United States v. Moore , 42 F. App'x 618 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4610
WILLIAM PIERCE MOORE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4641
MARY FRANCIS MOORE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 01-4783
MARY FRANCIS MOORE,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
Terrence W. Boyle, Chief District Judge.
(CR-00-1-7-BO)
Submitted: July 18, 2002
Decided: August 5, 2002
Before LUTTIG, MICHAEL, and KING, Circuit Judges.
2 UNITED STATES v. MOORE
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville,
North Carolina, Ray Colton Vallery, Fayetteville, North Carolina, for
Appellants. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Banumathi Rangarajan,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
On January 31, 2001, a jury found Mary and William Moore guilty
of being accessories after the fact to an interstate kidnapping commit-
ted by their son, see 18 U.S.C.A. §§ 3, 1201 (West 2000), and Wil-
liam Moore guilty of providing misleading statements to investigating
authorities, see 18 U.S.C. §§ 2, 1001(a)(2) (1994). The district court
subsequently denied the Moores’ motions for new trial pursuant to
Fed. R. Crim. P. 33. Mary Moore received a sentence of twelve
months’ home confinement followed by three years’ supervised
release. William Moore received a twenty-seven month custodial sen-
tence followed by three years’ supervised release. In their consoli-
dated brief filed pursuant to Anders v. California, 386 U.S. 738(1967), in Nos. 01-4610 and 01-4641, the Moores appeal the denial
of their Rule 33 motions. While the Moores were each informed of
their right to file a pro se supplemental brief, they failed to do so. In
its cross-appeal in No. 01-4783, the United States contests Mary
Moore’s sentence to home confinement. We affirm in all respects.
UNITED STATES v. MOORE 3
This Court reviews the denial of a Rule 33 motion for abuse of dis-
cretion. United States v. Russell, 221 F.3d 615, 619 (4th Cir. 2000).
The Moores based their motions on an affidavit of their son’s accom-
plice in the kidnapping, Redell Ivey, in which Ivey purported to
recant the testimony he offered at the Moores’ trial. However, we find
the district court properly determined the Moores’ motions failed to
satisfy the requirements of Rule 33 for a new trial. See United States
v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989); United States v. Bales,
813 F.2d 1289, 1295 (4th Cir. 1987).
Nor do we find reversible error in the district court’s grant of Mary
Moore’s motion to depart downward based on her physical condition.
This Court reviews a district court’s decision to grant a downward
departure for abuse of discretion. United States v. Hairston, 96 F.3d
102, 106 (4th Cir. 1996). A district court may only take a defendant’s
physical condition into account in imposing a sentence if that condi-
tion constitutes "an extraordinary physical impairment" that makes
home detention "as efficient as, and less costly than, imprisonment."
United States Sentencing Guidelines Manual § 5H1.4, p.s. (2000); see
also United States v. Brock, 108 F.3d 31, 34-35 (4th Cir. 1997).
Because Mary Moore’s severe physical limitations restrict her mobil-
ity and necessitate extensive and individualized medical care, we find
no error in the court’s decision to sentence her to home confinement
pursuant to § 5H1.4.*
We have examined the record as required by Anders v. California,
386 U.S. 738 (1967), and find no other meritorious issues for appeal.
*The Government also assigns error to the district court’s inclusion of
Mary Moore’s "lack of criminal history" as an additional basis for its
decision to depart downward in its criminal judgment order. The Govern-
ment’s contention that this constitutes a forbidden factor for departing
downward is correct. See USSG § 4A1.3. However, at her sentencing
hearing, Mary Moore sought a downward departure based solely on her
physical condition, and the district court noted only this factor in pro-
nouncing her sentence from the bench. Although the district court’s writ-
ten order creates some ambiguity as to the basis for the district court’s
sentencing decision, we defer to the court’s orally pronounced sentence
and related justifications. See United States v. Daddino, 5 F.3d 262, 266
n.5 (7th Cir. 1993) (collecting cases).
4 UNITED STATES v. MOORE
Accordingly, we affirm Mary and William Moore’s convictions, as
well as the district court’s decision to sentence Mary Moore to twelve
months’ home confinement under § 5H1.4. This Court requires that
counsel for each defendant inform his client, in writing, of his or her
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may then
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED