United States Court of Appeals

Fifth Circuit

FILED

June 8, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-31051

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NOAH MOORE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:

I

On September 11, 2003, a Federal Grand Jury indicted Noah

Moore on a single count of conspiring to distribute more than 100

grams of heroin. Moore was then serving a sentence for a 1993

federal narcotics conviction. 

On January 29, 2004, Moore moved to suppress recordings of his

telephone conversations, which had been monitored and recorded by

the Bureau of Prisons during his imprisonment and which the

government intended to introduce at trial. The district court

denied the motion, finding that Moore had consented to being

recorded. Moore also moved to dismiss the indictment, alleging
2

that the government destroyed recordings of exculpatory

conversations. The district court denied that motion as well,

finding that the allegedly exculpatory information was not material

and that the government did not act in bad faith. 

At trial, the government offered evidence that in 1993 Moore

began serving a 295-month sentence in federal prison for cocaine

distribution. Hillary Williams, a resident of New Orleans, began

visiting Moore shortly after Moore’s incarceration, at which time

Moore introduced Williams to a Nigerian inmate, Tunde Ademuiiwa.

Moore told Williams that Tunde assisted Moore with his appeal and

told Tunde that Williams would help pay for Tunde’s legal services.

In New Orleans, Williams began collecting money from Moore’s

friends, ostensibly to pay for Tunde’s legal services. Eventually,

Tunde, who had been released from prison and deported to Nigeria,

began calling Williams at home, asking for money. Tunde told

Williams that Moore owed him $50,000.00. In August 2002, Williams

visited Moore in prison. Moore explained that Tunde was a Nigerian

heroin dealer, that Moore’s mother and sister stole $50,000.00,

that Moore owed Tunde for past heroin sales, and that Moore was

counting on Williams to help him pay it back. Moore informed

Williams that he had ordered more heroin from Tunde and that it

would be shipped to Williams hidden inside African art books.

Between December 2002 and January 2003, Tunde sent Williams three

African art books concealing heroin, and Williams wired $10,000.00
1 There were also 78 tapes of recorded phone calls between Moore and

Williams, all of which were recycled. Only these 78 tapes are the subject of the

alleged Jencks Act violation (see infra issue III), whereas all of the lost

tapes, approximately 344, are the subject of the alleged Brady violation (see

infra issue II). 

3

to Tunde. To settle the remainder of the debt, Williams planned to

buy more heroin from Tunde and to sell it through his friend

“Chris.” Unbeknownst to Williams, “Chris” was a confidential

informant for the DEA. After receiving information from “Chris,”

the DEA approached Williams about his involvement in the drug

conspiracy, and Williams cooperated. Williams explained the heroin

importation scheme, put undercover DEA agents in contact with Tunde

and his Nigerian suppliers, and ultimately testified at trial. 

In addition to Williams’s testimony about the conspiracy, the

government introduced recordings of conversations between Moore and

Tunde over the prison telephone. Of 282 tapes, 16 were retained by

the government, while the others were recycled.1 In these calls,

Moore and Tunde, spoke in coded language. For example, on July 16,

2000, Moore and Tunde spoke about a “pizza” that costs “about two.”

They also talked about having to “put together transportation” and

having to buy a “Visa.” On December 22, 2000, Tunde told Moore the

“dude” wanted Moore to “get somebody, find somebody that I can call

that will respond anytime I say call me...because I’m wanting to

schedule some things.” Tunde advised Moore that the “dude” wanted

payment for “flight tickets” in advance. Tunde said “in the middle

of January we are on. It’s gonna be 50/50 whatever I got...
4

everything’s OK it’s going to be between two and two-five.” In

another cryptic call on June 19, 2001, Tunde told Moore “I can only

get about 400 tribes right now, OK,” but “within the next two weeks

I can get about 800.” Tunde explained “I gotta go to the...to

other countries that have different tribes to so [sic] if we get

these clothes from every tribe.” On June 12, 2002, Moore told

Tunde that he sent a check but “just was able to send two.” Moore

said, “I will probably have the pictures for you this week....”

Tunde responded, “I need those pictures.” Moore testified at trial

that these conversations were about his post-conviction petitions.

Specifically, Moore claimed that he and Tunde were talking about

raising $25,000.00 to hire habeas attorney Linda Sheffield, that

Moore enlisted friends and family to contribute to the legal fee,

and that Moore sent Sheffield’s contract to Tunde in Nigeria for

Tunde’s review. Moore also contended that many of the references

were to business deals he and Tunde were planning, such as

importing t-shirts and diamonds. The government argued that these

calls, and the cryptic references to “clothes,” “tribes,” “pizza,”

“flight tickets,” and “pictures,” were really related to heroin and

payments for heroin. Moreover, a convicted felon, involved in a

separate plan to import and distribute cocaine, corroborated that

he and Moore discussed heroin, using code words like “clothes,”

“fruit,” or “tennis shoes.” The government did not dispute that

Moore sometimes talked with Tunde and others about his habeas case,
2 18 U.S.C. §§ 2510-2522. The FWA is formally known as Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic

Communications Privacy Act of 1986 and the Communications Assistance for Law

Enforcement Act of 1994. See Quigley v. Rosenthal, 327 F.3d 1044, 1047 n.1 (10th

Cir. 2003).

3 See United States v. Hunt, 253 F.3d 227, 229-230 (5th Cir. 2001).

4 18 U.S.C. § 2515. Section 2515, prohibition of use as evidence of

intercepted wire or oral communications, reads, in its entirety: 

5

but argued that Moore was trying to raise money for a habeas lawyer

by selling drugs.

The jury found Moore guilty as charged, and the district court

sentenced Moore to a prison term of 200 months, to run consecutive

to Moore’s 1993 federal sentence, and also to an eight-year term of

supervised release. He appeals on six grounds.

II

Moore argues that the district court erred by denying his

motion to suppress telephone conversations recorded by the BOP. In

addition to his consent to the recordings, Moore contends that the

government must also satisfy a second exception to the Federal

Wiretap Act2—the tapes must also have been collected in the

ordinary course of law enforcement. We review factual findings of

a ruling on a motion to suppress for clear error and legal

conclusions de novo.

3

Section 2515 of the FWA prohibits the use as evidence of

intercepted communications “if the disclosure of that information

would be in violation of this chapter.”4 The FWA contains numerous
Whenever any wire or oral communication has been intercepted, no

part of the contents of such communication and no evidence derived

therefrom may be received in evidence in any trial, hearing, or

other proceeding in or before any court, grand jury, department,

officer, agency, regulatory body, legislative committee, or other

authority of the United States, a State, or a political subdivision

thereof if the disclosure of that information would be in violation

of this chapter [18 USCS §§ 2510 et seq.].

Id.

5 18 U.S.C. § 2511(2)(c); see also id. at (d).

6 18 U.S.C. § 2510(5)(a)(iii) (referred to as the “law enforcement”

exception).

7 18 U.S.C. § 2511(2)(a)(ii).

6

exceptions to the requirement of court-ordered authorization. The

FWA provides that “[i]t shall not be unlawful under this

chapter...for a person acting under color of law to intercept a

wire, oral, or electronic communication, where such person is a

party to the communication or one of the parties to the

communication has given prior consent to such interception.”5 The

FWA also makes an exception for any “electronic, mechanical, or

other device...which can be used to intercept a wire, oral, or

electronic communication” used “by an investigative or law

enforcement officer in the ordinary course of his duties.”6

Moore argues that the government must satisfy both

exceptions—it must have the consent of a party to the conversations

and they must have been recorded in the ordinary course of law

enforcement. Moore points to provisions in which Congress

expressly insulated the government from § 2515's broad prohibition

against unlawful disclosure: “Notwithstanding any other law...;”7
8 18 U.S.C. § 2511(2)(e).

9 18 U.S.C. § 2511(2)(f).

10 586 F.2d 508, 513 (5th Cir. 1978) (“Furthermore, 18 U.S.C. § 2511(d)

exempts from the operation of the entire chapter, of which section 2518 is a

part, consensual recordings such as made here.”); see also United States v.

Mendoza, 574 F.2d 1373, 1377 (5th Cir. 1978) (stating that “18 U.S.C. §

2511(2)(c) provides that such consent renders lawful the interception of a wire

or oral communication”).

11 In re High Fructose Corn Syrup Antitrust Litig., 216 F.3d 621, 625 (7th

Cir. 2000) (stating that “[t]o subject interceptions made lawful by sections

2511(2) (c) and (d) to section 2517(3) would have absurd consequences”); United

States v. Hammond, 286 F.3d 189, 191-192 (4th Cir. 2002) (stating “the tapes were

properly used by the FBI only if (1) the initial interception by the BOP was

lawful pursuant to an exception to the general injunction prohibiting use of

wiretaps,” thus proceeding to analyze the issue as if any exception would suffice

(emphasis added)); Unites States v. Amen, 831 F.2d 373, 378 n.1 (2d Cir. 1987)

(affirming the district court’s ruling on alternative grounds—consent—while

casting doubt on the applicability of the law enforcement exception on which the

trial court relied); United States v. Horr, 963 F.2d 1124, 1126 (10th Cir. 1992)

(explicitly relying on the consent exception to affirm the district court which

instead relied on the law enforcement exception).

7

“Notwithstanding any other provisions of this title...;”8 and

“Nothing contained in this chapter....”9 Absent this express

intention, Moore argues that the government must satisfy both

exceptions because neither excludes the applicability of other

sections. The district court found that consent alone suffices to

support admission. We agree.

The government cites United States v. Head, which recognizes

the exemption for consensual recordings but does not explicitly

address the unnecessary exercise of satisfying additional

criteria.10 The Second, Fourth, Seventh, and Tenth circuits have

all expressly or impliedly found one exception sufficient to

warrant admissibility.11 Moore’s analysis is strained, and he
12 United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996) (finding both

exceptions applicable and, therefore, not deciding if one would suffice).

13 As the district court found, the BOP sufficiently notified Moore that

all of his phone calls were subject to surveillance and recording. The following

warning is posted at all prison phones: “Notice: The bureau of Prisons to

Inmates. Telephone Regulations. All conversations on this phone are subject to

monitoring. Your use of this telephone constitutes consent to this monitoring.

You must contact the unit team to request an unmonitored attorney call.” 

14 373 U.S. 83 (1963).

15 The government possessed the tapes, though they were housed at the BOP,

since the BOP acted as its investigatory agent. See United States v. Ramirez,

174 F.3d 584, 588 (5th Cir. 1999) (“There is no doubt that the Bureau of Prisons

was part of the investigative team regarding this transaction. The tapes were

in the possession of the Bureau of Prisons until they were taped over, and

therefore they were in the ‘possession of the United States’....”).”

16 United States v. Green, 46 F.3d 461, 464 (5th Cir. 1995).

8

unpersuasively relies on an inapposite Ninth Circuit decision.12

We are persuaded that the disputed provisions of the FWA are each

exceptions under which the recorded material may be admitted. In

short, consent alone suffices to admit Moore’s recorded

conversations, and he does not contest that he consented to the

recording.13 The district court did not err by denying Moore’s

motion to suppress the tapes.

III

Moore reasserts a violation of Brady v. Maryland14, pointing

to the government’s failure to preserve 344 tape recordings of

conversations between himself and Williams or Tunde.15 We review

de novo claims of Brady violations.16

Brady requires the government to disclose to criminal
17 Brady, 373 U.S. 83; United States v. Agurs, 427 U.S. 97 (1976).

18 California v. Trombetta, 467 U.S. 479, 489 (1984).

19 United States v. Bagley, 473 U.S. 667, 682 (1985).

20 Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988) (The government

tested the cocaine four times prior to its destruction–each test confirming the

substance as cocaine.).

21 Illinois v. Fisher, 540 U.S. 544 (2004).

9

defendants favorable evidence, material to guilt or punishment.17

Materiality requires “an exculpatory value that was apparent before

the evidence was destroyed” and that was “of such a nature that the

defendant would be unable to obtain comparable evidence by other

reasonably available means.”18 Moreover, “evidence is material only

if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.”19 Absent a

showing of bad faith, failure to preserve potentially useful

evidence does not constitute a denial of due process.20 In sum,

impermissibly withheld evidence must be either (1) material and

exculpatory or (2) only potentially useful, in combination with a

showing of bad faith on the part of the government.21 The district

court appropriately denied Moore’s motion to dismiss on two

grounds, failure to show that the lost evidence was exculpatory and

failure to establish bad faith. On appeal, Moore does not

describe a single exculpatory fact that might have emerged from the

lost tapes, despite participating in each recorded conversation.
22

First, materiality does not require the defendant to

demonstrate by a preponderance of the evidence that omitted

evidence would have resulted in acquittal. Second, he need not

weigh the withheld evidence against the disclosed evidence to

show he would have been acquitted by the resulting totality.

Third, if evidence is found material, there is no need to

conduct a harmless error analysis. Fourth, the withheld

evidence should be considered as a whole, not item-by-item.

The sum of these four guideposts means that to show a due

process violation when the state withholds evidence, a

defendant need not prove that his trial necessarily would have

had a different outcome; a lack of faith in the result is

sufficient. 

DiLosa v. Cain, 279 F.3d 259, 263 (5th Cir. 2002) (internal citation omitted).

23 “It is a troubling prospect if government officials can routinely

destroy drugs, then argue that the drugs had no exculpatory value because the

government officials ‘knew’ that the drugs were indeed drugs.” United States v.

Belcher, 762 F.Supp. 666, 672 (W.D.Va. 1991) (“Belcher I”) (finding a

constitutional violation involving material exculpatory evidence where no one had

ever tested the plant in order to determine if it was in fact marijuana before

its destruction); United States v. Belcher, 769 F.Supp. 201 (W.D.Va. 1991)

(“Belcher II”). The tapes were recycled prior to any knowledge that they would

be used to prosecute Moore. 

24 At trial, Moore submitted two allegedly exculpatory uses for the tapes.

The district court concluded that Moore’s “own description of the claimed

evidence would prove only uncontested facts.” First, Moore claimed calls existed

which would reveal that he had not spoken to Williams in more than a year;

Williams testified to this very fact. Second, Moore contends that the

government, which argued that he often used his habeas petition as code to

conduct the conspiracy, deprived him of conversations detailing his legitimate

efforts to file a habeas petition, yet Moore’s attorney testified about his

10

Rather, Moore generally argues that the necessary showing of

materiality need not be overly burdensome.22 He then relies on

conclusory allegations in order to construct a constitutional

deprivation—the inability to contextualize the government’s

excerpts, the inability to effectively cross-examine the

government’s witness, and the need to avoid a perception of

malfeasance.23 These vague assertions do not establish any

exculpatory evidence, let alone a reasonable probability that such

evidence affected the outcome of the trial.24
efforts to file a habeas petition. Therefore, these reasons fail to establish

a reasonable probability that the outcome would have differed because Moore

presented this evidence by alternative means. 

25 See Youngblood, 488 U.S. 51.

26 The district court found that Moore failed to establish that the

recordings were destroyed for a reason “other than pursuant to the Bureau of

Prisons’ regular and routine procedures.”

11

Moore also fails to successfully traverse the second avenue

for demonstrating a Brady violation. With respect to potentially

useful evidence, the lost tapes parallel the cocaine in

Youngblood,

25 which was destroyed pursuant to standard procedure

and, thus, did not constitute a constitutional violation.

Similarly, the BOP recycled all of the tapes after 180 days, as per

the BOP’s policy.26 As such, the BOP did not destroy the tapes in

bad faith. Moore’s argument that bad faith can be inferred from

the fact that only excerpts containing inculpatory evidence

survived and that retaining all of the tapes would not have been

unduly burdensome altogether fails to prove bad faith. The

district court did not err in concluding that Moore failed to

demonstrate any material exculpatory evidence contained on the

recycled tapes and failed to demonstrate that the government acted

in bad faith in destroying potentially exculpatory evidence. 

IV

Moore reasserts that the government’s failure to provide the

recordings of 78 conversations between himself and Williams
27 The government did not preserve any of the 78 recordings of telephone

conversations between the government witness and Moore. 

28 18 U.S.C. § 3500(b); FED.R.CRIM.P. 26.2.

29 Ramirez, 174 F.3d at 587 (quoting 18 U.S.C. § 3500).

30 Id. at 589.

31 Id.

32 Id. at 587 (citing United States v. Martinez, 151 F.3d 384, 391 (5th

Cir. 1998)). “In the context of the Jencks Act, we must strictly apply the

harmless error analysis review and determine whether the error itself had a

substantial influence on the judgment in addition to determining whether there

was sufficient evidence to support the conviction.” Id. (citing United States

v. Keller, 14 F.3d 1051, 1054-55 (5th Cir. 1994)). 

12

violated the Jencks Act,27 which requires the government to produce

any “statements made by a witness concerning the subject matter on

which the witness has testified that are in the possession of the

government after the witness testified on direct examination in a

criminal trial....”28 “The definition of ‘statement[s]’ includes

‘a...recording...which is a substantially verbatim recital of an

oral statement made by said witness and recorded contemporaneously

with the making of such oral statement.’”29

Jencks Act sanctions should be imposed in cases of bad faith

and negligent suppression of evidence but not in the case of good

faith loss by the government.30 This Court has instructed the

district courts to “weigh the degree of negligence or bad faith

involved, the importance of the evidence lost, and the evidence of

guilt adduced at trial in order to come to a determination that

will serve the ends of justice.”31 Even when a violation exists,

we apply harmless-error analysis.32 “The clearly erroneous standard
33 United States v. Cathey, 591 F.2d 268, 274 (5th Cir. 1979).

34 But cf. Ramirez, 174 F.3d at 589 (“We also find unpersuasive the

government's arguments that it is excused because the tapes containing the lost

calls were destroyed before Mrs. Ramirez's indictment. Even so, the tapes were

certainly available during the investigation of Ramirez therefore allowing the

government to preserve only the conversations it believed were favorable to the

prosecution.”). 

35 United States v. Wilson, 322 F.3d 353, 359 (5th Cir. 2003).

13

of review applies to district court determinations of what material

must be produced under the Jencks Act.”33

As discussed supra III, the district court did not err in

finding an absence of bad faith. Similarly, the BOP’s actions did

not amount to negligence, as the tapes were recycled pursuant to

policy before the DEA began to investigate Moore.34 Moreover, Moore

has not identified any useful information in the conversations,

despite having participated in each. The district court did not

clearly err in denying relief, pursuant to the Jencks Act.

V

Moore contends that the district court erred by admitting

evidence concerning a heroin transaction, in which Moore was not

involved and which occurred outside the scope and time-frame of the

charged conspiracy. We review a district court’s evidentiary

rulings for abuse of discretion35 and are persuaded that the

district court did not abuse its discretion in allowing the

government to offer corroborative evidence of a heroin sale from a

source in Africa in order to support a witness’ challenged
36 Since Williams’s packages were not recovered, the government introduced

the shipping documents. 

14

testimony that he had knowingly accepted heroin from that source.

On direct examination, Williams testified that, at Moore’s

request, he accepted delivery of three African art books from

Contonou, Benin, the books containing packages of heroin.36 On

cross, Moore challenged this testimony, suggesting that the

government coached Williams and that Williams did not actually know

about the contents of the books. Corroborating Williams’s

testimony, a DEA agent described the similarities of the three

packages Williams received. Each had been addressed to a

Professor, bore the same return address, and was shipped via DHL.

The DEA agent testified that DHL notified him about a fourth

package, similar in weight to the other three and bearing the same

return address. The package contained an African art book with

heroin hidden inside the front and back covers. The DEA agent

explained that with Williams’s cooperation he ordered two more

heroin shipments. Both arrived from Benin inside African art

books. The government proffered this justification for the

testimony: “[the illicit materials] even if intended for someone

outside the conspiracy, corroborates that Hillary Williams did

receive an African Art book containing 150 grams in the cover from

exactly the same return address [on] it.” Moore does not contest

the relevance of this testimony, though he objected to potential

confusion in the inclusion of this uncharged quantity of heroin.
37 See FED.R.EVID. 403.

38 Relevant evidence need only make the existence of a material fact “more

probable or less probable than it would be without the evidence.” FED.R.EVID.

401. The government argues that this evidence is also relevant to an e-mail from

Tunde to Williams in which the two discussed the use of a courier rather than

mail. 

39 The district court warned the jury, stating that the government offered

the additional drug sales “in connection with [the government’s] arguments

relative to the credibility of Hillary Williams.” Also, “...what the

government’s alleging is that these last exhibits are used to bolster, according

to the government, its witness’ credibility, because you have to make that

decision, the government doesn’t make that, it’s just their judgment and that the

amount of substance which you heard testimony is heroin in that particular

exhibit, I think it’s either 32, is not to be used by you in assessing the weight

of any heroin if you get to that point in your verdict, okay.” 

15

Finally, the DEA agent testified that he asked Williams’s

supplier to send heroin through a courier instead of in a book.

Exhibits 35 (DEA agent’s testimony), 36 (heroin), and 42 (lab

report identifying the drug) were entered into the record. Moore

contends that the government offered no new justification for the

submission of this additional evidence, that the evidence related

to the heroin seized from the drug courier is “irrelevant to the

proceedings altogether,” as the modus operandi differed, and that

it is unduly prejudicial.37 The government contends that the

evidence was properly admitted to refute Moore’s challenge to

Williams’s testimony that he knowingly received heroin from a

source in Benin through Tunde.38

In response to Moore’s objections, the district court

instructed the jury on at least two occasions to consider the

evidence only to corroborate Williams’s testimony.39 Moore contends

that the limiting instruction did not rectify the error
40 The government stated: “He waiting at the Sheraton for three days to

give Noah Moore’s mother a brief with seven issues or seven diamonds, seven

watches, seven postcards or seven, 700 grams of heroin, a courier with 700 grams

of heroin. How could that work? Let’s look at Government Exhibit 42.” 

41 United States v. Akpan, 407 F.3d 360, 369 (5th Cir. 2005) (citations

omitted).

42 United States v. Bullock, 71 F.3d 171, 178-179 (5th Cir. 1995) (citing

Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994)); see also Hadnot v. Bay,

Ltd., 344 F.3d 474, 476 n.4 (5th Cir. 2003).

16

particularly because the government improperly used the evidence in

its closing to implicate guilt, after the limiting instructions had

been issued.40 We disagree.

“[E]ven if the district court abused it discretion, such

‘abuse is only reversible if the error affected a substantial right

of the complaining party,’ i.e., we would subject the abuse to

harmless error review....”41 Even if the district court abused its

discretion, any error was harmless, mitigated by the district

court’s limiting instructions, as independent and uncolored

evidence provides ample basis upon which a jury could have

convicted Moore.

VI

In his supplemental, pro se brief, Moore contends that the

district court made five errors in its jury instructions related to

conspiracy and burden of proof. A defendant abandons issues raised

in a supplemental brief when not raised and argued in the original

brief.42 In any event, Moore’s contentions fail on the merits,

particularly since Moore did not object on these grounds before the
43 United States v. Cyprian, 197 F.3d 736, 741 (5th Cir. 1999).

44 Bullock, 71 F.3d at 179.

45 United States v. Booker, 125 S.Ct. 738 (2005).

46 United States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).

47 Akpan, 407 F.3d at 377.

17

district court and plain error review consequently applies.43 “We

are satisfied that no injustice is done by deeming [the

defendant’s] issues waived.”44

VII

Lastly, Moore objected to the calculation of his sentence

during the sentencing hearing. Specifically, he alleged that a

jury did not find the quantity of drugs, a leadership role, an

obstruction of justice enhancement, or the enhancements advocated

in the PSR based on a separate charging document. The government

concedes preserved Booker45 error. Pursuant to a properly preserved

Booker objection, we will vacate and remand for resentencing unless

the government can establish harmless error beyond a reasonable

doubt.46

The burden of proving that “the district court would not have

sentenced [Moore] differently had it acted under an advisory

Guidelines regime” rests upon the government.47 It cites an

unpublished opinion, United States v. Prones, for the proposition

that “the district court’s conscious decision not to award a
48 145 Fed. Appx. 481, 481 (5th Cir. 2005). 

49 The government cites a passage in which the district court notes the

consideration given to Moore’s sentence. This passage does not expressly mention

the decision to run the sentences consecutively.

50 But cf. United States v. Olivares-Martinez, 767 F.2d 1135, 1137 (5th

Cir. 1985) (stating that “consecutive sentencing is an appropriate mechanism for

imposing distinct punishment for separate criminal acts, and that a defendant has

no right to have concurrent sentences imposed for two totally unrelated offenses"

(citations omitted)).

51 United States v. Woods, 2006 U.S. App. LEXIS 3437, 12-13 (5th Cir.

2006) (stating that the imposition of a consecutive sentence based on unrelated

charges does not weigh in favor of harmless error). United States v. Garza, 429

F.3d 165, 170 (5th Cir. 2005) (“Second, in an unpublished decision, we determined

that Booker error was harmless where the sentencing court expressly refused to

run the defendant's federal Guidelines sentence concurrently with his state

sentence. We find that the Government's evidence in the instant case falls

woefully short of the circumstances presented in these cases” (citations

omitted).).

18

concurrent sentence [means] that any Booker error was harmless

beyond a reasonable doubt.”48 The government argues that the

district court’s decision to run Moore’s sentence consecutively

with his previous, 295-month drug trafficking sentence came after

much judicial effort.49 Moore had 59 months remaining in this

former sentence, and the district court’s decision to impose 200

months in addition to the remaining 59 months evidences the court’s

unwillingness to reduce the sentence, irrespective of the mandatory

Guidelines.50

“However, whether imposition of consecutive sentences is

sufficient to demonstrate that a Booker error is harmless is a

fact-sensitive inquiry that must examine the relationship between

the two sentences imposed.”51 Moore’s convictions are not factually

related. Even so, after selecting a sentence of 200 months from
19

within the mandated range of 188-235 months, the district court had

a binary choice in sentencing Moore—a 59-month difference between

the two options. The record does not demonstrate beyond a

reasonable doubt that the district court wanted to sentence Moore

to as many as 259 months. Constrained by the Guidelines, the

district court could not freely sentence Moore between the 200 and

259-month terms.

We AFFIRM the conviction and, in light of the Booker error,

REMAND to the district court so that it may resentence Moore if, in

its discretion under the now-advisory Guidelines, it so chooses.