     Case: 08-10645     Document: 00511063073          Page: 1    Date Filed: 03/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 26, 2010

                                No. 08-10645 & 08-10198                Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
v.

KEVIN D. MOORE,

                                                   Defendant-Appellant.




                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:07-CR-125


Before DeMOSS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        This appeal raises two issues, the first of which pertains to our double-
jeopardy jurisprudence and American-Canadian relations—whether the United
States sufficiently controlled the Canadian prosecution of Defendant-Appellant
Kevin D. Moore such that the Double Jeopardy Clause barred his subsequent
prosecution in the United States for the same crimes. The other issue is w hether
our post-Booker sentencing decisions—affording more deference to Guideline
sentences than to non-Guideline sentences—amount to a de facto mandatory-

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                             08-10645 & 08-10198

sentencing regime in violation of the Sixth Amendment. The answer to both is
no. Therefore, we AFFIRM.
      The relevant facts are undisputed. On September 19, 2005, Canadian
authorities arrested Moore for attempting to enter Canada with child
pornography on his laptop. Moore pleaded guilty to Canadian charges of
possession and smuggling child pornography, for which he served a 133-day
sentence of imprisonment in Canadian custody. Upon his return to the United
States, federal authorities arrested and indicted him on the same charges. Moore
moved to dismiss the indictment on double-jeopardy grounds. He argued that
double jeopardy should apply because United States and Canadian authorities
cooperated in his prosecution by communicating and sharing reports and
evidence. The evidence included his laptop, which contained child pornography.
The district court denied the motion. At his trial, Moore’s Canadian guilty plea
was not introduced before the jury. The jury convicted Moore on both counts, and
the court sentenced him to 360 months of imprisonment followed by lifetime
supervised release. Moore timely filed a notice of appeal from the conviction and
sentence. He previously filed an interlocutory appeal from the denial of his
motion to dismiss on double-jeopardy grounds. We have consolidated the two
appeals.
      We first address the properly preserved double-jeopardy claim, which we
review de novo. See United States v. Villanueva, 408 F.3d 193, 200 (5th Cir.
2005). Moore recognizes that, under the dual-sovereignty doctrine, double
jeopardy does not attach when separate sovereigns prosecute offenses with
identical elements. Cf. Heath v. Alabama, 474 U.S. 82, 88 (1985). As a sovereign
nation, Canada qualifies as a sovereign for purposes of the doctrine. See
Villanueva, 408 F.3d at 201. Nonetheless, Moore urges the court to find that
double jeopardy applies because the Canadian prosecution was merely a sham,
or put differently, a mere tool controlled by the United States.

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       As an initial matter, it is unclear whether such an exception to the dual-
sovereignty doctrine exists in this circuit. This exception originated from
Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959), where the Supreme Court
suggested in dicta that there may be an exception to the dual-sovereignty
doctrine when one sovereign is “merely a tool” of the other in bringing a second
prosecution that is a “sham and a cover” for a prosecution that would otherwise
be barred under the Double Jeopardy Clause. We have not formally recognized
or applied the exception; when confronted with the issue, we have held that,
even if the exception exists, the facts do not merit its application. See United
States v. Angleton, 314 F.3d 767, 773-74 (5th Cir. 2002) (citing United States v.
Patterson, 809 F.2d 244, 247 n.2 (5th Cir. 1987)).1 This case does not warrant a
different approach.
       We have emphasized that the essential element of the Bartkus “tool” test
is a high level of control: one sovereign must (1) have the ability to control the
prosecution of the other and (2) it must exert this control to “essentially
manipulate[] another sovereign into prosecuting.” See United States v. Angleton,
314 F.3d 767, 774 (5th Cir. 2002) (citations and internal quotation marks
omitted); see also Villanueva, 408 F.3d at 201 (“Although United States officials
assisted the Mexican government, defendants-appellants presented no evidence
that the United States had any ability to control the prosecution, so they have
failed to prove that the Mexican prosecution was a sham.”). Consistent with this
approach, a recent decision of the First Circuit emphasized that the “Bartkus
exception is ‘narrow[ly] . . . limited to situations in which one sovereign so
thoroughly dominates or manipulates the prosecutorial machinery of another



       1
         Angleton further observed, “Indeed, the close interaction between federal and state
authorities in Bartkus, which included the federal prosecutor’s decision to ‘instigate and guide’
the successive state prosecution, suggests that the sham exception exists, if at all, only in the
rarest of circumstances.” 314 F.3d at 774 (citation omitted).

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that the latter retains little or no volition in its own proceedings.’” United States
v. Dowdell, —F.3d—, 2010 WL 481416, at *11 (1st Cir. Feb. 12, 2010) (citation
omitted) (alterations in original). Accordingly, to prevail, Moore must establish
a prima facie case that Canada was a mere tool of the United States. Villanueva,
408 F.3d at 201 (citation omitted). He has not come close to satisfying this
standard.
      Moore has set forth no evidence, and indeed, has not even alleged that the
United States “essentially manipulated” Canada into prosecuting him. Nor has
he shown or even alleged that the United States so thoroughly dominated or
manipulated the Canadian prosecutorial machinery that the Canadian
authorities retained little or no volition in their prosecution. Instead, he alleges
the following facts to establish collusion: (1) agents of the United States
Immigration and Customs Enforcement (ICE) at the Ottawa Attache’s office
opened a file on Moore on September 20, 2005, the day after the Canadian
authorities arrested him; (2) information regarding Moore’s arrest was sent to
the ICE office in Dallas on September 20, 2005; (3) at ICE’s request, the
Canadian authorities kept ICE informed about the prosecution and forwarded
the seized evidence; and (4) the Canadian authorities gave ICE the seized laptop,
which contained the child pornography, despite an alleged assurance to Moore
that they would delete all of the data on the laptop after he pleaded guilty to the
Canadian charges.
      At most, this establishes close cooperation between the Canadian and
United States authorities. In fact, in his brief to this court, Moore alleges
nothing more than a “high level of cooperation between the Canadian authorities
and United States law enforcement agencies, which when aggregated, amounts
to collusion sufficient to justify finding a sham prosecution.” However, a high
level of cooperation between two sovereigns does not satisfy the “mere[] tool”
test. Bartkus, 359 U.S. at 122-24 (finding no exception where the federal

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prosecutor instigated and guided the successive state prosecution); United States
v. Rashed, 234 F.3d 1280, 1284 (D.C. Cir. 2000) (“Bartkus acknowledges that
extensive law enforcement and prosecutorial cooperation between two sovereigns
does not make a trial by either a sham.” (emphasis added)); United States v.
Tirrell, 120 F.3d 670, 677 (7th Cir. 1997) (“Even significant cooperation between
federal and state agencies is not enough to make the second prosecution a
sham.” (citations and internal quotation marks omitted) (emphasis added));
United States v. Figueroa-Soto, 938 F.2d 1015, 1020 (9th Cir. 1991) (“As Bartkus
makes plain, there may be very close coordination in the prosecutions, in the
employment of agents of one sovereign to help the other sovereign in its
prosecution, and in the timing of the court proceedings so that the maximum
assistance is mutually rendered by the sovereigns.” (emphasis added)). In sum,
even if the Bartkus exception exists in this circuit, Moore has not established
that it applies here because neither his allegations nor the evidence suggest that
Canada was a “mere[] tool” of the United States. Bartkus, 359 U.S. at 123.
      Finally, Moore argues that our post-Booker holdings, which apply a more
deferential standard of review to a Guideline sentence than to a non-Guideline
sentence, have created a de facto mandatory-sentencing regime in violation of
the Sixth Amendment. We review this properly preserved claim de novo. United
States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000). This argument is foreclosed
for at least two reasons. First, Moore complains about decisions that are binding
on this court, see, e.g., United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006),
and one panel of this circuit cannot overrule the decision of a prior panel, FDIC
v. Dawson, 4 F.3d 1303, 1307 (5th Cir. 1993). Second, Rita v. United States, 551
U.S. 338, 347, 353 (2007), forecloses Moore’s argument that the presumption of
reasonableness for Guideline sentences violates the Sixth Amendment.
      AFFIRMED.



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