United States v. Moore

United States of America Plaintiff - Appellee v. Lamaar Moore Defendant - AppellantUnited States of America Plaintiff - Appellee v. Kearnice C. Overton, also known as Kearnice Overton Defendant - AppellantUnited States of America Plaintiff - Appellee v. Angelo Johnson Defendant - Appellant

No. 18-3026

No. 18-3474

No. 18-3732

United States Court of Appeals For the Eighth Circuit

Submitted: September 27, 2019

January 7, 2020

Appeals from United States District Court for the Southern District of Iowa - Davenport

[Unpublished]

Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.

PER CURIAM.

Lamaar Moore, Kearnice Overton, and Angelo Johnson pleaded guilty to offenses related to a drug conspiracy. They challenge their sentences on appeal, arguing that the district court¹ erred in calculating their offense levels under the U.S. Sentencing Guidelines (U.S.S.G. or Guidelines). Overton also argues that he is entitled to resentencing because the government breached the plea agreement. We affirm.

I. Lamaar Moore

Moore pleaded guilty to conspiracy to manufacture, distribute, and possess with intent to distribute at least 100 kilograms of a mixture and substance containingmarijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and possession with intent to distribute less than 50 kilograms of a mixture and substance containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Before sentencing, Moore objected to the presentence report's recommendation that his base offense level be increased by three for his aggravating role in the offense, see U.S.S.G. § 3B1.1(b), and by two for maintaining a premises for the purpose of manufacturing or distributing controlled substances, see U.S.S.G. § 2D1.1(b)(12). The district court overruled Moore's objections and applied the enhancements. Moore's total offense level was 30, his criminal history category was III, and his Guidelines sentencing range was 121 to 151 months' imprisonment. The district court varied downward, imposing a 108-month sentence on the conspiracy count and a concurrent 60-month sentence on the possession count.

Moore argues that the district court clearly erred in finding that he had acted as a manager or supervisor in the drug conspiracy. See United States v. Alcalde, 818 F.3d 791, 794 (8th Cir. 2016) (standard of review). Guidelines § 3B1.1(b) instructs the district court to apply a three-level increase "[i]f the defendant was a manager or supervisor . . . and the criminal activity involved five or more participants or was otherwise extensive." We have said that a defendant may be subject to the enhancement even if he managed or supervised only one participant in a single transaction. United States v. Irlmeier, 750 F.3d 759, 764 (8th Cir. 2014). A witness testified at Moore's sentencing hearing that he once overheard Moore direct his girlfriend to obtain marijuana from a certain location and sell it at a certain price to Moore's customer. Moore acknowledges that his girlfriend sometimes sold marijuana for him when he was traveling, but he contends that he did not control her actions because they were participants in a joint enterprise. The district court's finding to the contrary is not clearly erroneous, however, because the evidence permits a finding that Moore managed or supervised his girlfriend with respect to at least one transaction.

Moore next argues that the district court clearly erred in finding that he maintained his residence for the purpose of distributing a controlled substance. See United States v. Miller, 698 F.3d 699, 705 (8th Cir. 2012) (standard of review). Moore shared the residence with his girlfriend. He claims that it was primarily their family home and that there is "little evidence that the couple used the residence for the business itself." Moore's Br. 11. Guidelines § 2D1.1(b)(12) instructs the district court to apply a two-level increase for "maintain[ing] a premises for the purpose of manufacturing or distributing a controlled substance." For the enhancement to apply, drug distribution "need not be the sole purpose for which the premises was maintained, but must be one of the defendant's primary or principal uses for the premises, rather than one of the defendant's incidental or collateral uses for the premises." U.S.S.G. § 2D1.1 cmt. n.17. We have held that the enhancement applies "when a defendant uses the premises for the purpose of substantial drug-trafficking activities, even if the premises was also [the] family home at the times in question." Miller, 698 F.3d at 707.² Moore conceded that drug transactions occurred at his residence. When the apartment was searched, officers seized nine empty one-pound vacuum seal bags with marijuana residue, approximately two pounds of high-grade marijuana, digital scales, and clear plastic baggies, which the district court found to be "substantial indicia of high levels of trafficking at the home." We conclude that the district court did not clearly err in finding that Moore maintained his residence for the purpose of distributing marijuana.

II. Kearnice Overton

Overton pleaded guilty to conspiracy to manufacture, distribute, and possess with intent to distribute 100 grams and more of a mixture and substance containing heroin and 100 kilograms and more of a mixture and substance containing marijuana,in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851. In determining that Overton's base offense level was 32, the presentence report attributed quantities of heroin, marijuana, and cocaine to him. Overton objected, arguing that his plea agreement prevented the government from presenting evidence of cocaine distribution and that any cocaine distribution was not relevant conduct under U.S.S.G. § 1B1.3. The district court overruled Overton's objections and determined that his base offense level was 32, that his total offense level was 37, that his criminal history category was VI, and that his Guidelines sentencing range was 360 months' to life imprisonment. The district court varied downward and imposed a 300-month sentence.

Overton first argues that the district court erred in concluding that the government did not breach the plea agreement by presenting evidence of cocaine distribution. He claims that the government stipulated in the plea agreement that the conspiracy involved only heroin and marijuana. We review de novo issues concerning the interpretation and enforcement of a plea agreement. United States v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004). "Plea agreements are contractual in nature, and should be interpreted according to general contract principles." Id.

Although the plea agreement specified heroin and marijuana as types of drugs that would be used to calculate Overton's Guidelines sentencing range, it did not exclude other types of drugs from that calculation. Overton admitted that the object of the conspiracy was to "manufacture, distribute, and possess with intent to distribute controlled substances including marijuana and heroin." The plea agreement stated that the advisory Guidelines sentencing range would be "based upon factors determined to be present in the case, which include, but are not limited to . . . [t]he type and quantity of drugs involved in the offense." The parties did not stipulate to Overton's base offense level, but instead agreed "that the conspiracy involved more than 100 grams of heroin and more than 100 kilograms of marijuana the exact amount of drugs to be attributed to the defendant (above the amount admitted here) will be determined by the court at the time of sentencing based upon U.S.S.G. § 1B1.3."Moreover, the plea agreement reserved to both parties the right to "make whatever comment and evidentiary offer they deem appropriate at the time of sentencing . . . , provided that such offer or comment does not violate any other provision of this Plea Agreement." We conclude that the government did not violate any provision of the plea agreement when it presented evidence that Overton distributed cocaine. See United States v. Leach, 491 F.3d 858, 864 (8th Cir. 2007) (holding that the government did not breach the plea agreement because it "did not advocate for anything inconsistent with the stipulations of the plea agreement; it advocated for something that was not resolved by the plea agreement").

We disagree with Overton's contention that our decisions in United States v. Lara, 690 F.3d 1079 (8th Cir. 2012), and United States v. DeWitt, 366 F.3d 667 (8th Cir. 2004), control here. In those cases, "we held that the Government breached a plea agreement when it stipulated to a drug quantity and corresponding base offense level and then initiated an effort at the sentencing hearing to obtain a higher drug quantity and base offense level." See United States v. Noriega, 760 F.3d 908, 911 (8th Cir. 2014). In this case, the government did not stipulate to a drug type or quantity or to a base offense level. The parties merely agreed that the conspiracy involved at least 100 grams of heroin and 100 kilograms of marijuana—the drug types and quantities charged in the indictment—and allowed the district court to determine the drugs and drug quantities to be attributed to Overton at sentencing. See United States v. Guardado, 863 F.3d 991, 993 (8th Cir. 2017) (holding that the government did not breach the plea agreement when it urged the district court to sentence the defendant based on a quantity of drugs greater than the amount to which the defendant stipulated in the factual basis statement of the plea agreement, because the plea agreement did not specify the amount of drugs that would be used to calculate the defendant's sentencing range and it allowed both parties "to present at sentencing any evidence and argument on issues not explicitly agreed to or decided in the document").

Overton next argues that the district court erred in determining his base offense level. He contends that the district court should...