US v. John Moore, No. 13-4411 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4411 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN MOORE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever, III, Chief District Judge. (7:10-cr-00147-D-1) Submitted: March 28, 2014 Decided: May 8, 2014 Before GREGORY and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Moore was charged with carjacking, 18 U.S.C. § 2119 (2012) (Count One), using and carrying a firearm, and possessing the firearm, in furtherance of the carjacking, 18 U.S.C. § 924(c) (2012) (Count Two), and possessing a firearm after having been convicted of a felony, 18 U.S.C. §§ 922(g)(1), 924 (2012) (Count Three). Moore pled guilty to Count Three, but proceeded to trial on Counts One and Two. guilty on both counts. The jury found Moore The court sentenced Moore to 180 months imprisonment on Count One, 120 months on Count Two, and sixty months on Count Three, to run consecutively, for a total of 360 months imprisonment. On appeal, Moore challenges the sufficiency of the evidence to convict him of carjacking and carrying a firearm in furtherance of carjacking. that the sentencing court erred in denying reduction for acceptance of responsibility. He also argues him a two-level We affirm. Moore first contends that he did not commit a federal carjacking and therefore the jury s verdict on Counts One and Two cannot be sustained. He argues that the Government did not prove that he specifically intended to cause death or serious bodily injury at the time the vehicle was taken and that Moore did not steal the car in the victim s presence using force and violence or intimidation. 2 We review de novo a district court s defendant s motion for judgment of acquittal. Alerre, 430 F.3d challenging burden. the 681, 693 sufficiency (4th of Cir. the denial of a United States v. 2005). evidence A faces defendant a heavy United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citation and internal quotation marks omitted). We must sustain a jury verdict if there is substantial evidence to support it, viewing the evidence in the light most favorable to the Government, assuming the credibility of the evidence, and drawing all favorable inferences from the evidence. United States v. Penniegraft, 641 F.3d 566, 571-72 (4th Cir. 2011). The evidence reasonable supporting finder of a fact conviction could is accept substantial a evidence] [the if as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Alerre, 430 F.3d at 693 (citation and internal quotation marks omitted). To prove the offense of carjacking, in violation of 18 U.S.C. § 2119, the Government was required to establish that the defendant (1) with intent to cause death or serious bodily harm (2) took a motor vehicle (3) that had been transported, shipped or received person or in interstate presence intimidation. of or foreign another (5) by commerce force (4) and from violence the or United States v. Foster, 507 F.3d 233, 246-47 (4th Cir. 2007) (citation and internal quotation marks omitted). 3 We have reviewed the transcript of the jury trial and we conclude that sufficient evidence supports the jury s verdict on Counts One and Two. Next, Moore argues that, even though he went to trial, the district court should have awarded acceptance of responsibility reduction. challenges to a court s him sentencing a In two-level considering application of the Guidelines, this Court reviews factual determinations for clear error and legal conclusions de novo. United States v. Burgess, 684 F.3d 445, 454 (4th Cir.), cert. denied, 133 S. Ct. 490 (2012). of an The determination of whether a defendant is deserving acceptance factual issue standard. and of responsibility thus reviewable adjustment under a is clearly clearly a erroneous United States v. White, 875 F.2d 427, 431 (4th Cir. 1989). Section 3E1.1 of the Guidelines Manual provides for a two-level reduction for a defendant who clearly demonstrates acceptance of responsibility for his offense. United States v. Jeffery, 631 F.3d 669, 678 (4th Cir. 2011) (internal quotation marks omitted). This Court has noted that [a]lthough the reduction is not intended to apply to a defendant who puts the government to its burden of proof at trial, . . . going to trial does not automatically preclude the adjustment. Id. (internal quotation marks and citation omitted); see USSG § 3E1.1 cmt. 4 n.2. In rare situations, such as when the defendant goes to trial to assert and preserve issues that do not relate to factual guilt, . . . an adjustment may still be appropriate. Jeffery, 631 F.3d at 678 (internal quotation marks omitted). The sentencing judge is in a unique position to evaluate a defendant s acceptance of responsibility, and thus . . . the determination of the deference on review. sentencing judge is entitled to great Elliott v. United States, 332 F.3d 753, 761 (4th Cir. 2003) (internal quotations and brackets omitted). Although Moore pled guilty to Count Three, he denied essential factual elements of his guilt as to Counts One and Two and put the Government to its burden of proof. not present the rare circumstances in This case does which a defendant has clearly demonstrated acceptance of responsibility despite going to trial. clearly We therefore find that the district court did not err in denying an adjustment for acceptance of responsibility. Based judgment. legal before on the foregoing, we affirm Moore s criminal We dispense with oral argument because the facts and contentions this Court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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