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United States v. Moore

United States Court of Appeals, Seventh Circuit

March 15, 2017

United States of America, Plaintiff-Appellee,
v.
NORVELL MOORE, Defendant-Appellant.

          Submitted December 7, 2016 [*]

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:10-cr-00896-l Charles P. Kocoras, Judge.

          Before POSNER, FLAUM, and ROVNER, Circuit Judges.

          ROVNER, Circuit Judge.

         Norvell Moore is before us for the third time, challenging the sentence he received following a retrial on two of the three offenses with which he was charged in connection with a 2010 carjacking. He was acquitted of both of those offenses, and then re-sentenced on a felon-in-possession conviction (see 18 U.S.C. § 922(g)(1)) that we affirmed in a prior appeal. See United States v. Moore, 763 F.3d 900, 914 (7th Cir. 2014) ("Moore I"). Unhappily for Moore, the district judge imposed the same sentence-240 months-that he had been given after the first trial, when he was convicted of both the felon-in-possession charge and a second weapons charge. Moore contends that the sentence is flawed for two reasons. First, he argues that because he was originally sentenced to a term of 120 months on the felon-in-possession conviction (to be served consecutively with an identical term on the companion firearm conviction), the district judge was obliged to impose the same term on that charge when he was re-sentenced. Second, although it is now clear that, as an armed career criminal, he was and is subject to a minimum term of 180 months on the felon-in-possession charge, the government waived any reliance on that enhanced minimum term by not pursuing it when he was originally sentenced. Beyond these two arguments, Moore pursues no challenge to the substantive reasonableness of the sentence imposed. We find neither of the arguments he does make to be meritorious and affirm the sentence.

         I.

         In 2010, Norvell Moore stole a BMW sedan from its driver after showing her that he was armed with a gun. He was captured by Chicago police after a high-speed chase during which he crashed the BMW into another vehicle. A federal grand jury charged him with carjacking, in violation of 18 U.S.C. § 2119; using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A); and possession of a firearm following a felony conviction, in violation of section 922(g)(1).

         Moore was first tried on these charges in 2013 before Judge Grady, but the jury was unable to reach a verdict on the carjacking charge. When jurors, at the conclusion of their first day of deliberations, informed the judge that they were not making progress and asked to be released for the day, Judge Grady asked them whether they had reached agreement as to any of the charges. When they responded that they had, the judge solicited a partial verdict and the jury returned verdicts of guilt on both the using-or-carrying charge and the felon-in-possession charge. Deliberations thereafter continued on the carjacking charge, but the jury was never able to achieve unanimity and the court ultimately declared a mistrial on that charge and, on the government's motion, dismissed it without prejudice.

         When he sentenced Moore on the using-and-carrying and felon-in-possession charges, Judge Grady concluded that a total sentence of 240 months was a reasonable sentence. The advisory range under the Sentencing Guidelines was 360 months to life. Judge Grady thought that a sentence of 360 months was excessive. Nonetheless, he believed a substantial sentence was warranted in light of Moore's criminal history. Moore had three prior convictions for robbery, among other offenses. In 2002, Moore and an accomplice had forced their way into a Burger King restaurant, where they assaulted an employee (who sustained injuries requiring medical attention) and compelled him to open a safe; the two made off with $5, 000. R. 123 at 9 ¶ 41. In 2004, Moore and two other individuals had robbed two female victims at gunpoint. R. 123 at 10 ¶ 43. And in 2007, Moore had pushed a female victim against a fence and snatched her purse. He subsequently resisted arrest and twice struck an arresting officer in the face. A handgun was recovered from his vehicle. R. 123 at 10 ¶ 44. Compounding the gravity of Moore's criminal history was the fact that despite the prison terms (ranging from three to eight years) to which he was sentenced for these crimes, he had continued to re-offend; indeed, Moore had committed the car theft at issue in this case shortly after being paroled on the last of these prior robbery convictions and while still wearing an electronic monitoring bracelet on his ankle. "This isn't really a matter of punishment, " Judge Grady observed. R. 156 at 38. "It's a matter of protecting the public from this defendant, who is a person who simply does not respect the law." R. 156 at 38. After hearing from the victim and Moore's sister and weighing the sentencing factors set forth in 18 U.S.C. § 3553, the judge concluded that a below-Guidelines sentence of 20 years, or 240 months, was sufficiently lengthy "to promote the objectives of specific and general deterrence and avoidance of inappropriate and unjustified sentencing disparities." R. 156 at 66. "Twenty years is a long time. It will give the defendant a long time to think about his attitude toward the rights of others ...." R. 156 at 66.

         When asked by the probation officer how the 240-month sentence should be allocated between the two convictions, Judge Grady ordered Moore to serve consecutive terms of 120 months on each. We should point out here that the parties and the court were laboring under the mistaken assumption that the statutory range of possible punishments on the felon-in-possession conviction was zero to 120 months. See R. 123 at 17 ¶ 82; R. 156 at 67-68. In fact, as we discuss below, Moore's criminal history of multiple convictions for armed robbery triggered an increase in the statutory sentencing range on that conviction: Moore was subject to a statutory minimum term of 180 months (15 years) and a maximum term of life. See 18 U.S.C. § 924(e)(1). The increased range remained overlooked until Moore was re-sentenced following a second trial on the carjacking and using-and-carrying charges.

         The re-trial was the result of a remand we ordered in Moore's first appeal. In that 2014 decision, we affirmed Moore's conviction on the felon-in-possession charge but vacated his conviction on the using-or carrying charge. Moore 7, 763 F.3d 900. Our decision to vacate the latter conviction was animated by a concern that the district judge had prematurely solicited a partial verdict from the jury when it had not yet declared that it was at an impasse as to the underlying crime of violence (carjacking) in relation to which Moore had allegedly used or carried a firearm. 763 F.3d at 912-14. We remanded the case to the district court for further proceedings consistent with our opinion. Id. at 914.

         On remand, the case was reassigned from Judge Grady (who had retired) to Judge Kocoras, and a grand jury issued a superseding indictment re-asserting the carjacking charge (which, as we have mentioned, had been dismissed without prejudice following the jury's inability to reach a verdict at the first trial) and the using-or-carrying charge, the conviction which we had vacated. Moore moved to dismiss the superseding indictment on double jeopardy grounds, but Judge Kocoras denied that motion, and we sustained his decision in a second appeal. United States v. Moore, 617 R App'x 562 (7th Cir. 2015) (per curiam) (non-precedential decision) ("Moore II").

         Moore was re-tried on both charges in 2015, and the jury acquitted him. Given the veil of secrecy that enshrouds jury deliberations, we cannot be sure why the jury decided to acquit Moore on these charges. What we can note is that one element of the carjacking charge was that Moore intended to cause serious bodily harm or death if the victim did not surrender the automobile to him. § 2119; see Holloway v. United States, 526 U.S. 1, 11-12, 119 S.Ct. 966, 972 (1999). This was a point that the defense vigorously contested. When he took the witness stand at the second trial, Moore testified that he had gone hunting for a car to steal and that he brought a loaded handgun with him in order to discourage resistance from his victim; he also conceded that he showed the gun to his victim in order to intimidate her. R. 276 at 42, 44, 53, 67, 74-75, 84. But he denied harboring any intent to kill or harm the victim in the event she did not cooperate. R. 276 at 40, 74, 86. And Moore specifically disputed the victim's testimony that he had pointed the gun at her head and threatened to kill her if she did not get out of the BMW. R. 276 at 45, 68-69, 71, 72. He told the jury he had simply shown the victim the gun and asked her to exit the car, which she eventually did. R. 276 at 41, 42, 84. Defense counsel in turn questioned the victim's credibility on this point and contended that the government had not proved, beyond a reasonable doubt, that Moore had intended to harm the victim. R. 277 at 12-18, 23-28. And if the government had not succeeded in proving that Moore was guilty of carjacking, counsel argued, neither had it proved that Moore was guilty of using or carrying a firearm during and in relation to the offense of carjacking. R. 277 at 29. Doubt about Moore's intent to harm the victim may explain the jury's decision to acquit him of both charges.

         Following the acquittals, it remained for Judge Kocoras to re-sentence Moore on the felon-in-possession conviction that we had affirmed in Moore I. For that purpose, the court directed the probation officer to prepare a supplemental presentence report ("PSR"). In connection with that PSR, the government submitted a supplemental version of the offense in which it asserted, for the first time, that Moore's three prior robbery convictions, because they were convictions for a violent crime, rendered him subject to a minimum prison term of 15 years and a maximum term of life on the felon-in-possession charge, pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. ยง 924(e)(1). R. 252 at 12-13. The probation officer agreed, and the PSR reflected that Moore was subject to an enhanced statutory ...


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