2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-30-2011

USA v. Calvin Moore

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1454

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Recommended Citation

"USA v. Calvin Moore" (2011). 2011 Decisions. Paper 981.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-1454

_______________

UNITED STATES OF AMERICA

v.

CALVIN MOORE,

Appellant

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2-07-cr-00380-001)

District Judge: Hon. Nora B. Fischer

_______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 21, 2011

BEFORE: BARRY, AMBRO and COWEN , Circuit Judges

(Filed June 30, 2011)

_______________

OPINION

_______________

COWEN, Circuit Judge.

Calvin Moore appeals from the judgment of sentence entered against him by the 

United States District Court for the Western District of Pennsylvania. For the following 
2

reasons, we will affirm.

I.

On March 2, 2007, an informant working with federal officers purchased 13.7 

grams of crack cocaine from Moore. Before charges were initiated in the federal case, 

however, he began serving a Pennsylvania sentence (on unrelated drug charges) of not 

less than one year, or more than two years, of imprisonment.

1

 Shortly after he began 

serving his state sentence, a federal grand jury returned an indictment in connection with 

the March 2, 2007 transaction, charging him with one count of distribution of more than 

five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). At 

that time, Moore was removed from state prison by a writ of habeas corpus ad

prosequendum and taken into federal custody. Moore remained in federal custody and 

pled guilty to the federal charge on May 8, 2009. 

Moore’s sentencing hearing took place on January 25, 2010. By this time, he had 

already completed the full two-year term of his state sentence while in federal detention. 

At the hearing, the District Court imposed the statutory minimum sentence for the 

offense, sixty months’ imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii).

2

The District 

Court rejected Moore’s argument that the imposition of a mandatory minimum sentence 

derived from the 100:1 crack-to-powder cocaine ratio was unconstitutional, and denied 

 

1

 The state court ordered that Moore’s term of imprisonment shall be followed by

probation for eighteen months consecutive to parole.

2

 As discussed further below, 21 U.S.C. § 841(b)(1)(B)(iii) was amended pursuant to the 

Fair Sentencing Act to increase the amount of crack cocaine that triggers a mandatory 
3

his request to vary from the statutory minimum sentence by finding that such a sentence 

was “greater than necessary” to serve the purposes of § 3553(a). The District Court also 

declined to adjust Moore’s sentence on the ground that his placement in federal custody 

by way of the writ of habeas corpus ad prosequendum had unfairly lengthened his total 

jail time by interfering with his ability to participate in the state’s early release programs. 

Moore now appeals from the judgment of sentence. 

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We apply a plenary 

standard of review to issues of statutory interpretation, questions regarding a statute’s 

constitutionality, and alleged constitutional errors. See United States v. Randolph, 364 

F.3d 118, 121 (3d Cir. 2004); United States v. Tyler, 281 F.3d 84, 94 (3d Cir. 2002). We 

review a sentence for procedural and substantive reasonableness under an abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). 

III.

Moore first challenges the District Court’s decision not to adjust his federal 

sentence to account for the fact that, because he served his state sentence while in federal 

detention, he did not have an opportunity to take advantage of Pennsylvania’s early 

release programs. At sentencing, Moore explained to the District Court that, when he was 

sentenced for the Pennsylvania drug offense, the state court recommended him for 

 

minimum sentence. 
4

placement in the Pennsylvania Motivational Boot Camp Program. If he had been 

accepted into the program, he would have been eligible to earn early release in as little as 

six months. Even if he did not complete boot camp, he explained, he nonetheless would 

have been eligible for parole after serving one year of his two-year term. Instead, because 

he was taken into federal custody shortly after beginning to serve his state sentence, he 

did not have an opportunity to take advantage of these early-release programs and was 

required to serve the complete two-year state sentence while in federal detention before 

he began to accrue any time toward his federal sentence for the instant offense. Moore 

claimed that this was fundamentally unfair and asked the District Court to sentence him 

below the mandatory minimum to account for this unfairness.3 The District Court denied 

the request on the grounds that: (a) Moore did not qualify for a downward departure 

under either U.S.S.G. §§ 5G1.3 or 5K2.23;

4

and (b) Moore had failed to show that he 

ultimately would have been accepted into the Motivational Boot Camp Program and 

released after only six months, or that, alternatively, he would have been paroled after 

only one year. 

 

3

 Specifically, Moore asked the District Court to reduce his sentence by either: (a) 

eighteen months, to account for the time he spent in federal detention in excess of the six 

months he would have spent in boot camp; or (b) twelve months, to account for the time 

he spent in federal detention in excess of the time he would have spent in state prison 

before becoming eligible for parole. Moore also asked the court to reduce his sentence by 

twenty-four months to effectively make his state-court sentence run concurrent to his 

federal sentence. 

4 As the District Court explained, U.S.S.G. §§ 5G1.3 and 5K2.23 apply only where the 

same course of criminal conduct gave rise to both the state and federal charges. 

Furthermore, § 5G1.3 applies only to undischarged sentences. 
5

On appeal, Moore argues that the District Court failed to sufficiently consider his 

argument that the federal writ interfered with the state judge’s discretion to fashion an 

appropriate sentence, and also failed to make clear whether it was denying his request for 

an adjustment based on “the law of variance, the law of departure or for other reasons and 

whether those reasons were legal or discretionary reasons.” (Br. 27.) We disagree. We 

have reviewed the record and conclude that the District Court thoroughly considered all 

of Moore’s arguments, properly determined that Moore did not qualify for a downward 

departure under either U.S.S.G. §§ 5G1.3 or 5K2.23, and reasonably concluded that his

arguments about the shorter state sentence he might have served had he remained in state 

prison were too speculative to warrant relief. Accordingly, we see no procedural or 

substantive error in the District Court’s decision. 

Next, Moore argues that the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 

124 Stat. 2372 (the “FSA”), which increased the threshold amount of crack cocaine that 

triggers a mandatory minimum sentence under § 841(b)(1)(B) and went into effect while 

his appeal was pending, should be applied to his case. His arguments in support of 

retroactive effect are foreclosed by our decision in United States v. Reevey, 631 F.3d 110, 

114-15 (3d Cir. 2010), in which we held that the mandatory minimum sentences for crack 

violations in effect before the enactment of the FSA apply to defendants who committed 

their crimes while the prior law was in force. 

Moore also argues that the statutory minimums in 21 U.S.C. § 841 based on the 

100:1 crack-to-powder ratio in effect at the time of his sentence violate due process, equal 
6

protection, and the proportionality principle of the Eighth Amendment. We have 

consistently held, however, that the distinctions between crack and powder cocaine in § 

841 and the Guidelines in effect at the time of Moore’s sentencing do not violate a 

defendant’s right to due process or equal protection. See United States v. Alton, 60 F.3d 

1065, 1068-70 (3d Cir. 1995); United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992). 

We have also held that neither the mandatory minimum sentences for crack offenses 

under § 841, nor the 100:1 crack-to-powder ratio, violates the Eighth Amendment’s 

prohibition on cruel and unusual punishments. See Frazier, 981 F.3d at 96. Moore’s 

arguments urging this Court to reconsider these holdings in light of the FSA and 

Kimbrough v. United States, 552 U.S. 85 (2007), are unavailing. 

Lastly, Moore argues that § 841(b)(1)(B)(iii)’s mandatory minimum sentence 

“conflicts” with the parsimony provision of 18 U.S.C. § 3553(a), which provides that a 

district court “shall impose a sentence sufficient, but not greater than necessary” to 

accomplish the goals of sentencing. 18 U.S.C. § 3553(a). Specifically, Moore contends 

that the District Court was unable to “carry out its judicial function, as set forth in the 

mandates of 18 U.S.C. § 3553(a), because it had to comply with the mandatory five (5) 

year sentence.” (Br. 59.) We have previously rejected such challenges to mandatory 

minimum sentences. See United States v. Walker, 473 F.3d 71, 85 (3d Cir. 2007) 

(holding that there is no conflict between § 3553 and a mandatory minimum sentence 

provision because “§ 3553(a) must be read in conjunction with § 3553(e), which prohibits 

the court from sentencing a defendant below the statutory mandatory minimum sentence 
7

unless the Government files a motion permitting such departure”); United States v. 

MacEwan, 445 F.3d 237, 251-52 (3d Cir. 2006) (“Congress has the power to define 

criminal punishments without giving the courts any sentencing discretion.” (quoting 

Chapman v. United States, 500 U.S. 453, 467 (1991))). 

IV.

For the reasons set forth above, we will affirm the judgment of sentence.