United States v. Keith Moore
2012 U.S. App. LEXIS 13901
| 8th Cir. | 2012Background
- Moore appeals a 264-month sentence for attempting to manufacture methamphetamine, being a felon in possession of a firearm, and attempting to escape from custody.
- District court applied base offense level 34 under §4B1.4(b)(3) for firearm in connection with a controlled-substance offense; concluded the firearm could facilitate the drug offense.
- Moore received a two-level acceptance of responsibility reduction; did not receive a further 3E1.1(b) reduction due to lack of government motion.
- Moore’s criminal history category VI was based on armed career criminal status under §924(e)(1) and §4B1.4(a)(3).
- District court sentenced Moore to 264 months, comprised of 240 months for drug and firearm counts plus 60 months for escape, with 24 months to run consecutively; judge stated a guideline range sentence would be sufficient but not greater than necessary.
- Court remanded to explain the two-month upward variance from the 210–262 month Guideline range.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether base level 34 was correct for firearm in connection with offense. | Moore argues lack of connection since materials were for personal use. | Moore contends connection standard requires greater proof when drugs are for personal use. | No error; the firearm was connected and could have facilitated the offense. |
| Whether denial of 3E1.1(b) adjustment for timely guilty plea notice was error. | Moore should receive one-point reduction for timely notice. | Government motion omitted; timing did not permit efficient resource allocation. | No clear error; district court reasonably refused the adjustment. |
| Whether Rule 32(h) notice was required for the upward variance. | Rule 32(h) requires advance notice for departures, not variances. | District court imposed a variance, not a departure; notice not required. | No error; Rule 32(h) applies to departures, not variances. |
| Whether the upward two-month variance from the Guidelines range was adequately explained. | Sentence exceeded the range by two months without explanation. | Court intended a within-range sentence or variance without explicit explanation. | Remanded for explanation of the variance; substantive reasonableness not decided. |
Key Cases Cited
- United States v. Howard, 413 F.3d 861 (8th Cir. 2005) (guideline interpretation and facts review standard)
- United States v. Regans, 125 F.3d 685 (8th Cir. 1997) (‘in connection with’ standard for firearm in drug offense)
- United States v. Dalton, 557 F.3d 586 (8th Cir. 2009) (connection when drug user carries drugs in public with a firearm)
- United States v. Smith, 422 F.3d 715 (8th Cir. 2005) (acceptance-of-responsibility adjustment and government motion relation)
- United States v. Richart, 662 F.3d 1037 (8th Cir. 2011) (upward variance must be sufficiently compelling to justify deviation)
- United States v. Foy, 617 F.3d 1029 (8th Cir. 2010) (variance vs. departure distinction for Rule 32(h) notice)