United States v. Moore ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4613
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GARY MICHAEL MOORE,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:08-cr-00482-MJP-1)
Submitted: November 24, 2010 Decided: December 14, 2010
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Parks N. Small, Federal Public Defender, Aileen P. Clare,
Research and Writing Specialist, Columbia, South Carolina, for
Appellant. Winston David Holliday, Jr., Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Michael Moore pleaded guilty, pursuant to a
written plea agreement, to one count of possessing counterfeited
securities of various organizations, in violation of 18 U.S.C.
§ 513 (2006). Moore moved for a downward departure pursuant to
U.S. Sentencing Guidelines Manual §§ 5K2.13, p.s., 5K2.16, p.s.
(2008). The district court departed four levels downward, and
imposed a sentence of one year and one day. Moore appeals, and
Moore’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), concluding that there are no meritorious
grounds for appeal, but asking us to review the adequacy of the
Fed. R. Crim. P. 11 hearing and the reasonableness of Moore’s
sentence. Finding no reversible error, we affirm.
Although counsel did not identify any error with the
plea colloquy, we note that the district court did not advise
Moore about the penalties for perjury if he testified falsely
under oath, as required by Fed. R. Crim. P. 11(b)(1)(A), and
that Moore could not withdraw his plea if the sentence imposed
was longer than expected, as required by Fed R. Crim. P.
11(c)(3)(B). However, we find that these omissions did not
affect Moore’s substantial rights and therefore do not amount to
plain error. See United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). Neither Moore nor counsel asserts that
the district court’s omissions influenced Moore’s decision to
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plead guilty. Moreover, the district court’s downward departure
resulted in a sentence significantly lower than what Moore could
have expected under his plea agreement with the Government.
Turning to Moore’s sentence, we review it for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review requires consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 51.
This court must assess whether the district court
properly calculated the Guidelines range, considered the
18 U.S.C. § 3553(a) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. at 49-51; United States v. Lynn, 592 F.3d 572, 576
(4th Cir. 2010); United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009). An extensive explanation is not required as
long as the appellate court is satisfied “‘that the district
court has considered the parties’ arguments and has a reasoned
basis for exercising its own legal decisionmaking authority.’”
United States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007))
(alterations omitted). Finally, this court reviews the
substantive reasonableness of the sentence, “examin[ing] the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
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chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
In this case, the record reflects that the sentence
imposed is both procedurally and substantially reasonable. The
district court spent considerable time carefully evaluating the
facts and circumstances of Moore’s case and the arguments of the
parties. Ultimately, it granted Moore a significant downward
departure, imposing a sentence approximately eighteen months
below the Guidelines range initially calculated by the probation
officer. We find no significant procedural error, and the
totality of the circumstances support the extent of the
departure and the sentence imposed.
In accordance with Anders, we have thoroughly reviewed
the entire record in this case and have found no meritorious
issues for appeal. We therefore affirm Moore’s conviction and
sentence. This court requires that counsel inform Moore, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Moore requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Moore.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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