United States v. Moore , 304 F. App'x 224 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARCHAVIS BRIANN MOORE,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:05-cr-00028)
Submitted: October 17, 2008 Decided: December 29, 2008
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Sandra J. Barrett, LAW OFFICE OF SANDRA J. BARRETT, Asheville,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Archavis Briann Moore was convicted by a jury of
possession of a firearm after having been convicted of a crime
punishable by more than one year of imprisonment, in violation
of 18 U.S.C. § 922(g) (2000), possession with intent to
distribute detectable amounts of cocaine base and marijuana, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2000), and
possession of a firearm during a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (2000). The district court
concluded that Moore qualified for enhanced sentencing as a
career offender pursuant to U.S. Sentencing Guidelines Manual
(USSG) § 4B1.1 (2005), and sentenced him to a total of 360
months of imprisonment. Moore timely appealed.
While Moore’s appeal was pending, we granted the
Government’s motion to remand the case to the district court for
a hearing on a potential conflict of interest because Moore’s
counsel was under investigation by the Government. At the
hearing, the district court found an actual conflict of interest
existed and relieved counsel from further representation. New
counsel was appointed to represent Moore on appeal.
Moore first asserts that he received per se
ineffective assistance of counsel based on trial counsel’s
conflict of interest. The Government responds, arguing that
there is no evidence that, at the time of his representation of
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Moore, counsel was aware that he was under investigation; and
that the record does not reflect any adverse effect of such
possible knowledge on counsel’s representation of Moore in this
case. Claims of ineffective assistance of counsel are generally
not cognizable on direct appeal. See United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claim in a
28 U.S.C. § 2255 (2000) motion. See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists
when the record conclusively establishes ineffective assistance.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999);
King, 119 F.3d at 295. Our review of the record leads us to
conclude that it does not conclusively show that counsel was
ineffective, or that counsel was aware of the Government’s
investigation of his conduct during his representation of Moore.
Moore also argues that he was improperly sentenced as
a career offender. Moore was classified as a career offender
based on prior felony convictions for robbery with a dangerous
weapon and kidnapping and possession with intent to sell and
deliver marijuana. In considering the district court’s
application of the Guidelines, this court reviews factual
findings for clear error and legal conclusions de novo. United
States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
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Moore asserts three defects in his sentencing. First,
he argues that the court erred in imposing “career criminal”
status because the Government failed to file an information
alleging more than one prior conviction, as required by the
statute. The career offender Guidelines provision does not,
however, require pretrial notice of the necessary predicate
felony convictions. Further, this court has held that a
sentencing enhancement based on the defendant’s prior
convictions is not a part of the charge, and need not be
included in the indictment. United States v. Thompson, 421 F.3d
278, 280-84 (4th Cir. 2005). This argument is without merit.
Moore next argues that the district court erred in
counting his 1993 convictions for robbery with a dangerous
weapon and second degree kidnapping as separate convictions for
purposes of exposing him to an enhanced sentence. At
sentencing, the Government agreed that Moore’s robbery and
kidnapping convictions should count as only one conviction for
sentencing purposes, and the record reflects they were counted
as only one conviction.
Moore’s final argument is that his marijuana
conviction was not a qualifying felony drug conviction because
the statutory maximum sentence used to determine whether a
conviction is a felony should be the presumptive range sentence
and not the aggravated range sentence under North Carolina’s
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structured sentencing statute. Moore acknowledges that his
argument is negated by this court’s decision in United States v.
Harp, 406 F.3d 242 (4th Cir. 2005), but asserts Harp should be
reconsidered. Moore has not provided any persuasive reason why
this decision should be reconsidered, and “a panel of this court
cannot overrule, explicitly or implicitly, the precedent set by
a prior panel of this court. Only the Supreme Court or this
court sitting en banc can do that.” Scotts Co. v. United Indus.
Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (internal
quotation marks and citations omitted). We find that the
district court properly determined that Moore was a career
offender.
We therefore affirm Moore’s convictions and sentence.
The written judgment of the district court erroneously states
that Moore’s conviction on Count Two was for possession with
intent to distribute cocaine and cocaine base, rather than
cocaine base and marijuana. Accordingly, we remand to the
district court for correction of this clerical error. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED AND REMANDED
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