United States v. Moore , 273 F. App'x 291 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5039
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOBBY GENE MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:07-cr-00170-JAB)
Submitted: March 31, 2008 Decided: April 14, 2008
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Paul Alexander Weinman, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Gene Moore pled guilty, pursuant to a plea
agreement, to bank robbery, in violation of 18 U.S.C. § 2113(a)
(2000). The district court sentenced Moore to seventy-seven
months’ incarceration, to be followed by three years of supervised
release. Moore timely appealed.
On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating there are no
meritorious issues for review, but questioning whether the
presentence report was calculated correctly and whether the
sentence was reasonable. Moore separately argues that he agreed to
a sentence of thirty-seven to forty-six months, not seventy-seven
to eighty-four months; the sentence was unreasonable because he had
never before been convicted of a violent crime; he did not possess
a firearm during the commission of the bank robbery; and the
presentence report added “unfair” misdemeanor points. The
government declined to file a responding brief. We affirm.
To the extent Moore claims his guilty plea was
involuntary and the district court erred in accepting it, any error
committed during the Rule 11 hearing is reviewed for plain error
because Moore did not move to withdraw his guilty plea. See United
States v. Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). A
defendant’s statements at a guilty plea hearing are presumed true.
See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Unsupported
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subsequent allegations are insufficient to overcome representations
at the hearing. Id. at 74; see also Via v. Superintendent,
Powhatan Corr. Ctr., 643 F.2d 167, 171 (4th Cir. 1981) (holding
statements made at plea hearing that facially demonstrate plea’s
validity conclusive absent compelling reason why they should not
be, such as ineffective assistance of counsel). Under the totality
of the circumstances and in light of Moore’s testimony at his plea
hearing, the district court did not abuse its discretion by
accepting Moore’s guilty plea.
To any extent Moore claims ineffective assistance of
counsel, such claims must be brought in a collateral proceeding
under 28 U.S.C. § 2255 (2000) unless such ineffective assistance
conclusively appears from the face of the record. See United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Because
ineffective assistance of counsel does not appear conclusively from
the face of the record, Moore must pursue any ineffective
assistance claims through a § 2255 motion.
Regarding Moore’s sentence, the district court
appropriately treated the Guidelines as advisory, considered the
advisory Guidelines range, and weighed the relevant 18 U.S.C.
§ 3553(a) (2000) factors. See United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005). A sentence that falls within a
properly calculated advisory Guidelines range is presumed to be
reasonable. Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
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Appellate courts review all sentences, including those outside the
advisory Guidelines range, for abuse of discretion. Gall v. United
States, 128 S. Ct. 586, 597 (2007).
Our review of the record reveals that the Guidelines
range was properly calculated. Moore’s seventy-seven month
sentence was at the low end of the Guidelines range and well below
the statutory maximum sentence. The district court considered the
Guidelines as well as both parties’ arguments regarding Moore’s
criminal history, his age, and the nature of his crime. We
conclude the district court did not abuse its discretion in
imposing the seventy-seven month sentence.
Finally, although Moore complains on appeal that he did
not agree to the higher sentencing range, the plea agreement
provided only that if Moore’s base offense level was sixteen or
higher and he qualified for a two-point decrease in his offense
level under the sentencing Guidelines, the Government would
recommend that the district court apply an additional one-level
reduction. The plea agreement also noted Moore’s sentence would be
within the discretion of the district court, which would take the
Guidelines into consideration. Therefore, the plea agreement
referenced the Guidelines generally but did not attempt to bind the
parties to a specific sentencing range.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
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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 before
the court and argument would not aid the decisional process.
AFFIRMED
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