a
                                                       jury should have determined whether he
                                                       was a career offender. We reject this
   3
     Under the New Jersey Code of                      argument, as Blakely governed only
Juvenile Justice, juveniles who are                    factual determinations, and Moorer’s
adjudicated delinquent are not sentenced               status as a career offender was purely a
but rather are subject to a “dispositional             matter of law under the Sentencing
hearing.” N.J. Stat. Ann. § 2A:4A-41.                  Guidelines.

                                                 -6-
