2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-14-2011 

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w . v i l l a no v a . e du/thir dc ir c uit_2011/225NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 10

- 1736

_____________ UNITED STATES OF AMERICA,

v. EARL MOORE, also known as JER OME MIXSON also known as REDBONE, Earl Moore, Appellant

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 08

- cr - 00 730

- 001 ) District Judge: Hon. Juan R. Sanchez

_______________ Submitted Under Third Circuit LAR 34.1(a ) November 9 , 2011 Before: SCIRICA, SMITH & JORDAN, Circuit Judges

. (Filed : November 14, 2011 )

_______________ OPINION OF THE COURT

_______________2 JORDAN, Circuit Judge

. Earl Moore appeals the judgment of the United States District Court for the Eastern District of Pennsylva nia sentencing him to 360 months ’ imprisonment based on his conviction for attempt ing to possess with intent to distribute five kilograms of cocaine, in vi olation of 21 U.S.C. § 841(a) . For the following re asons, we will a ffirm

. I. Background
A. Facts In September 2008, Earl Moore met Javier Rivas, a government informant , at a carwash at 7th and Mifflin Streets in Philadelphia, Pennsylvania

. During the meeting , Rivas informed Moore that he had “ some kilos [of cocaine] com ing in” and asked Moore
if h e was interested in purchasing any

. Moore told Rivas that he was interested , and the two men exchanged telephone numbers

. Thereafter, on September 19, 2008, Moore and Rivas spoke on the tele phone. During that conversation, which was recorded by the police, they agreed to meet at a McDonald’s restaurant on Oregon Avenue. When the men arrived at McDonald’s , Moore got into Rivas’ s car, and Rivas informed Moore that he expected to receive a few kilograms of cocaine in one week

. Moore said that , if Rivas would supply him with the cocaine, he could sell it. On September 26, 2008, Moore called Rivas to inquire about the status of their agreement

. Rivas assured Moore that he was preparing to leave town to pick up a few kilogram s of cocaine , and that he planned to bring it back to Philadelphia.3 On October 1, 2008, Rivas notified Moore that he had returned with the cocaine and instructed Moore to again meet him at the McDonald ’ s on Oregon Avenue

. When the men met at McDonal d ’s , they discussed how Moore could earn a profit by purchasing and selling cocaine . In particular, Moore asked Rivas how much he could earn from the transaction, and Rivas told him that he could earn $1,000.00 for selling each kilogram of cocaine. Later th at day, Moore called Rivas requesting three kilograms of cocaine , ] and told Rivas that he needed additional time to get the money from his associates so that he could complete the transaction

. Still later , Moore called and increased his request to five
ki lograms of cocaine. Rivas agreed to de liver five kilograms and told Moore to call him when he had received the money , so that they could complete the deal.
T hat evening, w hile Moore was at his residence, two men arrived, driving separately in a white A cura and a black Lexus. Each man took a bag from the trunk of his car and brought it into Moore’s house

. Moore then called Rivas to tell him that he planned to drive a white Acura to their meeting to complete the transaction they had been discussing

. Moore left his house carrying a black bag, in the Acura, and drove east on Winton Street

. T he two men who had been at his house followed Moore in another car

. When the Acura reached Oregon Avenue , a police cruiser ac tivated its headlights and pulled the Acura over in a Dunkin’ Donuts parking lot

. Philadelphia p olice o fficers exited the patrol car and app roached the Acura

. However, before they reached it , Moore fled the parking lot and drove southbound on Oregon Avenue at high speed

. During the ensuing4 chase , Moore crossed over to the opposite side of the street , against oncoming traffic , endangering other drivers and pedestrians

. Eventually, Moore turned north on 11th Street towards Moyamensing Avenue, where he parked the Acura. H e got out of the c ar, took two bags from the passenger side, and began walking eastbound on Moyamensing

. Soon after Moore left the Acura, however, he was arrested by police officers

. When the officers searched Moore ’s bags , the y discovered $165,074.00 in cash, and a piece of paper which contained the number “33” written five times in a column. Moore was later released from custody and called
R ivas to tell him what happened

. He informed Rivas that he was captured by local police office rs and that he t old the officers he h ad found two bags of cash at 2 nd and Market Streets.
B. Guilty Verdict and Sentencing On January 11, 2010, a jury found Moore guilty of one count of attempt ing to possess with the intent to distribute five or more kilograms of cocaine

. The District Co urt held a sentencing hearing on May 26, 2010. At the sentencing hearing, Moore argued that a sentence of 360 m onths to life imprisonment was “draconian” because he was a “small

- time drug dealer” who was lured into committing a felony drug offense by a
go vernment agent. 1

1 Notably, although Moore argued that the government lured him into taking part in a deal to sell cocaine, he does not allege entrapment as a defense to his conviction

. (App. 19.) The g overnment argued that a sentence within the range prescribed by the Sentencing Guidelines was appropriate . T he g overnment emphasized that Moore acquired a substantial amount of money within a few days, drove towards the5 location where he intended to purchase the cocaine, and fled fr om police officers in a dangerous and reckless manner. In determining Moore’s sentence, the District Court adopted the guidelines calculations from a pre - sentence report (“PSR”) , concluding that the maximum term of imprisonment was a life sentence and that the minimum term was twenty years

. T he District Court set the base offense lev el at 32, added two levels for Moore’s prior conviction for obstruction of j ustice, and added three levels due to Moore’s status as a career offender. The Court then examined the factors outlined in 1 8 U.S.C. § 3553(a)

. With respect to the nature and circumstances of the offens e, the District Court noted that Moore agreed to purchase five kilograms of cocaine fo r $165,000.00, led police officers on a high

- speed chase to avoid arrest, and lied to police officers about how he had obtained the $165,000.00 in cash. T he District Court also examined Moore’s personal characteristics, including his family background, em ployment history, and background of drug use and treatment

. Finally, t he Court examined Moore’s criminal history in detail, including his prior convictions for drug

- related off enses, a weapons possession offense, and resisting arrest. Based upon the in formation available in the PSR, and an analysis of the § 3553(a) factors , the Court determined that a sentence within the range prescribed by the
g uidelines was appropriate . It sentenced Moore to 360 months’ imprisonment. T he Court noted that , based on t he offense, Moore’s criminal history, and the circumstances surrounding his arrest , a downward variance from the guidelines “[would] undermine the seriousness of the offense, ” and “would not promote respect for the law.” (App. 43

. )6 The Court also determi ned that Moore’s “ false testimony ... under mines our system of justice,” and that a sentence within the g uidelines’ range would “assure[] the congressional goal of a fair, proportionate and uniform system of sentencing defendants, who are similarly situated

. ” ( App. 43

- 44

. ) Moore timely appealed his conviction and sentence

. II. Discussion 2
A. Moore’s Conviction Moore argues that the government failed to present sufficient evidence for the jury to find him guilty of attempting to possess with intent to d istribute five kilograms of

c ocaine

. Specifically, he asserts that the g overnment failed to prove that he took a “substantial step” towards the commission of a crime because he did not actually transfer the $165,000 .00 to Rivas

. According to Moore , the o nly evidence th e g overnment put forth at trial was severa l recorded conversations between Rivas and Moore , which he says is insufficient to sustain his conviction

. “We apply a ... deferential standard of review when deciding whether a jury verdict rests o n legally sufficient evidence.” United States v. Dent , 149 F.3d 180, 187 (3d Ci r. 1998). W e do not “weigh the evidence or ... determine the credibility of the witnesses.” Id. (quoting United States v. Voight , 89 F.3d 1050, 1080 (3d Cir.), cert. denied , 51 9 U.S. 1047 (1996) ( citation omitted)). Instead, we “view the evidence in the light most favorable to the government, and will sustain a verdict if any rational trier of

2 We have jurisdiction over Moore’s appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231.7 fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal citations and quotation marks omitted). As a result, “a claim of insufficiency of the evidence places a very heavy burden on an appellant.” United States v. Gonzalez , 918 F.2d 1129, 1132 (3d Cir. 1990) (quoting United States v. Losada , 67 4 F.2d 167, 173 (2d Cir.), cert. denied , 457 U.S. 1125 (1982)). We follow t he Model Penal Code’s (“MPC”) approach for determining whether a defendant is guilty of an attempt ed crime

. United States v. Hsu , 155 F.3d 189, 203 n.19 (3d Cir. 1998 ). Under tha t approach, a person is guilty of criminal attempt “‘if, acting with the kind of culpability otherwise required for commission of the crime, he ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or o mission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.’” United States v. Tykarsky , 446 F.3d 458, 469 (3d Cir. 2006) (quoting Hsu , 155 F.3d at 202

- 03 (quoti ng and adopting MPC § 5.01(1)(c) (1985 ) ) )

. Here, Moore was convicted under 21 U.S.C. § 841(a)(1), which provides that “it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispe nse, a co ntrolled substance. ” 21 U.S.C. § 841(a)(1). Thus, in order to sustain a convic tion for criminal attempt, the g overnment has the burden of proving that Moore, “knowingly” or “intentionally” performed an act that constitutes a substantial step towards poss essing cocaine with the intent to distribute it

. A substantial step is more than “mere preparation,” but less than the “ last act necessary” to commit the actual substantive offense. United States v. Yousef , 327 F.3d8 56, 134 (2d Cir. 2003) (internal quotat ion marks omitted) ; cf. MPC § 5.01(2) (1985) (noting that a defendant may take a substantial step by merely “reconnoitering the place contemplated for the commission of the crime,” or “possess[ing] materials to be employed in the commission of the crime”)

. At a minimum, it requires “some appreciable fragment of the crime in progress.” United States v. Hadley , 91 8 F.2d 848, 853 (9th Cir. 1990) (citation and internal quotation marks omitted)

. W hether an individual takes a substantial step in the commission of a criminal offense ultimately depends “on the particular factual context of each case.” United States v. Crowley , 318 F.3d 401, 408 (2d Cir. 2003) (quoting United States v. Manley , 632 F.2 d 978, 988 (2d Cir. 1980)).
T he record here contains sufficient evidence to support Moore’s conviction for attempt ing to possess with intent to distribute coca ine

. First, the record is replete with

e vidence that Moore knowingly and intentionally agreed to purchase five kilograms of cocaine for distribution . On Septe mber 19, 2008 , in a recorded conversation, Moore and Rivas discussed Moore being willing and able to sell three kilograms of cocaine

. 3

3 In a recorded conversation, Moore told Rivas: “I mean, like, I said, if I can get the money, people like, you know, I got the things, it’s a real wrap and I can show them the [cocaine], they’ll buy off me, I’m dead serious.” (App. 344

- 45.) One week later, Moore called Rivas, inquiring about the status of the deal a nd asking how soon the two men c ould consumm ate the transaction. In addition, on October 1, 2008, Moore called Rivas to request three kilograms o f cocaine and then increased his request9 to five kilograms

. Those conversations demonstrate Moore’s criminal intent , and a reasonable jury could conclude that Moore acted accordingly

. Second , Moore undoubtedly took a “ substantial step in the commission of [a] crime.” United States v. Manzo , 636 F.3d 56, 66 (3d Cir. 2011) (citation omitted)

. He calle d Rivas asking to purchase five kilograms of cocaine, c ollected $165,074 .00 in cash to purchase the cocaine , and drove towards the location where he planned to consummate the drug deal . When the police eventually captured Moore, they found him with the $165,000.00 in cash and a note with what appeared to be a drug tally sheet. Those facts demonstrate that, on October 1, 2008, Moore was in the process of purchasing (a nd eventually selling) five kilograms of cocaine , before the officers apprehended him. By obtaining the funds necessary to purchase the cocaine and driving to the site of the plann ed transaction, Moore was taking “ substan tial step [s] in the commission of [a] crime.” Tykarsky , 446 F.3d at 469.
Moore ’s argument that his actions did not constitute a “substantial step” because the policemen apprehen ded him before he arrived at the transaction site is unavailing. In order to prove that the defendant took a substantial step, the g overnment need not prove that he or she performed “ the last act necessary” to consummate the crime

. Yousef , 327 F.3d at 13 4 (citation omitted) ; see United States v. Barnes , 230 F.3d 311, 315 (7th Cir. 2000) (“A substantial step is something more than mere preparation, but less than the last act necessary before the actual commission of the substantive crime.”); United States v. Pratt , 351 F.3d 131, 137 (4th Cir. 2003) (finding that defendant took “substantial step” to possess with intent to distribute illegal drugs when government offered evidence of10 recorded conversations betwee n defendant and co

- conspirator and evidence that defendant promised to serve as a “middleman” in drug transaction)

. Here, the
g overnment produced evidence that Moore pl anned the purchase and sale of five kilograms of cocaine , a nd attempted to execute his plan . Although he ultimately failed to perform the “last act necessary” to achieve his criminal objective, his actions certainly moved beyond the point of mere preparation and into the realm of criminal attempt

. B. Moore’s Sentence We review a criminal sentence for abuse of discretion. United St ates v. Grober , 624 F.3d 592, 599 (3d Cir. 2010). In reviewing a criminal sentence, our role is typically
two

- fold. First, we check that the district court committed no significant procedural error in arriving at its decision

. United States v. Wise , 515 F.3d 2 07, 217 (3d Cir. 2008). Second, “ if we determine that the district court has committed no significant procedural error, we then review the substantive reasonableness of the sentence under an abuse

- of

discretion standard, regardless of whether it fa lls within the Guidelines range. ” Id. at 218 (citing Gall v. United States , 552 U.S. 38, 51 (2007) ). Although we may consider the extent of a district court’s deviation from the Guidelines range, we “must give due deference to the district court’s decisi on that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall , 552 U.S. at 51. “If the sentence is within the Guidelines range, [we] may, but [are] not required to, apply a presumption of reasonableness.” Id

. “The fact that [we] might reasonably have concluded that a different sentence [is] appropriate is insufficient to justify reversal of the district court.” Id.11 Moore does not challenge the procedural foundation of his sentence so we will proceed direct ly to what he does arg ue, namely, that his thirty

- year sentence is substantively unreasonable . Specifically, Moore a sserts that , in determining the duration of his sentence, the District Court should ha ve considered the fact that he was “a small time drug dealer ,” who was “enc ouraged by a government agent to gather money from others in an effort to lure them into purchasin g a large amount of cocaine.” (Appellant’s Opening B r. 34

- 35

. ) In addition, Moore argues that his thirty

- year sentence “is beyond any rational scheme desig n ed to impose punishment,” ( i d . at 35), and that the District C ourt “overrepresent [ed]” his criminal history, ( i d . at 36). We disagree. As previously mentioned, if a sentence is within the range of punishme nt prescribed it may be presume d to be substantive ly reasonable. Gall , 552 U.S. at 51. Here, because of Moore’s extensive criminal history ( e.g. , his prior conv ictions for various drug and firearm offenses, and his conviction for resisting arrest ), the circumstances surrounding his apprehension ( e.g. , h is attempt to evade arresting officers by leading them on a high

- speed chase throughout the city , and his subsequent decision to mislead government agents ), and the magnitude of the crime he attempted to commit (dealing in a multi

- kilo quantity of cocaine) , that presumption is in order

. In an attempt to rebut t he presumption, Moore argues that he is a “small

- time drug dealer,” and claims that the District Court accorded excessive weight to his role in the offense and his criminal history

. (App. 19

. ) How ever, w ith respect to Moore’s first argument, we find persuasive the District Court ’s observation that “a minnow or a minor player does not raise $165,000.00 in a short period of time, if he’s not deeply involved ...12 in drug trafficking.” (App. 42

. ) As to Moore’s second argu ment, “a district court’s failure to give mitigating factors the weight a defendant contends they deserve [does not] render [] the sentence unreasonable” or indicate an abuse of discretion. United States v. Bungar , 478 F.3d 540, 546 (3d Cir. 2007). Ultimately , the fact th at the District Court gave significant weight to Moore’s criminal history and his role in the deal, and little weight to his claimed status as a “small time dealer , ” does not make his sentence unreasonable. T he Distric t C ourt did not abuse its discretion by sentencing Moore to 360 months’ imprisonment.
III. Conclusion For the foregoing reasons, we affirm the District Court’s judgment.