2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2009

USA v. Moore

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1935

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Moore" (2009). 2009 Decisions. Paper 676.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/676
The Honorable Anne E. Thompson, Senior District Judge for the United States *

District Court for the District of New Jersey, sitting by designation.

1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-1935

 

UNITED STATES OF AMERICA,

 Appellant

 v.

CHARLES EDWARD MOORE

 

On Appeal from the United States District Court

for the District of Delaware

District Court No. 06-cr-00025

District Judge: The Honorable Joseph J. Farnan, Jr.

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

April 20, 2009

Before: SMITH, COWEN, Circuit Judges

and THOMPSON, District Judge*

(Filed: September 14, 2009)

 

 OPINION

 
2

SMITH, Circuit Judge.

Charles Moore pleaded guilty to a one count information that charged him with tax

evasion, in violation of 26 U.S.C. § 7201. The Sentencing Guidelines recommended a

sentence that included an 18- to 24- month term of imprisonment. The District Court,

however, sentenced Moore to a below-Guidelines sentence of 5 years of probation, a

$25,000 fine, and $100 special assessment. The Government filed a timely appeal

challenging the reasonableness of Moore’s sentence. We will affirm.

I.

Inasmuch as we write primarily for the parties, who are familiar with this case, we

need not recite additional factual or procedural background.

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

jurisdiction to review the Government’s appeal under 18 U.S.C. § 3742(b) and 28 U.S.C.

§ 1291. We first review Moore’s sentence for significant procedural error, then for

substantive reasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en

banc). At both stages, we apply the abuse of discretion standard. Id. “[A]n abuse of

discretion has occurred if a district court based its decision on a clearly erroneous factual

conclusion or an erroneous legal conclusion.” Id. at 567–68.

II.

A. Procedural Error

The Government claims that the District Court based its sentence on two clearly

erroneous factual findings: 1) Moore’s “law abiding lifestyle throughout [his] life except
The District Court later stated that Moore “ha[d] been a . . . law-abiding citizen 1

throughout [his] life.” (J.A. 37.) We believe it clear from the record that the Court was

not making a separate finding of fact with that statement, but was instead referencing its

earlier finding that Moore led a law-abiding lifestyle “except for the tax offense.” (J.A.

35.)

3

for the tax offense” (J.A. 35); and 2) Moore’s “full[] cooperat[ion]” with the 1

Government’s investigatory efforts into the amount of his own tax evasion and other

potential tax evaders (J.A. 37). “A finding is clearly erroneous when although there is

evidence to support it, the reviewing body on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.” United States v. Wise, 515 F.3d

207, 218 (3d Cir. 2008) (internal quotations and citation omitted). After carefully

reviewing the record, we are left without such a conviction.

First, the Government asserts that Moore committed various other crimes to further

his tax evasion, such as using false Social Security numbers and titling real estate and

vehicles in names other than his own. But the Government has offered no evidence that

Moore engaged in any significant criminal conduct that was unrelated to his tax evasion. 

Absent such a showing, we cannot say that it was clearly erroneous for the District Court

to conclude that Moore led an otherwise law-abiding life aside from evading taxes.

Second, the Government cites Moore’s continued failure to file certain tax forms,

failure to correct incomplete or inaccurate information contained in other forms, and

inability to provide complete and accurate identification information for other potential

tax evaders as evidence that Moore did not fully cooperate with the Government. The

Government, however, ignores the litany of evidence before the District Court that
4

supports a conclusion that Moore cooperated fully. At sentencing, the Government

readily admitted that Moore’s cooperation saved its investigators “six to eight months in

investigative time,” which it deemed “significant.” (J.A. 30.) The Government also

pointed out that Moore disclosed that he had about $700,000 in a commercial credit card

account that, despite knowing the title of the account, Government investigators “[h]adn’t

looked in it yet.” (Id.) According to the Government, this too was “significant.” (Id.) 

Finally, Moore explained that he gave the Government all the information that he had

concerning the other potential tax evaders. Taken as a whole, the evidence of Moore’s

cooperation does not leave us with a “definite and firm conviction that a mistake has been

committed” here. Wise, 515 F.3d at 218 (internal quotations and citation omitted).

The Government also argues that the District Court failed to acknowledge its

arguments at sentencing. But we have held that “[t]he court need not discuss every

argument made by a litigant if an argument is clearly without merit . . . [n]or must a court

discuss and make findings as to each of the § 3553(a) factors if the record makes clear the

court took the factors into account in sentencing.” United States v. Cooper, 437 F.3d 324,

329 (3d Cir. 2006). Nevertheless, “we certainly always demand more than a rote

recitation of the § 3553(a) factors if at sentencing either defendant or the prosecution

properly raises a ground of recognized legal merit (provided it has a factual basis) and the

court fails to address it.” Tomko, 562 F.3d at 567 (internal quotations and citation

omitted). Here, far from providing, as the Government claims, “an empty litany of the §

3553(a) factors,” (Appellant’s Br. 29) the District Court addressed the § 3553(a) factors at
5

length, focusing on Moore’s lack of significant criminal history, his upbringing, his

serious gambling problem, his ability to always provide for his family, his cooperation

with the Government, available sentencing alternatives to imprisonment, and sentencing

statistics for other convicted tax criminals. Therefore, the District Court’s explanation

was “sufficient for us to see that the particular circumstances of the case have been given

meaningful consideration within the parameters of § 3553(a).” United States v. Levinson,

543 F.3d 190, 196 (3d Cir. 2008). Accordingly, the District Court committed no

significant procedural error at sentencing.

B. Substantive Reasonableness

The Government’s objection to the substantive reasonableness of Moore’s

sentence is essentially a plea for us to weigh the § 3553(a) factors differently than the

District Court did. According to the Government, doing so would cause us to arrive at a

sentence that includes a term of imprisonment. But on sentencing review, “[w]e do not

seek to second guess. Given the widely recognized institutional advantages that district

courts have in access to and consideration of evidence, we would be foolish to try.” 

Levinson, 543 F.3d at 196. Instead, “if the district court’s sentence is procedurally sound,

we will affirm it unless no reasonable sentencing court would have imposed the same

sentence on that particular defendant for the reasons the district court provided.” Tomko,

562 F.3d at 568. Here, based on the comprehensive reasons that the District Court

provided, we cannot conclude that the District Court abused its discretion in sentencing

Moore to 5 years of probation, a $25,000 fine, and a $100 special assessment. In other
6

words, “the record demonstrates the District Court’s thoughtful attempt to tailor the

off-the-rack Guidelines recommendations into a sentence that fits [the defendant]

personally.” Id. at 575. Accordingly, we will affirm Moore’s sentence.