United States v. Moore

In United States v. Moore, No. 23-30573 (5th Cir. July 22, 2024) (unpublished), the Fifth Circuit rejected Moore’s argument that his Sentencing Guidelines criminal history points were incorrectly calculated, and it affirmed his 125-month sentence for federal robbery under 18 U.S.C. § 1951(a).

Background: “As relevant here, the Presentence Investigation Report (PSR) assessed two criminal history points each for two juvenile offenses: (1) Moore’s June 2013 theft offense, … and (2) Moore’s April 2014 criminal mischief offense.”

“For each offense, the PSR noted that Moore had been released on probation and then had his probation revoked—twice on the [2013] offense and once on the [2014] offense. Although the relevant revocations for both offenses resulted in one confinement at a juvenile camp, the PSR separately counted the [2013] and [2014] offenses for criminal history purposes.”

Before sentencing, Moore objected, arguing that he should receive zero criminal history points (instead of two) for the 2013 offense. The district court overruled that objection.

Issue: On appeal, Moore took the opposite approach: he argued that he should not have received any points for the 2014 offense. He asserted that the district court effectively double-counted his probation revocation by assigning points to both the 2013 and 2014 crimes. Because Moore did not object to the 2014 points in the district court, the Fifth Circuit applied plain-error review. Under that standard, it found “no clear or obvious error.”

Under USSG § 4A1.2 cmt., n.11, “Where a revocation applies to multiple sentences, and such sentences are counted separately . . . [courts should] add the term of imprisonment imposed upon revocation to the sentence that will result in the greatest increase in criminal history points.” For instance, the single-counting rule applies when “probation was revoked on both sentences as a result of the same violation conduct.” Id.

Here, however, Moore’s two probation sentences were revoked for different violation conduct. The Fifth Circuit recognized that on this issue, its “precedent is not settled.” Guideline 4A1.2 and note 11 explain how to handle a single revocation applied to multiple sentences, but they do not say how to resolve multiple separate probation revocation resulting in a single term of imprisonment. And “[o]ther circuits to address this issue have also reached differing conclusions.”

Therefore, Moore failed under plain-error review because “any error is not plain if this circuit’s law remains unsettled and the other federal circuits have reached divergent conclusions.” United States v. Jones, 88 F.4th 571, 574 (5th Cir. 2023) (per curiam) (internal quotation marks and citation omitted).