## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-3309

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. James Eric Moore, *
* Defendant - Appellant. *

___________ Submitted: June 18, 2010 Filed: November 1, 2010

___________ Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.

___________ LOKEN, Circuit Judge. While on supervised release for a prior drug conviction, James Eric Moore sold crack cocaine to a confidential informant. A jury found Moore guilty of possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); the district court sentenced him to 188 months in prison. In a separate proceeding, the court also found that Moor e violated the terms of his supervised release, granted the government’s petiti on to revoke, and imposed a consecutive 24- month sentence for that violation. Moore appealed both sentences , and we affirmed. United States v. Moore , 470 F.3d 767 (8th Cir. 2006). The Supreme Court vacated and remanded for reconsideration in light of Kimbrough v. United States , 552 U.S. 85 (2007). Moore v. United States , 552 U.S. 1090 (2008), and 129 S. Ct. 4 (2008). We1 The HONORABLE LINDA R. READE, Chief Judge of the United States District Court for the Northern District of Iowa.
-2- remanded for resentencing under Kimbrough , which held that district courts may vary from the advisory guidelines range becauseof the Guidelines’ sentencing disparity between crack and powder cocaine offenses . 552 U.S. at 110-11. On remand, the district court 1 conducted a full resentencing. A pplying the retroactive amendments that reduced the Guidelines’ disparity be tween crack and powder cocaine sentencing,

see U.S.S.G. App. C, amend. 706, 711, 713 ( 2009), the court determined an advisory sentencing range of 130-162 months in pris on and sentenced Moore to 130 months for the drug offense. Moore appeals. We affirm.

1. On the issue that pr ompted the Supreme Court’s remand, Moore argues that his sentence is substantively unreasonable because the district court should have granted a downward variance to eliminat e the remaining disparity between crack cocaine and powder cocaine offenses under the recent Guidelines amendments. The district court acknowledged its ability to vary downward but declined to do so, describing Moore as “an unrepentant recidivi st” and pointing to his criminal history, his false testimony at trial, and his atte mpt to rationalize his crime by blaming the police. As our recent decisions make clear, while Kimbroughpermitted district courts to disagree with and vary from the am ended crack cocaine guidelines, it did not require them to do so. United States v. Talamantes , -- F.3d -- (8th Cir. 2010); United States v. Barron , 557 F.3d 866, 871 (8th Cir. 2009). Moore’s revised sentence was within the amended guidelines range and reflected a reduction of 58 months. Our substantive review of sentences “is narrow and deferential. . . . [I ]t will be the unusual case when we reverse a district court sent ence -- whether within, above, or below the applicable Guidelines range -- as subs tantively unreasonable.” United States v. Feemster , 572 F.3d 455, 464 (8th Cir. 2009) (en banc). We conclude that Moore’s sentence is not unreasonable.-3- 2. Moore argues the district court committed procedural error in calculating the drug quantity attributable to his offense by crediting “unsubstantiated testimony” and failing to eliminate personal us e quantities. At trial, Det ective George Aboud testified that Moore admitted purchasing 1.5 grams of crack cocaine from four different individuals, five to six times each. At sentencing, Moore disputed this testimony, stating that he purchased crack cocaine a tota l of five to six times, not five to six times from each individual. The district court credited Aboud’s testimony in determining drug quantity. Moore further testified thata substantial portion of the quantity he purchased was for personal use. However, a warrant search of Moore’s residence uncovered no evidence of pers onal use, and his twice-m onthly drug tests yielded no positive results for the eight months prior to the search. The district court rejected Moore’s personal use testimony. These cred ibility determinations were within the province of the district court and are rare ly overturned on appeal. United States v. Lincoln , 413 F.3d 716, 717 (8th Cir.), cert. denied , 546 U.S. 1081 (2005). Moreover, Moore’s drug quantity was near the top of the applicable offense level range; even reducing it by forty percent would not affect the advisory guidelines range. There was no clear error. See Moore , 470 F.3d at 770.

3. Moore next argues that the distri ct court committed procedural error when it imposed a two-level increase for obstruction of justice. The court found that Moore “willfully lied under oath at trial, and . . . repeated those lies before the judge for sentencing.” The court cited as examples Moore’s testimony that he personally used a substantial portion of the crack he purchas ed and his repeated denials that he knew about the crack found during the warrant search of his residence. Lying to obtain a lighter sentence is obstruction of justi ce under U.S.S.G. § 3C1.1, and the district court’s finding that Moore lied “must be accepted unless clearly erroneous.” United States v. Flores , 959 F.2d 83, 87 (8th Cir.), cert. denied , 506 U.S. 976 (1992). There was no clear error.

4. Finally, Moore’s attorney thoroughly briefed five additional issues that are presented in accordance with the procedur es set forth in Anders v. California , 3862 The revocation sentence has been affirmed on appeal and is not at issue. See United States v. Moore , 518 F.3d 577, 580 (8th Cir. 2008).
-4- U.S. 738 (1967). Moore argues that imposing consecutive sentences for the drug offense and the supervised release violati on for the same conduct violated the Double Jeopardy Clause, or the Sixth Amendment as construed in Apprendi v. New Jersey , 530 U.S. 466 (2000); 2that the advisory guidelines a dopted in United States v. Booker , 543 U.S. 220 (2005), may not be applied to increase the sentencing range for conduct committed prior to the decision in Booker ; that cocaine base, cocaine, and crack are the same chemical substance and therefor e must be sentenced identically under 21 U.S.C. § 812, Schedule II(a)(4); that the distri ct court (and every court to consider the issue) erred when it applied the releva nt conduct guideline, U.S.S.G. § 1B1.3, to aggregate convicted and unconvicted conduc t in determining drug quantity; and that the district court abused its discreti on in denying him a downward variance because financial stress, brought on by a prior unwarranted arrest for forgery, caused him to sell crack cocaine. For the most part, thes e contentions (or variations thereof) were raised and rejected in his initial appeal. SeeMoore , 470 F.3d at 769-70. In any event, we conclude they are without merit. See United States v. Carlton , 534 F.3d 97, 101 (2d Cir.), cert. denied , 129 S. Ct. 613 (2008), and United States v. Bennett , 561 F.3d 799, 802 (8th Cir. 2009) (post-revocation penalties for the same underlying conduct do not implicate the Double Jeopardy Cl ause); United States v. Clemmons , 461 F.3d 1057, 1061-62 (8th Cir. 2006) (the mandatory Guidelines may not be applied in sentencing pre-Booker offenses); 21 U.S.C. § 841(b)(1)(A)(ii) and (iii) (imposing greater punishment for a cocaine substance “which contains cocaine base”); U.S.S.G. § 1B1.3(a).

The judgment of the district court is affirmed.-5- BRIGHT, concurring.

I concur but write separately to again note the disparity in sentences for offenses relating to crack cocaine betweenthe federal judges w ho preside and serve in the Northern District of Iowa. See United States v. Brewer , -- F.3d --, 2010 WL 4117368 (8th Cir. Oct. 21, 2010).

If the district court had applied a 1 to 1 ratio between crack cocaine and powder cocaine, rather than the 25 to 1 ratio actually applied here, th e sentencing guideline range would have been 41-51 m onths (3 years, 5 months

B 4 years, 3 months) instead of the sentencing guideline range utilized here of 130-162 months (10 years, 10 months – 13 years, 6 months).

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