United States v. Moore , 114 F. App'x 153 ( 2004 )

Menu:

                                                              United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                     November 30, 2004
Charles R. Fulbruge III
Clerk
No. 02-60999
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAVARIS MONONNETO MOORE,
also known as Chilli Mac,
Defendant-Appellant.
Appeal from the United States District Court
for Northern District of Mississippi
USDC No. 3:01-CR-139-ALL-B
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
*
PER CURIAM:
Tavaris Mononneto Moore appeals his conviction for one
count of distribution in excess of fifty grams of a mixture and
substance containing cocaine base (crack cocaine).              He contends
that he was denied effective assistance of counsel due to an actual
conflict of interest.      Further, he asserts that the district court
failed to protect his constitutional right to counsel by taking
*
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opinion should not be published and is not precedent except under the limited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.
corrective action when the conflict of interest manifested at
trial.
Moore fails to show that an actual conflict of interest
adversely affected his attorney’s performance.           See Cuyler v.
Sullivan,

446 U.S. 335

, 348 (1980); Perillo v. Johnson,

205 F.3d 775

, 798-99 (5th Cir. 2000).      Thus, his argument that the district
court failed to protect his constitutional right to counsel by
taking corrective action when the conflict of interest manifested
at trial has no merit.
On appeal, Moore also argues that perjured testimony on
the part of Government agents tainted the jury.        Moore’s argument
has no merit because he has failed to show that the Government
agent's testimony was willfully false.            See United States v.
Blackburn,

9 F.3d 353

, 357 (5th Cir. 1993).             “Conflicting or
inconsistent testimony is insufficient to establish perjury.”           See
Kutzner v. Johnson,

242 F.3d 605

, 609 (2001).
Additionally, Moore asserts that the district court erred
in failing to verify at sentencing that he and his counsel had read
and discussed the presentence report (PSR), in accordance with
Federal Rule of Criminal Procedure 32.       Because Moore has not made
a showing of prejudice, the district court did not plainly err in
failing to ask Moore whether he had read the PSR.             See United
States v. Esparza-Gonzalez,

268 F.3d 272

, 274 (5th Cir. 2001).
Similarly, because Moore has failed to show that his substantial
rights   were   affected   by   the   probation   officer’s   failure   to
2
personally provide him with a copy of the PSR, there was no plain
error.

Id. Moore further

    contends     that   the   district     court
incorrectly      applied   the    Federal    Sentencing    Guidelines   when
calculating the amount of drugs attributable to him at sentencing.
Specifically, he contends that some of the statements used by the
probation officer, pursuant to U.S.S.G. § 1B1.3, were not reliable
because they involved hearsay.              He further contends that the
statements referred to conduct occurring ten years prior to the
instant offense and had “a complete lack of temporal proximity
. . . to the offense of conviction.”
Although Moore objected to several paragraphs of the PSR
describing his drug trafficking activity, he did not specifically
raise objections on the grounds he asserts on appeal.            Thus, this
court reviews for plain error.        See United States v. Arce,

118 F.3d 335

, 343 n.8 (5th Cir. 1997).         However, this court has held that
“[q]uestions of fact that the sentencing court could have resolved
upon proper objection at sentencing can never constitute plain
error.”

Id. Because a

district court’s determination of the
quantity of drugs attributable to a defendant is a finding of fact,
see United States v. Vital,

68 F.3d 114

, 120 (5th Cir. 1995), Moore
cannot show plain error.         Additionally, Moore’s argument that his
sentence must be reversed pursuant to Blakely v. Washington,

124 S. Ct. 2531

(2004) is foreclosed by this court’s decision in United
3
States v. Pineiro,

377 F.3d 464

, 465-66 (5th Cir. 2004), pet. for
cert. filed (July 14, 2004) (No. 04-5263).
Lastly, because the record is not sufficiently developed
to permit direct review, we decline to address Moore’s claim that
he was denied effective assistance of counsel at sentencing.    See
United States v. Brewster,

137 F.3d 853