US v. Archavis B. Moore
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARCHAVIS BRIANN MOORE, Defendant Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:05-cr-00028)
October 17, 2008
December 29, 2008
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Sandra J. Barrett, LAW OFFICE OF SANDRA J. BARRETT, Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Archavis Briann Moore was convicted by a jury of
possession of a firearm after having been convicted of a crime punishable by more than one year of imprisonment, in violation of 18 U.S.C. § 922(g) (2000), possession with intent to
distribute detectable amounts of cocaine base and marijuana, in violation possession of of 21 a U.S.C. firearm § 841(a)(1), a drug (b)(1)(C) (2000), crime, and in
violation of 18 U.S.C. § 924(c) (2000). concluded that Moore qualified for
The district court sentencing as a
career offender pursuant to U.S. Sentencing Guidelines Manual (USSG) § 4B1.1 (2005), and sentenced him to a total of 360 months of imprisonment. While Moore's Moore timely appealed. appeal was pending, we granted the
Government's motion to remand the case to the district court for a hearing on a potential conflict of interest because Moore's counsel was under investigation by the Government. At the
hearing, the district court found an actual conflict of interest existed and relieved counsel from further representation. counsel was appointed to represent Moore on appeal. Moore ineffective first asserts of that he received on trial per se New
conflict of interest.
The Government responds, arguing that
there is no evidence that, at the time of his representation of 2
Moore, counsel was aware that he was under investigation; and that the record does not reflect any adverse effect of such possible knowledge on counsel's representation of Moore in this case. Claims of ineffective assistance of counsel are generally See United States v. King, 119 Rather, to allow for adequate
not cognizable on direct appeal. F.3d 290, 295 (4th Cir. 1997).
development of the record, a defendant must bring his claim in a 28 U.S.C. § 2255 (2000) motion. See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
An exception exists
when the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Our review of the record leads us to
conclude that it does not conclusively show that counsel was ineffective, or that counsel was aware of the Government's
investigation of his conduct during his representation of Moore. Moore also argues that he was improperly sentenced as a career offender. Moore was classified as a career offender
based on prior felony convictions for robbery with a dangerous weapon and kidnapping and possession with intent to sell and deliver marijuana. of the In considering this the court district reviews court's factual United
findings for clear error and legal conclusions de novo. States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
Moore asserts three defects in his sentencing.
he argues that the court erred in imposing "career criminal" status because more the than Government one prior failed to file as an information by the
alleging statute. however, felony
The career offender Guidelines provision does not, require pretrial notice of the court the charge, necessary has held predicate that a
convictions. enhancement is not a
Further, based part of
this on the
defendant's and need
prior not be
included in the indictment. 278, 280-84 (4th Cir. 2005).
United States v. Thompson, 421 F.3d This argument is without merit.
Moore next argues that the district court erred in counting his 1993 convictions for robbery with a dangerous
weapon and second degree kidnapping as separate convictions for purposes of exposing the him to an enhanced that sentence. robbery At and
kidnapping convictions should count as only one conviction for sentencing purposes, and the record reflects they were counted as only one conviction. Moore's final argument is that his marijuana
conviction was not a qualifying felony drug conviction because the statutory maximum sentence used to determine whether a
conviction is a felony should be the presumptive range sentence and not the aggravated range sentence under North Carolina's 4
argument is negated by this court's decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), but asserts Harp should be reconsidered. Moore has not provided any persuasive reason why
this decision should be reconsidered, and "a panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court. Only the Supreme Court or this Scotts Co. v. United Indus. (4th Cir. We Moore 2002) find was (internal that a the
court sitting en banc can do that." Corp., 315 F.3d 264, and 271-72 n.2
quotation district offender.
We therefore affirm Moore's convictions and sentence. The written judgment of the district court erroneously states that Moore's conviction on Count Two was for possession with intent cocaine district dispense to distribute and cocaine and cocaine base, we rather to than the We legal
marijuana. correction argument
Accordingly, of this
clerical the facts
contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED AND REMANDED
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