United States v. Floyd Moore ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4257
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FLOYD B. MOORE, a/k/a Jesse, a/k/a Diamond Jesse,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:09-cr-00222-2)
Submitted: December 29, 2011 Decided: February 2, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Amy Lee Copeland, AMY LEE COPELAND, LLC, Savannah, Georgia, for
Appellant. R. Booth Goodwin, II, United States Attorney,
Steven I. Loew, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Floyd B. Moore pled guilty, pursuant to a written plea
agreement, to one count of a violation of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962(c) (2006). The district court sentenced Moore to fifty-
seven months’ imprisonment. On appeal, Moore argues that the
district court erred in finding that a sufficient factual basis
supported his guilty plea and that trial counsel rendered
ineffective assistance. The Government has moved for summary
dismissal of the appeal, arguing that Moore waived his ability
to appeal the district court’s determination that an adequate
factual basis supported his guilty plea and is barred by the
invited error doctrine from raising this challenge on appeal,
and that ineffective assistance of counsel does not conclusively
appear on the record. Although we deny the Government’s motion
to dismiss the appeal, we affirm the district court’s judgment. *
*
The Government relies on United States v. Willis, 992 F.2d
489 (4th Cir. 1993), to support its argument that this court
should summarily dismiss this appeal. Willis, however, stands
for the unremarkable proposition that a defendant’s knowing,
voluntary, and intelligent guilty plea waives non-jurisdictional
defects, including the right to challenge factual guilt to the
charges at issue. Id. at 490-91. Moore’s appellate challenge
to the district court’s conclusion that an adequate factual
basis supported his guilty plea is premised on the court’s
alleged failure to comply with Fed. R. Crim. P. 11(b)(3) and is
thus not foreclosed by Willis. See United States v. Mitchell,
104 F.3d 649, 652 n.2 (4th Cir. 1997). We also conclude that
the invited error doctrine does not bar our consideration of
(Continued)
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The district court is required to satisfy itself that
there is a factual basis for a defendant’s guilty plea prior to
entering judgment on the plea. Fed. R. Crim. P. 11(b)(3). “The
rule is intended to ensure that the court make[s] clear exactly
what a defendant admits to, and whether those admissions are
factually sufficient to constitute the alleged crime.” United
States v. Ketchum, 550 F.3d 363, 366 (4th Cir. 2008) (internal
quotation marks omitted). Because Moore did not challenge the
sufficiency of the factual basis supporting his guilty plea in
the district court, we review his challenge for plain error
only. United States v. Mastrapa, 509 F.3d 652, 656-57 (4th Cir.
2007). To prevail under this standard, Moore must establish
that a clear or obvious error by the district court affected his
substantial rights. United States v. King, 628 F.3d 693, 699
(4th Cir. 2011).
The RICO Act provides that it is unlawful for any
person “associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct
of such enterprise’s affairs through a pattern of racketeering
Moore’s Rule 11(b)(3)-based challenge. Id. Further, summary
dismissal of Moore’s claim of ineffective assistance of counsel
is not warranted. 4th Cir. R. 27(f).
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activity.” 18 U.S.C. § 1962(c). A defendant’s guilt on a
charge of violating § 1962(c) is thus established by showing:
(1) the existence of an enterprise; (2) the defendant’s
association with the enterprise; (3) the defendant’s
participation in the affairs of the enterprise; (4) a pattern of
racketeering activity; and (5) the enterprise’s effect on
interstate commerce. United States v. Hooker, 841 F.2d 1225,
1227 (4th Cir. 1988) (en banc). “Racketeering activity” is
defined as “any act or threat” involving specified crimes under
state law punishable by imprisonment for more than one year or
“any act [that] is indictable” under various federal criminal
statutes, including the Travel Act, 18 U.S.C. § 1952 (2006).
18 U.S.C. § 1961(1)(A)-(B) (2006). For a “pattern” of such
activity to be present, there must be proof of at least two
racketeering acts within a ten-year period. Id. § 1961(5).
Additionally, the racketeering acts must be related and must
amount to or pose a threat of continued criminal activity.
H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989);
ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 181 (4th Cir. 2002).
Moore contends that the factual basis supporting his
plea was insufficient because it failed to establish a violation
of the Travel Act, one of the predicate acts forming the basis
for his RICO violation. We disagree. In this case, the record
makes clear that third parties traveled interstate at Moore’s
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direction to deliver to him proceeds of illegal gambling
activity. We also reject as without merit Moore’s assertion
that no Travel Act violation is present because the illegal
gambling activity at issue in this case did not constitute a
continuous course of conduct. Interruption-less activity is not
the sine qua non of a business enterprise for Travel Act
purposes. See United States v. Rawle, 845 F.2d 1244, 1246,
1248-49 (4th Cir. 1988). Further, after a thorough review of
the record and the parties’ briefs, we reject as meritless
Moore’s claim that the predicate racketeering acts lacked
sufficient continuity and relationship to constitute a pattern
of racketeering activity. Accordingly, we discern no error,
plain or otherwise, by the district court.
Moore also claims that trial counsel rendered
ineffective assistance in the proceedings before the district
court. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. 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
claims in a 28 U.S.C.A. § 2255 (West Supp. 2011) motion. Id.An exception exists, however, where the record conclusively
establishes ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). After review of
the record, we find no conclusive evidence that trial counsel
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rendered ineffective assistance, and we therefore decline to
consider this claim on direct appeal.
Accordingly, we deny the Government’s motion to
dismiss the appeal, but affirm the district court’s judgment.
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
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