United States of America v. Lavern Moorer

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-2476
___________
UNITED STATES OF AMERICA
v.
LAVERN MOORER,
Appellant
________________________
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF DELAWARE
District Court Judge: The Hon. Sue L.
Robinson
(No. 01-CR-071)
___________
Argued: May 5, 2004
BEFORE: SLOVITER and FUENTES,
Circuit Judges,
and POLLAK, District Judge.*
(Opinion Filed: September 20, 2004)
___________
Gavin P. Lentz, Esq. [ARGUED]
David P. Heim, Esq.
Bochetto & Lentz, P.C.
Philadelphia, PA 19102
Counsel for Appellant
Edmond Falgowski
Assistant United States Attorney
District of Delaware
Elizabeth A. Olson [ARGUED]
Appellate Section, Criminal Division
United States Department of Justice
P.O. Box 899, Ben Franklin Station
Washington, DC 20044
Counsel for Appellee
_______________________
OPINION OF THE COURT
_______________________
FUENTES, Circuit Judge:
In October 2001, Appellant Lavern
Moorer was charged with possession with
the intent to distribute cocaine and
possession of a firearm. A year later,
Moorer pled guilty and was sentenced to a
* Honorable Louis H. Pollak, Senior
District Judge for the United States
District Court for the Eastern District of
Pennsylvania, sitting by designation.

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term of 120 months in prison. Factored
into this sentence was the District Court’s
decision to designate Moorer a “career
offender,” a designation arrived at by
including Moorer’s 1990 conviction for
aggravated assault. The principal issue on
appeal is whether Moorer’s 1990
conviction counts toward establishing his
career offender status, even though Moorer
was only 17 years old at the time. Because
we find that Moorer’s 1990 conviction is a
“prior felony conviction” for purposes of
career offender status, we affirm the
judgment of the District Court.
I. Background
The account of Moorer’s relevant
criminal history begins in 1989, at which
time he was serving a term of juvenile
confinement for possession with intent to
deliver cocaine. In an attempt to escape
from his juvenile detention, Moorer
assaulted a corrections officer, and was
convicted of this offense in New Jersey
Superior Court in May 1990. The court
sentenced Moorer to an indeterminate term
of incarceration (not to exceed five years)
at Yardville Youth Reception Center, a
facility housing older juveniles and
younger adults under the control of the
New Jersey Department of Corrections. In
1994, while still on parole for his 1990
conviction, Moorer was convicted of
possession with intent to deliver marijuana
and cocaine, both controlled substances,
within a school zone. Moorer was
sentenced to five years in prison for that
offense. Finally, in August 2001, Moorer
was arrested and charged with procuring,
with the intent to distribute, almost 6
kilograms of cocaine, and possession of a
.380-caliber semi-automatic pistol.
Moorer pled guilty to the 2001
offenses of possession with intent to
distribute more than 500 grams of cocaine
and unlawful possession of a firearm in
August 2002. Moorer’s Presentence
Investigation Report (“PSR”) initially
assigned him a criminal history category of
V. However, pursuant to U.S. Sentencing
G u i d e l i n e s M a n u a l ( h e r e in a f t e r
“U.S.S.G.”) § 4B1.1(a), the PSR dubbed
Moorer a “career offender:”
A defendant is a career offender if
(1) the defendant was at least
eighteen years old at the time the
defendant committed the instant
offense of conviction; (2) the
instant offense of conviction is a
felony that is either a crime of
violence or a controlled substance
offense; and (3) the defendant has
at least two prior felony convictions
of either a crime of violence or a
controlled substance offense.
Specifically, the PSR counted as Moorer’s
“two prior felony convictions” 1) his 1990
conviction for aggravated assault
committed while escaping from a juvenile
detention facility; and 2) his 1994
conviction for possession with intent to
deliver marijuana and cocaine within a
school zone. As such, Moorer’s criminal
history category was increased to VI. Id.
at § 4B1.1(b). Using an offense level of
31 for a Category VI offender, the District
Court calculated a sentence range of 188-

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235 months. The Court then granted a
downw ard departure for substantial
assistance to the government, resulting in
a final sentence of 120 months. Moorer
timely appealed. The primary issue on
appeal is whether Moorer’s 1990
conviction should have counted toward
career offender status.
II. Jurisdiction
The District Court had subject
matter jurisdiction pursuant to 18 U.S.C. §
3231. This Court has jurisdiction over the
District Court’s sentencing decision
pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
III. Standard of Review
We apply a plenary standard of
review over the D istrict Court’s
interpretation of th e S entenc ing
Guidelines. E.g., United States v. Lennon,
372 F.3d 535, 538 (3d Cir. 2004).
IV. Discussion
Moorer’s main argument on appeal
is that his 1990 conviction should not
count toward career offender status
because he was sentenced as a juvenile
rather than an adult.1 However, Moorer
does not contest that he was convicted as
an adult. Rather, Moorer contends that a
conviction is a “prior felony conviction”
under § 4B1.1(a) only if both 1) the
conviction occurs in an adult proceeding
(instead of in juvenile court), and 2) the
conviction results in an adult sentence.
Moorer asserts that his sentence for the
1990 conviction for aggravated assault was
served concurrently with a prior sentence
that he was already serving pursuant to a
juvenile adjudication, and was therefore a
juvenile sentence.
In our view, the Guidelines belie
Moorer’s premise that an adult conviction
must be accompanied by an adult sentence
to count toward career offender status.
The Guidelines offer the following
definition of “prior felony conviction” for
purposes of §4B1.1(a):
1 Moorer nominally presents a second
argument based on Due Process, but this
argument is merely a reiteration of his
claim that he should not be considered a
career offender because his 1990
conviction resulted in a juvenile
sentence.

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“Prior felony conviction” means a prior
adult federal or state conviction for an
offense punishable by death or
imprisonment for a term exceeding one
year, regardless of whether such offense is
specifically designated as a felony and
regardless of the actual sentence imposed.
. . . A conviction for an offense committed
prior to age eighteen is an adult conviction
if it is classified as an adult conviction
under the laws of the jurisdiction in which
the defendant was convicted.
U.S.S.G. § 4B1.2, cmt. n.1 (emphasis
added) (hereinafter “Note 1”). Note 1
clearly defines a “prior felony conviction”
purely in terms of the kind of conviction
the defendant had, not the kind of
sentence. Note 1 specifically explains that
a prior felony conviction includes any state
conviction that was counted as an adult
conviction by the laws of that state
“regardless of the actual sentence
imposed.” Id. While it is true, as Moorer
asserts, that the phrase “sentence of
imprisonment” implies incarceration in an
adult facility2, where or for how long the
defendant is actually sentenced is of no
import. Instead, Note 1 focuses on what
punishment could follow the conviction
for such an offense, and includes in the
career offender calculation federal and
state adult convictions for all offenses,
felonies or otherwise, which could be
punished by death or a term of
imprisonment of a year or more. Note 1
does not impose a separate sentence
requirement but places the entire focus on
the conviction itself, defining includable
convictions by the extent to which they can
be punished in the relevant jurisdiction.
Accordingly, the clear language of Note 1
refutes Moorer’s attempt to make his
sentence classification the fulcrum of his
career offender determination.
Ignoring Note 1, Moorer attempts
to import purportedly helpful language
from U.S.S.G. § 4A1.2. First, Moorer
points to U.S.S.G. § 4B1.2, cmt. n.3
(hereinafter “Note 3”), which instructs:
“The provisions of § 4A1.2 . . . are
applicable to the counting of convictions
under § 4B1.1.” § 4A1.2(d)(1), in turn,
states that an offense committed prior to
age eighteen counts toward one’s criminal
history when “the defendant was convicted
as an adult and received a sentence of
imprisonment exceeding one year and one
month.” Moorer, however, relies on §
4A1.2, cmt. n.7 (hereinafter “Note 7”),
which states that “for offenses committed
prior to age eighteen, only those that
re s u l te d i n a d u l t s en t e n c e s o f
imprisonment exceeding one year and one
month, or resulted in imposition of an
adult or juvenile sentence or release from
confinement on that sentence within five
years of the defendant’s commencement of
the instant offense are counted.” Moorer
2 In New Jersey, the term
“imprisonment” is not customarily used
when referring to a juvenile disposition.
Juvenile custodial adjudications are
described instead in terms of
“incarceration.” See N.J. Stat. Ann. §
2A:4A-43, 44.

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seizes upon the phrase “adult sentences”
and asks us to follow the Fourth Circuit’s
rule from United States v. Mason, 284
F.3d 555, 559 (4th Cir. 2002), that a
conviction before age eighteen “counts
only if [the defendant] was both convicted
and sentenced as an adult” (emphasis in
original).
We respectfully decline to follow
the Fourth Circuit’s view on this issue, as
we agree with the Ninth Circuit that the
phrase “adult sentences of imprisonment”
in Note 7 can naturally be read “to be a
shorthand reference to those defendants
who were ‘convicted as an adult and
received a sentence of imprisonment.’”
United States v. Carrillo, 991 F.2d 590,
593-94 (9th Cir. 1993) (quoting U.S.S.G.
§ 4A1.2(d)(1)); accord United States v.
Pinion, 4 F.3d 941, 945 (11th Cir. 1993).
We believe that Carrillo’s interpretation of
Note 7 is preferable to Mason’s
interpretation for two reasons. First, and
most importantly, a “sentenced as an
adult” requirement in Note 7 would
directly conflict with Note 1. As discussed
above, Note 1 dictates that the career
offender inquiry examine only whether the
conv ictions in question are adult
convictions, and not what kind of
sentences resulted from those convictions.
In light of this dictate, it would make little
sense for Note 3 to then import a
contradictory instruction from § 4A1.2,
which is the result under the rule in
Mason. In contrast, taking Carrillo’s
approach to Note 7 would harmonize it
with Note 1 by placing the focus of the
career offender inquiry on the nature of the
convictions.
Second, requiring adult sentencing
in addition to an adult conviction would
add a significant new element to criminal
history calculations that is unstated in the
actual text of the Guidelines. Carrillo, 991
F.2d at 594. The text of § 4A1.2(d)(1)
encompasses all situations where “the
defendant was convicted as an adult” and
received a sentence of requisite length. If
the Sentencing Guidelines Commission
had wished to require both an adult
conviction and an adult sentence for
criminal history purposes, it could have
easily written § 4A1.2(d)(1) to reflect that
wish: i.e, “If the defendant were convicted
and sentenced as an adult to a term of
imprisonment . . .” Based on these
reasons, we hold that an adult conviction
qualifies as a “prior felony conviction” for
purposes of career offender status whether
that conviction results in an “adult” or
“juvenile” sentence. Because Moorer does
not contest that his 1990 conviction was an
adult conviction, we find that it properly
counted toward his career offender status.
In closin g, w e note our
disagreement with Moorer’s contention
that his 1990 conviction resulted in a
“juvenile sentence” because that sentence
was served at Yardville Youth Reception
Center, and because it was made to run
concurrently with his remaining juvenile
disposition. As the government points out,
New Jersey law makes it clear that once a
juvenile is referred to an adult court, his
entire case falls under the Code of
Criminal Justice rather than the Code of
Juvenile Justice. N.J. Stat. Ann. § 2A:4A-

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26; see also, e.g., State in Interest of A.B.,
520 A.2d 783, 787 n.3 (N.J. Super. Ct.
App. Div. 1987). When such a referral
occurs, the juvenile’s case is treated in the
adult court “in the same manner as if the
case had been instituted in that court in the
first instance.” N.J. Stat. Ann. § 2A:4A-
28. In this case, we have no reason to
believe that Moorer’s sentence was
anything other than an adult sentence.
Indeed, we have found no authority under
New Jersey law that would permit a judge
to impose a juvenile “sentence” based on
an adult conviction for a crime.3 This
stands in marked contrast to the West
Virginia law discussed in Mason, which
explicitly allows for a defendant under
eighteen to be sentenced under juvenile
delinquency law even after being
convicted under adult jurisdiction. 284
F.3d at 561 (citing State v. Highland, 327
S.E.2d 703, 706 (W. Va. 1985)). The fact
that Moorer was remanded to Yardville to
serve out the sentence for his 1990
conviction actually undermines his
argument, because Yardville is a facility
that houses adults and is under the control
of the Department of Corrections rather
than the Department of Human Services .
In short, Moorer’s “juvenile sentence”
argument is unavailing both on legal
principles and on the facts of this
particular case.
V. Conclusion
After carefully considering the
arguments discussed above, we affirm the
District Court’s sentencing judgment.4
3 Under the New Jersey Code of
Juvenile Justice, juveniles who are
adjudicated delinquent are not sentenced
but rather are subject to a “dispositional
hearing.” N.J. Stat. Ann. § 2A:4A-41.
4 Moorer submitted a pro se brief
arguing that under Blakely v.
Washington, 124 S.Ct. 2531 (2004), a
jury should have determined whether he
was a career offender. We reject this
argument, as Blakely governed only
factual determinations, and Moorer’s
status as a career offender was purely a
matter of law under the Sentencing
Guidelines.

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