United States v. William Edwin Moore , 257 F. App'x 254 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 06-13806 ELEVENTH CIRCUIT
DECEMBER 7, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 05-00050-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM EDWIN MOORE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 7, 2007)
Before EDMONDSON, Chief Judge, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-Appellant William Edwin Moore appeals his convictions and
sentences of 151 months’ imprisonment consecutive to 84 months’ imprisonment
imposed after a jury trial for four counts of bank robbery (Counts One, Two, Five,
and Seven); one count of armed bank robbery (Count Three); one count of
attempted bank robbery (Count Six); and one count of using and carrying a firearm
during a crime of violence (Count Seven).1 No reversible error has been shown;
we affirm.
Moore first argues that the district court’s denial of his motions to dismiss
his lawyer and for a continuance -- Moore filed to substitute his lawyer before trial
and again before he was sentenced -- violated the Sixth Amendment and due
process. We review the denial of Moore’s pre-sentencing motions for abuse of
discretion.2 See United States v. Baker, 432 F.3d 1189, 1248 (11th Cir. 2005);
United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997). “The proper
exercise of the trial court’s discretion . . . requires a delicate balance between the
1
Counts One through Four charged Moore with offenses that occurred in 2000; Counts Five
through Seven charged him with offenses occurring in 2005.
2
The district court held a hearing on Moore’s pre-trial motion to dismiss his lawyer; and the
district court issued an order stating that it denied Moore’s motion for the reasons given at the
hearing. But a transcript of the district court’s hearing is not part of the record on appeal. Because
Moore failed to order this transcript, we are unable to review his challenge to the district court’s
denial of his pre-trial motion to dismiss his lawyer. See Fed.R.App.P. 10(b)(1) (explaining the
appellant’s duty to order transcripts that the appellant considers necessary); Selman v. Cobb County
Sch. Dist., 449 F.3d 1320, 1333 (11th Cir. 2006) (“[T]he burden is on the appellant to ensure the
record on appeal is complete, and where a failure to discharge that burden prevents us from
reviewing the district court’s decision we ordinarily will affirm the judgment.”). Because we are
unable to conduct a meaningful review of the district court’s denial of Moore’s motion without
knowing the reasons for the district court’s decision, we affirm the denial of Moore’s pre-trial
motion to dismiss his lawyer.
2
defendant’s right to adequate representation by counsel of his choice and the
general interest in the prompt and efficient administration of justice.” Baker, 432
F.3d at 1248. And the burden is on the defendant to show that the denial was an
abuse of discretion and that it produced specific substantial prejudice. United
States v. Smith, 757 F.2d 1161, 1166 (11th Cir. 1985).
When reviewing the denial of a continuance to secure a new lawyer during a
trial, we consider these factors:
(1) the length of the delay; (2) whether the counsel who becomes
unavailable for trial has associates prepared to try the case; (3)
whether other continuances have been requested and granted; (4) the
inconvenience to all involved in the trial; (5) whether the requested
continuance is for a legitimate reason; and (6) any unique factors.
Id. Here, the district court continued Moore’s sentencing hearing once so that
Moore could discuss his pre-sentence investigation report with his lawyer.3
Before Moore’s sentencing hearing resumed, Moore moved to dismiss his lawyer
and to replace him with an out-of-state lawyer who needed time to familiarize
himself with Moore’s case. In making this motion, Moore did not indicate the
anticipated length of time for the delay. And Moore’s desired lawyer was not
present when Moore’s sentencing hearing resumed. We conclude that the district
3
The district court also had granted many pretrial continuances in this case.
3
court did not abuse its discretion in denying Moore’s pre-sentencing requests to
dismiss his lawyer and to receive another continuance.
Moore next challenges the district court’s denial of his motion to suppress
shaving-related items seized from his motel room. In this case, police arrested
Moore after he opened the door to his motel room; and officers immediately
conducted a protective sweep of Moore’s motel room. During this sweep, police
saw shaven hair and shaving materials in the bathroom sink. Moore contends that
the protective sweep was excessive because the search extended beyond places
where a person could hide. Although Moore concedes that the bathroom sink was
in plain view, he asserts that, for officers to observe the contents of the sink, the
officers must have engaged in more than a cursory inspection of the bathroom.
When reviewing a district court’s denial of a motion to suppress, we review
its findings of fact for clear error and its application of the law to those facts de
novo. United States v. Newsome, 475 F.3d 1221, 1223 (11th Cir. 2007). All facts
are construed in the light most favorable to the prevailing party, in this case the
government. Id. at 1223-24.
Because “[e]very arrest must be presumed to present a risk of danger to the
arresting officer,” we have explained that, “[w]here necessary, police arresting a
suspect may conduct a protective sweep of the area to check for other persons who
4
might pose a threat to the safety of the officers or the public.” United States v.
Standridge, 810 F.2d 1034, 1037 (11th Cir. 1987). Evidence found in plain view
during a protective sweep may be seized. United States v. Hromada, 49 F.3d 685,
691 (11th Cir. 1995); see also Standridge, 810 F.2d at 1038 (affirming denial of
motion to suppress evidence -- including a money wrapper floating in a toilet bowl
with its lid raised -- seized during a protective sweep of a motel room).
A detective who was present at Moore’s motel room when Moore was
arrested testified that the protective sweep took less than one minute and resulted
in officers looking under the motel room’s beds and in the bathroom. During this
search, officers noticed hair and shaving materials in the bathroom sink. Because
these items were in the officers’ plain view during their protective sweep of
Moore’s motel room, we affirm the denial of Moore’s motion to suppress this
evidence.
We turn to Moore’s challenge to his sentence. Moore contends that his
sentence was unreasonable because he was assigned a criminal history point for an
offense that occurred more than ten years before some of the counts of conviction
took place.4 In addition, he argues that his sentence was unreasonable because the
4
Moore’s offenses in this case occurred in 2000 and 2005. When the district court calculated his
criminal history score, it attributed one criminal history point to Moore for a sentence imposed in
1994 for battery. Moore asserts that this criminal history point should not have applied to his 2005
5
district court failed to articulate sufficiently how it had relied on the factors set out
at 18 U.S.C. § 3553(a) in determining his sentence.
We review de novo the district court’s interpretation and application of the
Sentencing Guidelines. United States v. Ivory, 475 F.3d 1232, 1233-34 (11th Cir.
2007). Section 4A1.2(e) of the Sentencing Guidelines provides, in relevant part,
that in calculating a criminal history score using an offense where the sentence
imposed did not exceed one year and one month, a sentencing court should count a
“prior sentence that was imposed within ten years of the defendant’s
commencement of the instant offense . . . .” U.S.S.G. § 4A1.2(e)(2) (emphasis
added).
In this case, that Moore’s instant offense commenced in 2000 is clear, when
the conduct charged in Counts One through Four occurred. See id. We conclude
that the district court properly assigned Moore a criminal history point for his
1994 sentence; and as a result, the district court did not err in assigning Moore to
criminal history category II.
offenses.
6
About Moore’s remaining sentencing arguments, we review his sentence for
reasonableness in the light of the 18 U.S.C. § 3553(a) factors.5 United States v.
Winingear, 422 F.3d 1241, 1244-46 (11th Cir. 2005).
At Moore’s sentencing hearing, the district court heard testimony from
Moore’s family and also considered arguments made by the parties about the
length of Moore’s sentence.6 In sentencing Moore, the district court explained that
it had considered all of the section 3553(a) factors and that Moore’s sentence was
sufficient, but not greater than necessary, to comply with the purposes of
sentencing. The district court also specifically noted that it considered how many
banks Moore had robbed or attempted to rob and that he had used a firearm. The
district court was not required to discuss each of the section 3553(a) factors at
Moore’s sentencing hearing. See United States v. Bohannon, 476 F.3d 1246, 1248
(11th Cir.), cert. denied, 127 S.Ct. 2953 (2007) (“The district court need not state
on the record that it has explicitly considered each factor and need not discuss
5
Under section 3553(a), a district court should consider, among other things, the nature and
circumstances of the offense, the history and characteristics of the defendant, the need for adequate
deterrence and protection of the public, policy statements of the Sentencing Commission, provision
for the medical and educational needs of the defendant, and the need to avoid unwarranted
sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
6
We note that, at his sentencing hearing, Moore’s lawyer told the district court, “I would submit
to the Court that 20 years here would be a reasonable sentence, and I’m asking the Court to impose
it.” Moore’s sentence of 151 months’ imprisonment consecutive to 84 months’ imprisonment is less
than 20 years’ imprisonment.
7
each factor”; instead, “an acknowledgment by the district court that it has
considered the defendant’s arguments and the [section] 3553(a) factors will
suffice.”). Moore’s sentence was reasonable.7
AFFIRMED.
7
The government asserts that, although Moore argued before the district court about what
sentence would be reasonable, his failure to argue that the district court had not adequately
considered the section 3553(a) factors or to raise an objection to his sentence after it was imposed
indicates that we should review Moore’s challenge to the reasonableness of his sentence only for
plain error. We need not decide this issue because, even under a reasonableness standard, Moore’s
appeal fails.
8