                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4062




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"USA v. Moore" (2008). 2008 Decisions. Paper 89.
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                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 07-4062
                      ____________

            UNITED STATES OF AMERICA

                            v.

            DARNELL DEVERLYN MOORE

                       Darnell Moore,

                            Appellant
                      ____________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                (D.C. No. 1 : 07-cr-00131-2)
        District Judge: Honorable Sylvia H. Rambo
                       ____________

        Submitted Under Third Circuit LAR 34.1(a)
                   November 20, 3008

Before: FUENTES, HARDIMAN and GARTH, Circuit Judges.

               (Filed: December 17, 2008)

                      ____________

               OPINION OF THE COURT
                    ____________
HARDIMAN, Circuit Judge.

       Darnell Moore appeals the judgment of the District Court imposing a mandatory

ten-year sentence under 18 U.S.C. § 924(c)(1)(A)(iii). We will affirm.

                                               I.

       Because we write exclusively for the parties, we will discuss the facts and

procedural history of the case only briefly.

       Moore pleaded guilty to the use of a weapon during a crime of violence, an armed

bank robbery, which carries a five-year mandatory minimum sentence and a maximum

sentence of life imprisonment. 18 U.S.C. § 924(c)(1)(A)(i). As part of his guilty plea,

Moore reserved the right to challenge the Government’s claim that he was subject to a

ten-year mandatory minimum under 18 U.S.C. § 924(c)(1)(A)(iii) because it was

reasonably foreseeable that his co-conspirator would discharge a firearm during the armed

robbery.

       The District Court conducted an evidentiary hearing and found as a matter of fact

that Moore could have reasonably foreseen the use of a firearm by his co-conspirator

during the robbery. Moore argues that the District Court erred because he was unaware

that his co-conspirator was armed or intended to discharge a firearm during the robbery.

                                               II.

       It is well established that a criminal defendant is liable for the reasonably

foreseeable actions of his co-conspirators. Pinkerton v. United States, 328 U.S. 640, 647-



                                               2
48 (1946); United States v. Ramos, 147 F.3d 281, 286 (3d Cir. 1998) (applying Pinkerton

liability in the context of 18 U.S.C. § 924(c)). The Supreme Court has held that the

statutory enhancements under § 924(c)(1) are sentencing factors which the Government

must prove by a preponderance of the evidence. Harris v. United States, 536 U.S. 545

(2002). We review the District Court’s factual findings related to sentencing for clear

error. United States v. Grier, 475 F.3d 556, 568-70 (3d Cir. 2007) (en banc).

       Here, the District Court made three findings of fact in support of its legal

conclusion that the use of a firearm was foreseeable: (1) Moore knew his co-conspirator

always carried a firearm; (2) Moore saw his co-conspirator with a magazine for the

firearm; and (3) Moore acknowledged that he could not physically handle the firearm.

Dist. Ct. Op. at 13. Moore objects to these findings, claiming that he did not have

specific knowledge that his co-conspirator was carrying a firearm on that particular day

and that the facts were unclear as to whether he saw the magazine before or after the

robbery.

       Our review of the record leads us to conclude that there is ample support for the

District Court’s factual findings. Moreover, Moore’s admission that his co-conspirator

“always carried a gun” is sufficient to show Moore could have foreseen that a firearm

would be used, brandished or discharged during the robbery, even if Moore did not have

actual knowledge that his co-conspirator had a firearm on that specific day. See United

States v. Dixon, 982 F.2d 116, 120 (3d Cir. 1992).



                                              3
       Additionally, Moore’s assertion that the District Court incorrectly credited the FBI

officer’s testimony regarding his viewing of the magazine is unavailing. During

questioning about the events surrounding the robbery, Moore admitted to seeing the

magazine. Moore now asserts that this statement is an insufficient admission because the

statement does not specify that he saw the magazine before the robbery. Moore made this

statement when he was asked if he knew his co-conspirator had ammunition for the gun

and Moore replied that he had seen a loaded magazine. We find that the context in which

this statement was elicited was sufficient for the District Court to credit it as evidence that

Moore saw the magazine before the robbery took place, even though that specific

language was not used.

       Finally, Moore’s comment that he did not commit the bank robbery because he

injured his hand and could not carry a firearm is further evidence that the use of a firearm

by one of his co-conspirators was foreseeable.

       Having upheld these factual findings, it follows a fortiori that the District Court’s

legal conclusion regarding foreseeability was not clearly erroneous. Therefore, we hold

that the ten-year mandatory minimum of 18 U.S.C. § 924(c)(1)(A)(iii) was properly

applied to Moore.

                                             III.

       Moore also challenges the reasonableness of his sentence. This argument is a non-

starter in light of our holding that the ten-year mandatory minimum applies to Moore.



                                              4
Title 18, § 3553(e) gives the District Court limited authority to impose a sentence below

the statutory minimum if the government files a motion that sets out a defendant’s

substantial assistance in the investigation or prosecution of another person who has

committed an offense. No such motion was filed in the case. Thus, having imposed the

mandatory minimum required by statute, the District Court had no authority to review the

sentence for reasonableness. See, e.g., United States v. Tannis, 942 F.2d 196, 198 (3d

Cir. 1991) (holding that the district court had no authority to review a mandatory

minimum sentence under 18 U.S.C. § 3742). Because no motion was filed by the

Government and because the mandatory minimum was imposed, we find Moore’s

sentence reasonable.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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