Filed: Sep. 13, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT September 13, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-6002 (D.C. No. 5:10-CR-00212-R-1) RANDY DAVID MOORAD, (W.D. Okla.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _ Randy Moorad appeals the district court’s judgment sentencing him to three years in prison after he violated t
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT September 13, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-6002 (D.C. No. 5:10-CR-00212-R-1) RANDY DAVID MOORAD, (W.D. Okla.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _ Randy Moorad appeals the district court’s judgment sentencing him to three years in prison after he violated th..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 13, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6002
(D.C. No. 5:10-CR-00212-R-1)
RANDY DAVID MOORAD, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
Randy Moorad appeals the district court’s judgment sentencing him to three
years in prison after he violated the terms of his supervised release. We affirm.
In 2011, Moorad pleaded guilty to one count of making a false statement to a
financial institution in violation of 18 U.S.C. § 1014. The district court sentenced him
to 41 months in prison and five years of supervised release. Moorad served his prison
sentence, and his supervised release began on June 6, 2014.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
Along with general reporting requirements, the terms of Moorad’s supervised
release required him to maintain a single checking account, disclose all of his bank
accounts to his probation officer, participate in treatment for his gambling addiction,
and refrain from entering or associating “with a[n]y legal or illegal gambling
establishment.” R. vol. 1, 39. Moorad initially complied with these terms. But in
January 2015, Moorad’s probation officer learned that Moorad opened multiple bank
accounts without permission, allegedly stole over $12,000 from a casino, and
allegedly defrauded a bank of $2,600.
When Moorad failed to report to his probation officer to discuss these
violations, the district court issued a warrant for his arrest. Moorad reported several
days later. But while his probation officer was escorting him to the U.S. Marshals
Office, he fled on foot. Moorad remained at large for nearly three years, until a
fugitive task force found and arrested him in Delaware in November 2017.
The district court conducted a hearing on Moorad’s supervised-release
violations. Moorad admitted to the violations but offered two explanations for his
behavior: (1) his gambling addiction and (2) his sister’s terminal illness. According
to Moorad, his gambling-addiction treatment failed because his counselor told him he
didn’t have a gambling addiction; and, he said, his addiction caused him to violate
the no-gambling provision of his supervised release. Further, in October 2014, his
sister was diagnosed with terminal cancer. Moorad told the district court that he
initially fled in early 2015 because he feared that if he were arrested, he would never
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see his sister again. But Moorad’s sister died in September 2015, and he failed to turn
himself in after her death.
For its part, the government disputed Moorad’s explanations. It argued
Moorad’s failure to comply with the terms of his supervised release didn’t stem from
his gambling addiction. Instead, it asserted Moorad’s criminal history showed that
“[h]e has a problem with committing fraud.” R. vol. 2, 28. It also suggested that
Moorad skipped his sister’s funeral in order to continue evading the authorities. The
government concurred with the probation office’s recommended sentence: the
statutory maximum of three years in prison and two years of supervised release. See
18 U.S.C. § 3583(e)(3).
In imposing the recommended sentence, the district court characterized
Moorad’s violations as “outrageous,” R. vol. 2, 29, and declined to credit his
explanations for his behavior. Further, the court concluded the maximum sentence
was necessary to punish Moorad and to deter others from behaving similarly. Moorad
appeals, arguing that his three-year sentence is substantively unreasonable.
“Substantive reasonableness focuses on the length of the sentence and requires
that sentences be neither too long nor too short.” United States v. Walker,
844 F.3d
1253, 1255 (10th Cir. 2017). We review the substantive reasonableness of the district
court’s sentencing decision for abuse of discretion. United States v. Lopez-Macias,
661 F.3d 485, 488–89 (10th Cir. 2011). That means we will reverse only “if the
[district] court ‘exceeded the bounds of permissible choice,’ given the facts and the
applicable law in the case at hand.” United States v. McComb,
519 F.3d 1049, 1053
3
(10th Cir. 2007) (quoting United States v. Ortiz,
804 F.2d 1161, 1164 n.2 (10th Cir.
1986)).
“When a convicted defendant violates a condition of supervised release, the
sentencing judge may revoke the term of supervised release and impose prison time.”
United States v. Vigil,
696 F.3d 997, 1002 (10th Cir. 2012); see also § 3583(e)(3). In
so doing, the district court “must consider the factors in 18 U.S.C. § 3553(a)” as well
as the applicable policy statements in the Sentencing Guidelines.
Vigil, 696 F.3d
at 1002. And “[o]ur review of [a] sentence for substantive reasonableness is informed
by the district court’s consideration of these factors.”
Walker, 844 F.3d at 1256.
Among others, the statutory factors include (1) “the nature and circumstances
of the offense”; (2) “the history and characteristics of the defendant”; and (3) the goal
of imposing a sentence that reflects “the seriousness of the offense,” provides just
punishment, and deters future crime. § 3553(a). The applicable policy statements
include suggested sentencing ranges for revocations of supervised release, but these
ranges “are not mandatory and [are] even less compelling than established
Guidelines.”
Vigil, 696 F.3d at 1003; see also U.S.S.G. Ch. 7, pt. A (noting that
Sentencing Commission issued only “policy statements applicable to the revocation
of . . . supervised release,” not Guidelines). As such, “a [district] court does not need
to find severe or exceptional circumstances to impose a sentence above the range
suggested.”
Vigil, 696 F.3d at 1002–03.
Here, Moorad argues that his sentence is substantively unreasonable because
the district court “failed to accord adequate weight to mitigating factors that the
4
district court was required to consider.” Aplt. Br. 6; see also
Walker, 844 F.3d
at 1259 (noting that district court can abuse its discretion and impose substantively
unreasonable sentence by ignoring relevant factors). Specifically, Moorad insists that
his gambling addiction and his sister’s illness were key parts of “the nature and
circumstances of” his supervised-release violations. § 3553(a)(1). Thus, he contends
the district court erred by failing to place any weight on those circumstances.
But the district court didn’t fail to consider these mitigating circumstances;
instead, it found that Moorad’s explanations about those circumstances weren’t
credible. See United States v. Haley,
529 F.3d 1308, 1311 (10th Cir. 2008) (noting
that appellate courts generally defer to district courts’ sentencing decisions in part
because lower court is in best position to “make[] credibility determinations”). For
example, as the government points out, Moorad’s sister’s illness explains only his
initial flight, not his decision to continue evading authorities for over two years after
his sister’s death. Thus, the district court didn’t abuse its discretion in placing less
weight on one factor—the possibly mitigating “nature and circumstances of the
offense”—than on other § 3553(a) factors, including the need for deterrence and the
severity of Moorad’s violations. See § 3553(a); United States v. Pena, 537 F. App’x
801, 805 (10th Cir. 2013) (unpublished) (noting that “[a]bsconding from supervision
is a very serious violation of the condition of one’s supervised release”; rejecting
argument that district court gave “insufficient consideration or weight to the reasons
[defendant] offered for a lesser sentence”).
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Finally, we reject any suggestion in Moorad’s briefing that his sentence is
substantively unreasonable simply because it’s “twice as long as the top end” of the
range provided in the policy statement. Aplt. Br. 9. His assertion is factually correct:
the policy statement’s range is 12–18 months, and the district court imposed three
years. See U.S.S.G. § 7B1.4 (listing sentencing ranges for revocation of supervised
release). But the range in the policy statement is merely advisory; the district court
need only consider it, not follow it. See
Vigil, 696 F.3d at 1002. Indeed, “[a]ll
discussions of applicable sentences before a district court following the revocation of
supervised release should be grounded in the common understanding that the district
court may impose any sentence within the statutory maximum.”
Id. (quoting United
States v. Burdex,
100 F.3d 882, 885 (10th Cir.1996)).
The district court didn’t abuse its discretion in imposing the statutory
maximum here. Accordingly, we affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
6