                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-9-2009

USA v. Janis Moore
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2297




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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 08-2297
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                  JANIS P. MOORE,

                                       Appellant
                                   _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D.C. No. 03-cr-00322-002)
                     District Judge: Honorable Legrome D. Davis
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 6, 2009

              Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.

                               (Filed February 09, 2009)
                                   _______________

                              OPINION OF THE COURT
                                  _______________




_______________
        *Honorable Alan D. Lourie, Circuit Judge of the United States Court of Appeals
for the Federal Circuit sitting by designation.
LOURIE, Circuit Judge.

       Janis Moore appeals from the decision of the U.S. District Court for the Eastern

District of Pennsylvania sentencing her to nine months imprisonment for violation of the

terms of her supervised release. We conclude that the District Court did not abuse its

discretion in its sentencing decision, and we will therefore affirm.

I.     Discussion

       In April of 2005, Moore was sentenced to thirty months imprisonment after

pleading guilty to multiple counts of mail fraud. As part of her sentence, Moore was

required to pay $130,000 in restitution, at a rate of $150 per month. Upon her release

from prison in January 2007, Moore was placed under supervised release for a period of

three years. As a condition of her supervised release, the District Court forbade Moore

from opening any new credit accounts or using certain disbursements of income (such as

from tax refunds) without the permission of her probation officer. Moore violated the

terms of her supervised release when she acquired various credit cards and made

purchases using those cards as well as the proceeds of her 2006 tax refund without

obtaining the permission of her parole officer.

       On April 16, 2008, the District Court held a revocation hearing and imposed a

sentence of nine months for the supervised release violation. The nine-month sentence

was the maximum sentence envisioned by the Sentencing Guidelines, and was five-

months longer than the sentence recommended by the government. On appeal, Moore



                                              2
claims that her sentence is unreasonable, and asks us to vacate the sentence and remand

the matter for a new sentencing hearing.

         Moore makes two arguments supporting her request for us to vacate her sentence.

First, she alleges that the District Court failed to adequately consider the sentencing

factors in 18 U.S.C. § 3553(a), as required by 18 U.S.C. § 3582(e)(3). Second, she

alleges that the nine-month sentence was, in reality, an effort on the part of the District

Court to punish her further for her underlying conviction, rather than for her breach of

trust.

         We review the reasonableness of a district court’s sentence for abuse of discretion.

Gall v. United States, 128 S. Ct. 586, 594 (2007). Moore, as the party challenging the

sentence bears the burden of proving unreasonableness. See United States v. Lessner, 498

F.3d 185, 204-05 (3d Cir. 2007) (citation omitted).

         We first address Moore’s contention that the District Court erred in failing to

consider the relevant sentencing factors. Moore acknowledges the fact that the District

Court considered the Sentencing Guidelines (one of the statutory factors), but claims that

the Court “barely took into account” the remaining six factors. Appellant’s Br. at 16. We

disagree with Moore that the Court failed to consider the sentencing factors. In

sentencing decisions, courts are not required to make findings as to each factor if the

record makes clear that the court took the factors into consideration. United States v.

Lessner, 498 F.3d 185, 203 (3d Cir. 2007) (citation omitted). In this case, the record of



                                               3
the sentencing proceedings makes clear that the District Court did in fact take the factors

into consideration. For example, in issuing the sentence, the Court emphasized the first

sentencing factor, the nature and circumstances of the offense, as a basis for its

sentencing decision. See e.g. App. 52A (stating that the nine-month incarceration would

prevent her from “ignoring and disregarding what the Probation officer has told you that

you can’t do”). Similarly, the Court, in recognizing that its sentence was greater than that

recommended by the government, stated that granting a “lesser sentence would diminish

the seriousness of [the] offenses.” That statement demonstrates that the Court considered

the need for the imposed sentence, which is the second of the sentencing factors. See 18

U.S.C. § 3553 (2006). Furthermore, it is apparent that the Court took into account the

types of sentences available, but found incarceration to be the appropriate one. Thus,

Moore has not shown that the Court failed to properly consider the sentencing factors.

       Lastly, we address Moore’s contention that the District Court improperly

resentenced her for her underlying conviction, not for the violation of supervised release.

In support of her position that the court’s sentence was based on her underlying

conviction, Moore points to the fact that the nine-month sentence was the maximum

sentence recommended by the Guidelines and more than double the four-month sentence

recommended by the government. We find that evidence unconvincing. The District

Court is not bound by the sentence recommended by the government. Furthermore, it can

scarcely be argued that a court abuses its discretion simply by adopting the high end of



                                              4
the Sentencing Guidelines. The Court here reviewed the relevant factors and concluded

that the high end of the Guidelines was appropriate in light of Moore’s violation of her

supervised release. We therefore conclude that the court did not improperly sentence

Moore based on her original conviction.

II.    Conclusion

       For the foregoing reasons, we will affirm the District Court’s nine-month sentence.




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