United States v. Moses , 140 F. App'x 448 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4806
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENINE MOSES, a/k/a BF,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-03-54)
Submitted: May 31, 2005 Decided: July 25, 2005
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joan A. Mooney, Morgantown, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Shawn Angus Morgan, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Denine Moses appeals his conviction pursuant to his
guilty plea to aiding and betting the distribution of heroin within
one thousand feet of a playground in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), 860 and 18 U.S.C. § 2 (2000). He
asserts the district court erred by denying his motion to withdraw
his guilty plea. Moses also asserts the district court erred under
United States v. Booker, 125 S. Ct. 738 (2005), by imposing a two-
level enhancement pursuant to U. S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) for possession of a firearm in connection with a drug
offense.
At the sentencing hearing, Moses claimed he was not
guilty as to the count to which he pled guilty. The district court
judge found Moses’ testimony concerning whether his plea was
knowing and voluntary not credible and denied Moses’ motion to
withdraw his guilty plea. After a recess, Moses recanted his
previous testimony, admitted to engaging in the charged conduct,
and sought to withdraw the motion to withdraw his guilty plea that
the court just denied. The district court reconsidered the motion
and permitted Moses to withdraw it.
We conclude that because Moses was permitted to withdraw
his motion to withdraw his guilty plea, he has waived any issue
concerning the court’s denial of the motion to withdraw his guilty
plea. See United States v. Olano, 507 U.S. 725, 733 (1993); United
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States v. Davis, 121 F.3d 335, 338 (7th Cir. 1997); U.S. v.
Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002); United States v.
Griffin, 84 F.3d 912, 924 (7th Cir. 1996).
Next, Moses argues the district court erred under Booker
and Blakely by imposing a two-level enhancement under USSG
§ 2D1.1(b)(1) for possession of a firearm in connection with a drug
offense. In Booker, the Supreme Court held that Blakely applies to
the federal sentencing guidelines and that the mandatory guidelines
scheme that provided for sentence enhancements based on facts found
by the court violated the Sixth Amendment. Booker, 125 S. Ct. at
746-48, 755-56 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by severing and excising the
statutory provisions that mandate sentencing and appellate review
under the guidelines, thus making the guidelines advisory. Id. at
756-57 (Breyer, J., opinion of the Court).
Here, the district court imposed a 380-month sentence
based, in part, on a two-level enhancement using facts found by the
court. Under Booker, the sentence violated the Sixth Amendment.
However, the alternative sentence imposed by the district court
treating the guidelines as advisory did not violate the Sixth
Amendment. Booker, 125 S. Ct. at 769.
Booker states that, in reviewing sentences that do not
involve a Sixth Amendment violation, appellate courts may apply the
harmless error doctrine in determining whether resentencing is
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required. Booker, 125 S. Ct. at 769; see Fed. R. Crim. P. 52(a)
(appellate court may disregard any error that does not affect
substantial rights). The harmless error standard permits an error
at sentencing to be disregarded if the reviewing court is certain
that any such error “did not affect the district court’s selection
of the sentence imposed.” Williams v. United States, 503 U.S. 193,
203 (1992). Here, because the district court imposed an
alternative discretionary sentence pursuant to 18 U.S.C. § 3553(2000) that was identical to the guidelines sentence, the error
inherent in the application of the guidelines as mandatory did not
affect the court’s ultimate determination of the sentence. Cf.
United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005)
(finding error not harmless and remanding where court’s comments
indicated it might have imposed a lesser sentence under advisory
guidelines scheme). We therefore conclude that any error was
harmless.
Finally, this Court reviews a sentence imposed pursuant
to § 3553 to determine whether it is reasonable. Booker, 125 S.
Ct. at 764-67 (Breyer, J., opinion of the Court)). In the instant
case, the district court made use of the sentencing guidelines and
the other factors under § 3553. The district court judge noted
Moses’ extensive criminal history and behavior, both good and bad,
in the courtroom. We conclude that because the district court
considered the factors under § 3553 and imposed a sentence within
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the calculated sentencing guideline range, the sentence was
reasonable.
Accordingly, we deny Moses’ motion to relieve appellate
counsel, and we affirm Moses’ conviction and sentence. 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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