United States v. Moore ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-21057
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMITT MOORE, JR.,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
(CR-H-94-137-6)
December 9, 1996
Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.*
PER CURIAM:
Defendant-appellant Emmitt Moore, Jr. (Moore) complains on
appeal that the government breached the plea agreement by not
recommending that the defendant was a “minor” participant who
should be given a reduction in offense level under section 3B1.2(b)
of the Guidelines for having only a "minor" role in the offense.
At arraignment, the government stated that it would "recommend a
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
three-point reduction under the Sentencing Guidelines for
acceptance of responsibility, timely notice of intent to plea and
a minor role." The government also agreed to file a motion for
downward departure under section 5K1.1 of the Guidelines if Moore
provided substantial assistance.
The PSR recommended a three-point reduction for acceptance of
responsibility, but recommended no reduction for minor role. The
government filed a motion for downward departure under section
5K1.1 as agreed. The district court granted this motion. Neither
at nor before sentencing did the defendant object to the PSR's
failure to give a reduction for a minor role under section
3B1.2(b). The PSR characterized Moore as the "right-hand man" of
Odis Jordan, a primary figure in the charged drug trafficking.
Defense counsel did not object to this characterization. The
defense did, however, seek to invoke the provisions of section
5C1.2 to avoid the statutory minimum sentence of ten years, and in
connection with that request sought a two-level decrease under
section 2D1.1(4). In response, the government urged that Moore
should not get relief under section 5C1.2 because, as Odis Jordan's
right-hand man, he did not meet the criteria of section 5C1.2(4)
("was not an organizer, leader, manager or supervisor"). Defense
counsel did not object to the government's argument in this
respect. The district court granted defense counsel's section
5C1.2 motion, as well as the requested accompanying two-level
decrease in offense level under section 2D1.1(4). This resulted in
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an offense level of 29——which is the precise offense level defense
counsel contended for——and a Guideline range of 87-108 months. The
district court sentenced Moore to 108 months, which was below the
otherwise applicable statutory minimum of 120 months. Moore had
requested consideration of a sentence of sixty months (a level well
below what the Guideline range would have been if a further two-
level reduction had been given).
We hold that Moore has forfeited (if not indeed waived) any
complaint concerning the government's argument that Moore was
Jordan’s right-hand man and its not recommending an additional two-
point reduction for a minor role in the offense under section
3B1.2(b). Defense counsel never sought a section 3B1.2(b)
reduction in the trial court, did not object to the PSR's failure
to recommend such a recommendation, and objected neither to the
government's failure to recommend such a reduction nor to its
comments that as Jordan’s right-hand man Moore was not entitled to
the benefits of section 5C1.2 because he did not meet the criteria
of clause (4) thereof. Nor did defense counsel object to the PSR’s
characterization of Moore as Jordan’s right-hand man. The district
court granted the section 5C1.2 motion and the two-level section
2D1.1(4) reduction sought by the defense, and utilized the offense
level of 29 that the defense requested.
Assuming that there was "plain error," and even that
substantial rights might have been affected, we conclude that this
is not an appropriate case for us to exercise our discretion to
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award relief despite the forfeiture. We conclude that affirmance
does not seriously affect the fairness, integrity, or public
reputation of judicial proceedings. See United States v.
Calverley, 37 F.3d 160, 164 (5th Cir. 1994), cert. denied 115 S. Ct.
1266 (1995).
The judgment of the district court is accordingly
AFFIRMED.
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