United States of America v. Jon Barry Moore

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-1416
___________________________
United States of America
Plaintiff - Appellee
v.
Jon Barry Moore
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Des Moines
____________
Submitted: January 11, 2021
Filed: February 9, 2021
[Unpublished]
____________
Before GRUENDER, BENTON, and STRAS, Circuit Judges.
____________
PER CURIAM.
Jon Barry Moore pled guilty to possession with intent to distribute 50 grams
or more of a mixture and substance containing a detectable amount of
methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district

-- 1 of 2 --

-2-
court1 sentenced him to 151 months in prison. He appeals. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
Moore contends his within-guidelines sentence is substantively unreasonable.
He argues the court should have varied downward based on a policy disagreement
with U.S.S.G. § 2D1.1(c), which he believes creates an arbitrary distinction between
“actual” pure meth and “less pure” meth. This court reviews for abuse of discretion.
United States v. Sharkey, 895 F.3d 1077, 1080 (8th Cir. 2018).
The district court may vary from the meth guidelines based on a policy
disagreement, but nothing mandates it do so. See id. at 1082. See also United States
v. Binion, 801 Fed. Appx. 459, 462 (8th Cir. 2020) (“[W]hile the district court could
have granted a downward variance based on a disagreement with the Guidelines’
treatment of methamphetamine purity . . . it had the discretion to decline to do so.”),
citing Kimbrough v. United States, 552 U.S. 85, 110 (2007). As required, the district
court considered Moore’s argument before rejecting it, noting that “if anything, the
amount of methamphetamine attributed to the defendant, pure or otherwise, is likely
an underestimation of the amount of methamphetamine the defendant was involved
with.” The district court did not abuse its discretion by rejecting Moore’s request to
vary downward. See id.
* * * * * * *
The judgment is affirmed.
______________________________
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

-- 2 of 2 --