US v. Gary Moore

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cr-00482-MJP-1 Copies to all parties and the district court/agency. [998484723] [10-4613]

US v. Gary Moore

Doc. 0

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Date Filed: 12/14/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4613 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. GARY MICHAEL MOORE, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Matthew J. Perry, Jr., Senior District Judge. (3:08-cr-00482-MJP-1) Submitted: November 24, 2010 Decided: December 14, 2010

Before GREGORY, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Parks N. Small, Federal Public Defender, Aileen P. Clare, Research and Writing Specialist, Columbia, South Carolina, for Appellant. Winston David Holliday, Jr., Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Gary Michael Moore pleaded guilty, pursuant to a

written plea agreement, to one count of possessing counterfeited securities of various organizations, in violation of 18 U.S.C. § 513 (2006). Moore moved for a downward departure pursuant to

U.S. Sentencing Guidelines Manual §§ 5K2.13, p.s., 5K2.16, p.s. (2008). The district court departed four levels downward, and Moore appeals, and

imposed a sentence of one year and one day.

Moore's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious grounds for appeal, but asking us to review the adequacy of the Fed. R. Crim. P. 11 hearing and the reasonableness of Moore's sentence. Finding no reversible error, we affirm. Although counsel did not identify any error with the plea colloquy, we note that the district court did not advise Moore about the penalties for perjury if he testified falsely under oath, as required by Fed. R. Crim. P. 11(b)(1)(A), and that Moore could not withdraw his plea if the sentence imposed was longer than expected, we as find required that by Fed R. Crim. did P. not

11(c)(3)(B).

However,

these

omissions

affect Moore's substantial rights and therefore do not amount to plain error. See United States v. Massenburg, 564 F.3d 337, Neither Moore nor counsel asserts that

342-43 (4th Cir. 2009).

the district court's omissions influenced Moore's decision to 2

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plead guilty.

Moreover, the district court's downward departure

resulted in a sentence significantly lower than what Moore could have expected under his plea agreement with the Government. Turning reasonableness, standard." review to Moore's "a sentence, deferential we review it for

applying

abuse-of-discretion This and

Gall v. United States, 552 U.S. 38, 41 (2007). consideration of both the procedural

requires

substantive reasonableness of a sentence. This properly court must the assess

Id. at 51. the district considered court the

whether

calculated

Guidelines

range,

18 U.S.C. § 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49-51; United United States States v. v. Lynn, Carter, 592 564 F.3d F.3d 572, 325, 576 330

(4th Cir. 2010); (4th Cir. 2009).

An extensive explanation is not required as

long as the appellate court is satisfied "`that the district court has considered the parties' arguments and has a reasoned basis for exercising its own legal decisionmaking authority.'" United (quoting States Rita v. v. Engle, United 592 F.3d 495, 500 (4th Cir. 2010) 356 (2007)) the the

States, Finally, of the to

551

U.S.

338,

(alterations substantive totality of

omitted). reasonableness the

this

court

reviews

sentence, see

"examin[ing] the

circumstances

whether

sentencing

court abused its discretion in concluding that the sentence it 3

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chose satisfied the standards set forth in § 3553(a)."

United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). In this case, the record reflects that the sentence imposed is both procedurally and substantially reasonable. The

district court spent considerable time carefully evaluating the facts and circumstances of Moore's case and the arguments of the parties. departure, Ultimately, it granted Moore a significant downward imposing a sentence approximately eighteen months

below the Guidelines range initially calculated by the probation officer. totality We of find the no significant procedural the error, extent and of the the

circumstances

support

departure and the sentence imposed. In accordance with Anders, we have thoroughly reviewed the entire record in this case and have found no meritorious issues for appeal. sentence. writing, of We therefore affirm Moore's conviction and

This court requires that counsel inform Moore, in 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 4 presented in the materials

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before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

5