United States v. Norvell Moore
2017 WL 1018345
7th Cir.2017Background
- In 2010 Moore was charged with carjacking (18 U.S.C. § 2119), using/carrying a firearm in relation to a crime of violence (§ 924(c)(1)(A)), and being a felon in possession (§ 922(g)(1)).
- First trial (2013): jury convicted Moore on § 924(c) and § 922(g) but deadlocked on carjacking; court imposed a 240-month sentence composed of consecutive 120-month terms for each conviction.
- On appeal the Seventh Circuit affirmed the § 922(g) conviction but vacated the § 924(c) conviction and remanded (United States v. Moore, 763 F.3d 900). A second trial on the § 924(c) and carjacking charges resulted in acquittals.
- At re‑sentencing on the affirmed § 922(g) conviction, the government for the first time argued Moore qualified as an Armed Career Criminal under the ACCA (18 U.S.C. § 924(e)), making the statutory minimum 180 months; the probation officer adopted that view and recalculated Guidelines (262–327 months).
- Judge Kocoras re‑sentenced Moore to 240 months on the § 922(g) conviction (above the 180‑month ACCA minimum), rejecting Moore’s arguments that the court was bound to reimpose the prior 120‑month term and that the government had waived the ACCA enhancement.
Issues
| Issue | Plaintiff's Argument (Moore) | Defendant's Argument (Government / Court) | Held |
|---|---|---|---|
| Whether district court on remand was bound to reimpose the 120‑month term previously allocated to the § 922(g) conviction | The original 120‑month term was part of an affirmed sentence for § 922(g); after the other conviction was vacated and Moore was acquitted on retrial, the court must reimpose the same 120 months on § 922(g) | The original 120‑month term was part of a sentencing package tied to two convictions; vacatur of the companion conviction unbundled the package and permitted de novo resentencing on the remaining conviction | Court: Not bound; district court may resentence de novo on § 922(g) after vacatur of the companion conviction |
| Whether the government waived the ACCA enhancement by not invoking it at the original sentencing | Government’s failure to raise ACCA at first sentencing barred invoking the ACCA later on remand | ACCA is a statutory command affecting statutory minima/maxima; court must apply it regardless of earlier oversight and government did not intentionally waive it | Court: No waiver; ACCA applies and court properly considered it |
| Whether the ACCA applies to Moore’s prior robberies (i.e., whether they are violent felonies) | Moore argued his prior Illinois robbery convictions do not categorically qualify as ACCA violent felonies | Government and district court found the robberies qualify as violent felonies under ACCA; Moore abandoned that argument on appeal | Court: ACCA applies — Moore abandoned challenge to categorical qualification |
| Whether the 240‑month sentence was procedurally or substantively unreasonable | Moore did not challenge substantive reasonableness beyond the two issues above | District court considered § 3553(a) factors, adopted PSR calculations, and imposed a below‑Guidelines 240‑month sentence to account for serious recidivism | Court: Sentence affirmed as reasonable and within judge’s discretion |
Key Cases Cited
- United States v. Moore, 763 F.3d 900 (7th Cir. 2014) (prior appeal affirming § 922(g) conviction and vacating § 924(c) conviction)
- United States v. Tello, 687 F.3d 785 (7th Cir. 2012) (remand limited to correcting discrete sentencing error distinguished)
- United States v. Shue, 825 F.2d 1111 (7th Cir. 1987) (unbundling sentencing packages on remand)
- United States v. Soy, 413 F.3d 594 (7th Cir. 2005) (district court discretion on resentencing after vacated convictions)
- United States v. Binford, 108 F.3d 723 (7th Cir. 1997) (sentencing discretion following vacatur of related convictions)
- United States v. Smith, 103 F.3d 531 (7th Cir. 1996) (court may correct mistaken sentencing calculations on resentencing)
- United States v. Cobia, 41 F.3d 1473 (11th Cir. 1995) (mandatory ACCA increases apply regardless of government’s affirmative request)
- United States v. Worthen, 842 F.3d 552 (7th Cir. 2016) (defendant cannot waive right to be sentenced within statutory limits)
- Rita v. United States, 551 U.S. 338 (2007) (presumption of reasonableness for within‑Guidelines sentences)