United States v. Moran

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10344
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
THOMAS JAMES MORAN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(1:98-CR-58-2)
March 8, 2000
Before HIGGINBOTHAM and PARKER, Circuit Judges, and WARD,* District
Judge:
PER CURIAM:**
Thomas James Moran, Jr. appeals his convictions and sentences
for conspiracy to commit violations of 18 U.S.C. §§ 2314(interstate transportation of stolen property and property taken by
*
District Judge of the Eastern District of Texas, sitting by
designation.
**
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
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fraud) and 2315 (receipt of stolen property and property taken by
fraud) a violation of 18 U.S.C. § 371; interstate transportation of
stolen property, a violation of 18 U.S.C. §§ 2314 and 2; and
receiving stolen equipment in interstate commerce, a violation of
18 U.S.C. § 2315 and 2. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Moran and his co-defendant, Roy Sanders, purchased restaurant
supplies and equipment in Kentucky and Tennessee using funds from
their employer, Shoney’s Restaurants, and transported the goods to
Texas for use in their own restaurant, Knockers. They also stole
equipment from Shoney’s restaurants in Kentucky and Tennessee and
transported it to Texas to use in their restaurant.
On the third day of their jury trial, Sanders pleaded guilty.
He is not a party to this appeal. The jury found Moran guilty of
all counts. Moran was sentenced to three concurrent twenty-seven
month prison terms, restitution in the amount of $66,059.00, a $300
special assessment and a three-year term of supervised release.
RULE 32(c)(3)(A) VIOLATION
Federal Rule of Criminal Procedure 32(c)(3)(A) provides:
(3) Imposition of Sentence. Before imposing sentence,
the courts must:
(A) verify that the defendant and the
defendant’s counsel have read and discussed
the Presentence Report . . .
Moran alleges that the district court violated Rule
32(c)(3)(A) by failing to verify that he and his attorney had read
and discussed the Presentence Report (“PSR”). Because Moran failed
to object to this alleged error at sentencing, our review is
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restricted to plain error. See United States v. Navejar, 963 F.2d
732, 734 (5th Cir. 1992)(“The contemporaneous objection rule
applies equally to sentencing hearing as to trial.”) Plain error
is error which, when examined in the context of the entire case, is
so obvious and substantial that failure to notice and correct it
would affect the fairness, integrity or public reputation of
judicial proceedings. See United States v. Lopez, 923 F.2d 47, 50
(5th Cir. 1991).
We have held that if a district court fails specifically to
ask a defendant and his counsel whether or not he has read and
discussed the PSR with his attorney, it may base a determination on
reasonable inferences from court documents, the defendant’s
statements, and counsel’s statements. See United States v.
Victoria, 877 F.2d 338, 340 (5th Cir. 1989)1. The record shows
that the PSR was disclosed approximately one month before the
sentencing hearing and a date was set for filing objections. At
the sentencing hearing, the district court stated that “[t]he file
reflects both the Government and defendant have filed statements
adopting the matters set[] forth in the pre-sentence report.” The
court’s pronouncement arguably implies a finding that Moran was
given the opportunity to read the PSR and discuss it with his
counsel.
1
Amendments to Federal Rule of Civil Procedure 32 after this
court decided Victoria do not abrogate its analysis. In 1989, when
Victoria was decided, the provision at issue resided in
32(a)(1)(A). The April 1, 1994 amendments to the rule moved the
provision to 32(c)(3)(A) with minor changes, not relevant to the
question presented in this appeal.
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Further, when the district court learned that Moran’s trial
counsel was absent from the sentencing hearing and that he had sent
substitute counsel, he asked, “Mr. Moran, let me ask you, are you
satisfied with representation this morning, or do you wish [trial
counsel] Mr. Martinez be here for sentencing?”
Moran responded, “Sir, I have not seen David Martinez since
the day I was locked up. Today is just as good a day as any.”
Both parties make much of this exchange. Moran contends that
his statement indicates that he had not had an opportunity to
discuss the PSR with his counsel. The Government argues that in
response to an express inquiry from the court, Moran indicated he
had no objection to going forward with the sentencing. To buttress
this position, the Government notes that, when Moran had a second
opportunity to address the court just prior to imposition of
sentence, he had nothing to say.
“Whether [Moran] in fact read the report and whether the
record reflects affirmatively that he did or that he had an
opportunity to do so are of course quite different.” Victoria, 887
F.2d at 340. While the record does not conclusively show that
Moran read and discussed the PSR with his attorney, he was
represented by counsel and given two express opportunities to
personally address the court. Given the indications in the record
that the PSR was timely and properly disclosed to Moran and that he
made no objection personally or through his counsel concerning his
opportunity to review and discuss it prior to sentencing, we find
no plain error.
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INEFFECTIVE ASSISTANCE OF COUNSEL
Moran raises several claims of ineffective assistance of
counsel. “A claim of ineffective assistance of counsel cannot be
resolved on direct appeal when the claim has not been raised before
the district court since no opportunity existed to develop the
record on the merits of the allegations.” United States v. Higdon,
832 F.2d 312, 313-14 (5th Cir. 1987). This court will “resolve
claims of inadequate representation on direct appeal only in rare
cases where the record allow[s] [the court] to evaluate fairly the
merits of the claim.” United States v. Andrews, 22 F.3d 1328, 1345
(5th Cir. 1994)(internal quotation and citation omitted). This
issue has not yet been raised in the district court. Consequently,
there has been no chance to develop the record concerning this
issue. We therefore decline to address Moran’s ineffective
assistance of counsel claim on direct appeal.
CONCLUSION
Based on the foregoing, we affirm Moran’s convictions and
sentences.
AFFIRMED.
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