In the

United States Court of Appeals

For the Seventh Circuit

No. 14-3269

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY T. MOORE, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the 

Southern District of Illinois.

No. 3:13-cr-30212-DRH-1— David R. Herndon, Judge.

ARGUED FEBRUARY 24, 2015 — DECIDED APRIL 24, 2015

Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge. Anthony T. Moore, Jr. was convicted

of interference with commerce by robbery, in violation of 18

U.S.C. §§ 1951 and 2. He challenges the district court’s decision

to run his 235-month federal sentence consecutive to sentences

imposed in state court for attempted murder, aggravated

battery and possession with intent to deliver a controlled

substance. We affirm.
2 No. 14-3269

I.

On December 17, 2012, United Parcel Service (“UPS”)

driver Steven Roberts was returning to his delivery truck after

attempting to deliver a package when he noticed a man

walking down the middle of the street. A blue minivan drove

slowly behind the man, trailing him by approximately two car

lengths. Roberts returned the undelivered package to the back

of his truck and then took his place in the driver’s seat. The

man, later identified as Moore, appeared next to him, armed

with a revolver. Roberts ran from the truck, but slipped and

fell in the mud between two houses. Moore caught up to him

and threatened to shoot him if he ran again. With the gun

trained on Roberts, Moore walked Roberts back to the truck

and told him to drive. Moore crouched down on the passenger

side of the truck’s cab and directed Roberts to a dead-end

street marked by abandoned houses and overgrown shrubbery. 

During the ten- to fifteen-minute drive, Roberts noticed that

the blue minivan that had trailed Moore earlier was now

following the delivery truck. As Roberts drove, Moore told

him, “Don’t make me kill you,” and “Don’t get killed over

somebody else’s stuff, so just do like I say. Just do like I say.”

Tr. at 65. At times, Moore seemed “antsy and agitated” and at

other times he was calm. Roberts took the opportunity of a

calm moment to plead for his life, asking Moore not to kill him,

and explaining that he had a wife and two children whom he

wanted to see grow up. When they reached the dead-end

street, Moore directed Roberts to park and turn off the truck.

The minivan pulled in nearby, and after Moore made a phone

call to a woman, another vehicle arrived on the scene. Moore
No. 14-3269 3

directed Roberts to sit in the driver’s seat and keep his head

down. The drivers of the blue minivan and the second vehicle

then began to unload packages from the UPS truck and place

them in the minivan and the other vehicle. Roberts began to

think that “this is it, that this is my last day on earth, this

is—you know, once they’re done—considering the location,

and once they’re done, I thought I was going to die back there

on that road.” Tr. at 66-67. 

As the unloading progressed, an older couple in a Dodge

Durango drove towards the UPS truck. At this point, Moore

was crouched down in the passenger area with his gun pointed

at Roberts. Moore whispered, “Don’t say anything. I’ll shoot

you.” The couple slowed as they passed the UPS truck and

asked Roberts, “Is everything ok?” Roberts nodded at them

and they drove on. Tr. at 68. The incident agitated Moore and

he directed Roberts to drive to a second location approximately

five minutes away. When they arrived at the second location,

Roberts noticed that the drivers of the blue minivan and the

other vehicle were gone, taking with them the packages that

had already been unloaded. Moore directed Roberts to push

the remaining packages closer to the back of the UPS truck so

that it would be easier to finish unloading the truck. Moore

also directed Roberts to open some packages to determine if

the contents were worth stealing. Someone returned to

continue unloading the truck. After the remaining packages

were unloaded, Moore directed Roberts to go to the back of the

truck and sit on the floor. Roberts told the jury:

[S]o I sat there. By now I’m robotic. I’m just—it’s like

I was in out-of-body kind of thing. I was there but I

wasn’t, and I was just doing what he said. And he
4 No. 14-3269

told me to sit there, so I sat there and I put my head

down and he was standing up over me with the gun

pointed to me, and so I figured, well, they’ve taken

everything and that he was ‘fin to kill me. I put my

head down and I just ask the Lord—I just put my

head down and asked the Lord to receive my soul

because of where we were located, that now they’re

done, I just figured he—I knew he was going to just

kill me and leave me there. It was an isolated area.

I was—I just thought I was dead so I had already

accepted to die.

Tr. at 73. 

But Moore did not pull the trigger. Out of the corner of his

eye, Roberts saw Moore back away and leave the UPS truck.

Roberts then heard a car door slam and tires peeling off in the

rocks. After a few moments of paralyzed shock, Roberts heard

a little voice in his head say, “Steve, get up.” Tr. at 74. Moore

had disabled Roberts’ cell phone by removing the battery so he

got into the driver’s seat and drove to a store that was a regular

stop on his delivery route. The workers at the store called the

police, and Roberts called his wife and his supervisors at UPS.

The incident had lasted for an hour and forty minutes, and

Moore had not lowered his gun until he fled the UPS truck. 

As investigators later learned, the blue minivan was driven

by Janneka Adams and the other vehicle was driven by

Victoria Walker. Both were romantically involved with Moore,

and Walker was the mother of Moore’s son. Walker had rented

the blue minivan the prior week for Moore to use on a trip.

After the robbery, the stolen packages were taken to Walker’s
No. 14-3269 5

home and the three divided up the spoils. Among the items

taken from the truck were hair extensions that regularly sold

for $100 each in retail establishments. A day or two after the

robbery, Walker called her fifteen-year-old friend, J.B., and

offered to sell some of the hair extensions for $5 each. J.B.

readily agreed to the deal and Walker then drove to J.B.’s home

with Moore and Moore’s cousin. J.B. completed the purchase

and asked Walker to fix the extensions in her hair. Walker

agreed to do so and the foursome then drove to a nearby store

to purchase hair glue.

A UPS truck was parked at the store, and as they passed it,

Moore said, “Round 2.” Walker told Moore that he was talking

too much. J.B. then purchased the hair glue and the group

began to drive to Walker’s home. They saw a Federal Express

truck on the road, and Moore said, “That’s the truck I really

want.” Walker again admonished Moore, telling him that he

was talking too much and that there were “too many ears

around.” After they arrived at Walker’s house, Walker placed

the hair extensions in J.B.’s hair and then left for work. J.B.

remained at Walker’s home for a time watching television with

Moore. A news report came on describing the UPS robbery.

Moore then received two phone calls in quick succession,

including one from Walker. Moore complained about Walker

talking to him “about this” while she was at work and told her

they would discuss it when she returned home. J.B. decided to

leave and asked Moore to walk her to the Metrolink station. On

the way to the station, Moore pulled out a handgun and said,

“What if I was to shoot you in your head right here?” J.B. told

Moore not to play with her and told him she no longer wanted

his company. She continued to the station by herself and went
6 No. 14-3269

home. J.B. had seen other unusual items at Walker’s house that

day including additional hair extensions, cell phones, jewelry

and sports hats. At that point, she surmised that Moore and

Walker had robbed a UPS truck and that Moore wanted to rob

a Federal Express truck as well. She took Moore’s question

about shooting her in the head as a threat to kill her to prevent

her from telling authorities what she knew. 

Later that night, at approximately 2:00 a.m., Walker

returned to J.B.’s home and invited her to come out to smoke

marijuana. J.B. accepted the invitation and Walker then drove

J.B. to a viaduct where Moore was waiting with a gun. Moore

immediately threatened J.B. again, saying, “You ran around

here snitching. I’m ‘fin to kill you, B.” The details of what

happened next came out later in a state court trial, but were not

admitted during the federal trial that is the subject of this

appeal. After threatening J.B., Moore threw J.B. into a ditch and

fired three shots at her. One bullet hit her in the head, one

struck her hip, and one missed her entirely. J.B. played dead

until Moore and Walker left. She then managed to walk home

and summon an ambulance.

As a result of the shooting of J.B., Moore was charged in

state court with one count of attempted first degree murder

and two counts of aggravated battery. A jury found him guilty

on all three counts and the state court sentenced him to thirtyfour years’ imprisonment. In a separate state case, Moore pled

guilty to possession with intent to deliver a controlled substance. He was sentenced on that charge to four years’ imprisonment, to run consecutive to the thirty-four year sentence for

attempted murder and aggravated battery. For hijacking the

UPS truck, Moore was charged in federal court with one count
No. 14-3269 7

of interference with commerce by robbery, in violation of

18 U.S.C. §§ 1951 and 2. He was convicted and sentenced to 235

months’ imprisonment. The district court judge decided to run

Moore’s federal sentence consecutive to (rather than concurrent with) his state court sentences. It is that decision that

Moore challenges on appeal.

II.

Our review of sentencing decisions generally is limited to

whether they are reasonable, applying the abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 46 (2007); United

States v. Aslan, 644 F.3d 526, 531 (7th Cir. 2011). In the usual

case, we first must ensure that the district court committed no

significant procedural error, including, among other things,

incorrectly calculating the guidelines range, or failing to

explain adequately the chosen sentence. Gall, 552 U.S. at 51;

Aslan, 644 F.3d at 531. But Moore does not claim any procedural error. He concedes that his 235-month sentence is within

the properly calculated guidelines range. He challenges only

the substantive reasonableness of the district court’s decision

to run his entire federal sentence consecutive to his state

sentence, a decision that added nearly twenty years to his

thirty-eight year state sentence. We therefore review the

district court’s decision for abuse of discretion.

The parties agree that the properly calculated guidelines

range for the offense of conviction was 188 to 235 months, as

recommended by the Presentence Investigation Report

(“PSR”). That recommendation included a two-level adjustment for obstruction of justice because Moore shot J.B. in order

to keep her from reporting the crime. See U.S.S.G. § 3C1.1.
8 No. 14-3269

Because the PSR characterized the attempted murder of J.B. as

relevant conduct to the offense of conviction, Moore was

assessed no criminal history points for his state court conviction. The PSR then determined that guideline 5G1.3(b) applied

because the offense level was increased based on conduct

which resulted in a term of imprisonment. That is, Moore’s

offense level was increased by two levels under the obstruction

of justice provision for the attempted murder of J.B., a crime

for which he received a separate state court sentence. At the

time of Moore’s sentencing, section 5G1.3(b) provided:1

If subsection (a) does not apply, and a term of

imprisonment resulted from another offense that is

relevant conduct to the instant offense of conviction

under the provisions of subsections (a)(1), (a)(2), or

(a)(3) of § 1B1.3 (Relevant Conduct) and that was the

basis for an increase in the offense level for the

instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence

for the instant offense shall be imposed as follows:

(1) the court shall adjust the sentence for any period

of imprisonment already served on the

undischarged term of imprisonment if the court

determines that such period of imprisonment will

not be credited to the federal sentence by the Bureau

of Prisons; and

1

 Subsections (b) and (c) of guideline 5G1.3 were amended in November

2014.
No. 14-3269 9

(2) the sentence for the instant offense shall be

imposed to run concurrently to the remainder of the

undischarged term of imprisonment. 

U.S.S.G. § 5G1.3(b).2 Because the PSR concluded that “a term

of imprisonment resulted from another offense that is relevant

conduct to the instant offense of conviction,” subsection (b)(2)

directed that Moore’s sentence for interference with commerce

by robbery run concurrently with his state court sentence for

attempted murder. 

The government objected to the application of guideline

5G1.3(b), contending instead that subsection 5G1.3(c) applied.

At the time of Moore’s sentencing, that subsection provided:

(c) (Policy Statement) In any other case involving an

undischarged term of imprisonment, the sentence

for the instant offense may be imposed to run

concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the

instant offense.

U.S.S.G. § 5G1.3(c). According to the government, Moore

would have received a sentencing enhancement for obstruction

of justice based solely on his threats to J.B., threats for which he

2

 Subsection (a) provides, “If the instant offense was committed while the

defendant was serving a term of imprisonment (including work release,

furlough, or escape status) or after sentencing for, but before commencing

service of, such term of imprisonment, the sentence for the instant offense

shall be imposed to run consecutively to the undischarged term of

imprisonment.” Subsection (a) did not apply, thus satisfying the first

condition for applying subsection (b).
10 No. 14-3269

was never separately prosecuted. Thus, the government

contended, Moore’s state court sentence for attempted murder

was not “the basis for an increase in the offense level for the

instant offense.” Rather, the basis for the increase was the two

threats that Moore issued to J.B. before he shot her. The district

court declined to apply subsection 5G1.3(c). The court agreed

that Moore’s threats alone would have been sufficient to

support an obstruction of justice enhancement but that Moore’s

obstruction continued beyond the threats to the actual attempted murder of J.B., in an “ongoing effort to obstruct justice

and to silence [J.B.].” Sent. Tr. at 14-15. See also Sent. Tr. at 16

(where the district court remarked, “I agree that obstruction

was established once the threat was made. I just don’t believe

that we end there with the obstruction. The obstruction

continued.”). The court thus treated the obstruction as a single

course of conduct that included both the threats and the

attempted murder; because the attempted murder resulted in

a sentence of imprisonment, the court applied section 5G1.3(b)

rather than 5G1.3(c).

But whether section 5G1.3(b) or 5G1.3(c) applied, the court

was within its authority to run the sentences consecutively

rather than concurrently. Of course, section 5G1.3(c) expressly

authorizes consecutive sentences, and if the court had relied on

that provision, we would generally presume a within-guidelines consecutive sentence to be reasonable. Rita v. United

States, 551 U.S. 338, 347 (2007) (sentences that are within the

properly calculated guidelines range are entitled to a rebuttable presumption of reasonableness); United States v. Fletcher,

763 F.3d 711, 715 (7th Cir. 2014); United States v. Mykytiuk,

415 F.3d 606, 608 (7th Cir. 2005). But courts are also free to
No. 14-3269 11

disagree with a guidelines recommendation, as the court did

here when it rejected concurrent sentences under section

5G1.3(b). See Kimbrough v. United States, 552 U.S. 85, 109–10

(2007). See also Spears v. United States, 555 U.S. 261, 265–66

(2009) (“we now clarify that district courts are entitled to reject

and vary categorically from the crack-cocaine Guidelines based

on a policy disagreement with those Guidelines.”). 

Moreover, a court is authorized by statute to impose a

consecutive sentence when a defendant is already serving an

undischarged term of imprisonment, as happened here.

18 U.S.C. § 3584(a). In determining whether the terms imposed

are to be ordered to run concurrently or consecutively, the

court “shall consider, as to each offense for which a term of

imprisonment is being imposed, the factors set forth in section

3553(a).” 18 U.S.C. § 3584(b). 

And that is what the district court did in this instance. The

court considered the section 3553(a) factors and applied them

in determining where in the guidelines range to place Moore’s

sentence and also in deciding whether to run the sentence

concurrent with or consecutive to the state court sentence. In

particular, the court considered the nature and circumstances

of the offense and the history and characteristics of the defendant. The court noted that the crime involved an armed

robbery of a driver of a truck containing an interstate shipment

of parcels, as well as threats to a potential witness and an

attempt on the life of that witness. The court characterized the

offense as “serious” and “quite a dangerous crime” which had

a significant adverse impact on commerce. The court was also

cognizant of the effect of the crime on the UPS driver, who was

terrorized by the “quite harrowing” hijacking and who, along
12 No. 14-3269

with his family, suffered long-lasting consequences from

Moore’s acts. 

In considering Moore’s character and history, the court

noted that, after committing this crime, Moore expressed

interest in hijacking other trucks, that he had committed a prior

crime of violence (a residential burglary), as well as misdemeanor battery, violation of an order of protection, and

possession with intent to deliver a controlled substance. The

court remarked, “The Sentencing Commission doesn’t consider

Mr. Moore a career criminal but I do. Public is not safe at all

with Mr. Moore walking the streets as far as I’m concerned.”

Sent. Tr. at 28. In summarizing his reasons for a sentence at the

high end of the guidelines and for a consecutive sentence, the

court said:

In light of the dangerousness of this crime, fear of

death he imposed upon the driver during this

offense, the multiple victims whose packages were

stolen, the adverse effect on commerce, the adverse

effect on the driver and his family after the offense,

which continues to linger and will continue to

linger, the clear inference that the defendant

planned more robberies from which you can infer

there would have been similar adverse effects. In

light of the defendant’s repeated criminal convictions, including the residential burglary crime of

violence, his attempt to murder a witness in this

case.

When we look at the factors of need for the sentence

imposed to reflect the seriousness of the offense,
No. 14-3269 13

promote respect for the law, provide just punishment for the offense, protect the public from further

crimes, and provide adequate deterrence, the Court

will sentence the defendant ... to the upper end of

the guideline range of 235 months. 

Sent. Tr. at 28-29. In deciding to run the federal sentence

consecutive to the state sentence, the court again cited these

same facts and expounded on the reasons for a lengthy

sentence:

But the Court finds that the obstruction enhancement, though technically correct—and I think, quite

frankly, it’s a close call. I’m not entirely confident in

my ruling in that regard to be an insufficient remedy

for shooting and trying to kill a witness in this case.

As the facts bear out, [Moore] first threatened the

witness, which would have been sufficient for the

obstruction enhancement alone, but then actually to

[attempt to] kill the witness takes these actions to

[an] entirely different level. So the Court rejects the

advice of the Commission on the point of concurrence versus consecutive treatment of this sentence

to the state sentence for attempt murder. In addition,

he was likewise convicted of a completely unrelated

drug charge.

As I alluded to earlier, Mr. Moore is a career criminal in my mind. These crimes deserve to be treated

separately in the Court’s eyes and the public deserves protection accordingly. For the reasons I

outlined for justifying an upper end guideline
14 No. 14-3269

sentence, I also, for the reasons just verbalized, find

that the sentence herein shall run consecutive to the

two state sentences the defendant’s now serving for

attempt murder and possession with the intent to

deliver.

Sent. Tr. at 29-30.

The court extensively justified a sentence at the high end of

the guidelines range and the consecutive treatment of that

sentence. “Although the extent of the difference between a

particular sentence and the recommended guidelines range is

relevant, we afford deference to the district court's judgment

whether a sentence is ‘inside, just outside, or significantly

outside’ the guidelines range.” United States v. Tockes, 530 F.3d

628, 632 (7th Cir. 2008) (quoting Gall, 552 U.S. at 41). A district

court “must give serious consideration to the extent of any

departure” from the guidelines and must explain its conclusion

“that an unusually lenient or an unusually harsh sentence is

appropriate in a particular case with sufficient justifications.”

Gall, 552 U.S. at 46. “The Supreme Court has rejected an

appellate rule that requires extraordinary circumstances to

justify a sentence outside the guidelines range, and also has

rejected a rigid mathematical approach that compares the

percentage of the departure with the strength of the justification.” Tockes, 530 F.3d at 632; Gall, 552 U.S. at 46-47. The court

must consider all of the section 3553(a) factors, making “an

individualized assessment based on the facts presented.” Gall,

552 U.S. at 49-50; Tockes, 530 F.3d at 632; United States v.

Miranda, 505 F.3d 785, 791 (7th Cir. 2007). 
No. 14-3269 15

It is pellucid that the court met that standard here. This was

a quintessential exercise of judicial discretion. The district court

heard the harrowing testimony of the UPS driver and reviewed

the driver’s victim impact statement, which addressed the

long-term effects of the crime on the driver and his family. The

court also heard the testimony of J.B., and reviewed her state

court testimony regarding Moore’s attempt on her life. The

court also considered evidence presented in mitigation and the

defendant’s own statement. The court clearly determined that

the obstruction enhancement could have been justified by the

threats alone, that a two-level enhancement was inadequate to

account for the very serious attempted murder of a witness,

and that the two crimes were each so serious in their own right

that only consecutive sentences would be appropriate. Contrary to Moore’s contention, there was no duplication of

punishment here. The court more than adequately justified its

decision to reject the advice of the Sentencing Commission, and

the sentence is therefore 

AFFIRMED.