United States v. Ernest Moore , 703 F.3d 562 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2012 Decided December 28, 2012
No. 10-3093
UNITED STATES OF AMERICA,
APPELLEE
v.
ERNEST BERNARD MOORE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00250-1)
Marie Park, appointed by the court, argued the cause and
filed the briefs for appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Ronald C.
Machen, Jr., U.S. Attorney, and Roy W. McLeese III, John P.
Mannarino, and Ellen Chubin Epstein, Assistant U.S.
Attorneys.
Before: BROWN, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
2
EDWARDS, Senior Circuit Judge: On November 9, 2009,
appellant Ernest Bernard Moore pled guilty to three counts of
fraud. Count One (“Student Aid Fraud”) charged Moore with
knowingly and willfully executing a scheme to obtain student
aid funds by fraud, false statement, and forgery in violation of
20 U.S.C. § 1097(a). Count Two (“Bank Fraud”) charged
Moore with knowingly executing a scheme to defraud certain
banks by means of fraud and fraudulent pretenses,
representations, and promises in violation of 18 U.S.C.
§ 1344. Count Three (“Social Security Fraud”) charged
Moore with knowingly and willfully converting Social
Security Benefits for his own use after the intended
beneficiary was no longer in Moore’s care in violation of 42
U.S.C. § 408(a)(5). On September 23, 2010, the District Court
sentenced Moore to concurrent terms of 50 months’
imprisonment for all three counts, to be followed by
concurrent supervised-release terms of 36 months for Student
Aid Fraud and Social Security Fraud and 60 months for Bank
Fraud. In addition, the District Court ordered Moore to pay
$759,593.86 in restitution to all of the victims of his offenses,
not merely the victims of his offenses of conviction.
Moore appeals from the District Court’s judgment on
several grounds:
• He first contends that the trial judge plainly erred
during the plea colloquy when he read the wrong
portion of the statute in describing the elements of the
offense relating to Student Aid Fraud, thereby
rendering Moore’s guilty plea unknowing.
• Moore also contends that the District Court erred in
accepting as undisputed the calculations of his
Criminal History in the Presentence Report (“PSR”)
after Moore’s counsel orally withdrew his earlier
3
written objections to the calculations. The PSR
calculations increased Moore’s Criminal History
Category from II to V under the Sentencing
Guidelines.
• Moore further claims that his Plea Agreement, which
stated that he “agree[d] to make restitution to all
victims of [his] criminal conduct and not merely for
those victims included in the counts to which [he]
agree[d] to plead guilty,” did not unambiguously
empower the District Court to award restitution to
victims of Moore’s conduct other than his offenses of
conviction.
• Finally, Moore asserts that he was deprived of his
Sixth Amendment right to counsel because his trial
attorney was ineffective. He claims in particular that
counsel’s ineffective representation prejudiced him at
sentencing.
Moore requests that this court set aside his conviction for
Student Aid Fraud and remand for resentencing with a
corrected Criminal History Category of II, as stipulated in the
parties’ Plea Agreement. He also requests that the District
Court’s order of restitution be reduced so that it is consistent
with applicable law or remanded so that the trial judge can
clarify the basis for the restitution order.
We agree that the District Court erred in describing the
elements of Student Aid Fraud; however, the error did not
affect Moore’s substantial rights. We find no merit in any of
the remaining claims raised by Moore on appeal. We
therefore affirm the judgment of the District Court.
4
I. Background
The Information and Statement of the Offense
implicating Moore included the following counts:
Student Aid Fraud (Count One). Between 2002
and 2006, Moore knowingly and willfully executed a
scheme to obtain eleven federally insured student loans
by fraud, false statement, and forgery. Using the name
“Bernard Glenn-Moore” and a fraudulent Social Security
number, he submitted a fraudulent loan request for each
of the eleven loans. He obtained $88,351 through this
scheme.
Bank Fraud (Count Two). Between 2002 and
2007, Moore applied for and obtained ten private student
loans from four different banks. On these loan
applications, he used fraudulent Social Security numbers
and falsely stated that his name was “Bernard Glenn-
Moore” or “Tracy G. Cannady.” He obtained $188,777
through this scheme.
Social Security Fraud (Count Three). Moore was
responsible for Warren Baker’s care and legitimately
served as Baker’s Representative Payee for the collection
of Social Security benefits. However, Moore continued
to receive Social Security payments on Baker’s behalf
after he ceased caring for Baker. Moore fraudulently
received a total of $13,257 through this scheme.
Statement of the Offense at 1-8, reprinted in Joint Appendix
(“J.A.”) 22-29; see also Information at 1-4, reprinted in J.A.
8-11.
The charges against Moore never reached trial because he
elected to enter into a Plea Agreement with the Government.
5
As part of the Plea Agreement, which was executed on
September 30, 2009, Moore agreed to plead guilty to the
offenses listed in the Information. Plea Agreement at 1-9,
reprinted in J.A. 13-21. He also agreed that, “[i]n addition to
any restitution that must be ordered by the Court,” he would
“make restitution to all victims of [his] criminal conduct and
not merely for those victims included in the counts to which
[he] agree[d] to plead guilty.” The parties modified the Plea
Agreement on October 1, 2009. Pursuant to this modification,
the following marked language was stricken from the
Agreement:
In addition to any restitution that must be ordered by the
Court, your client agrees to make restitution to all victims
of your client’s criminal conduct and not merely for those
victims included in the counts to which your client agrees
to plead guilty. The government contends that pursuant to
18 U.S.C. §§ 3663(a)(3) and 3663A(a)(3), the order of
restitution imposed by the Court shall be in the amounts
and to the victims indicated in Exhibit 1 to this letter.
Your client contends that the restitution amounts are less.
but acknowledges that some amount of restitution is
owed to each of the victims listed in Exhibit 1 to this
letter. The parties will rely on the Court, with the
assistance of the United States Probation Office, to
resolve this issue.
Id. at 5; reprinted in J.A. 17. The parties disagree over the
significance of this modification of the Plea Agreement.
On November 9, 2009, Moore executed a Statement of
the Offense in which he stipulated that he committed not only
the offenses described in the Information, but also additional
bank fraud and credit card fraud. Statement of the Offense at
1-17, reprinted in J.A. 22-38. The additional bank fraud to
6
which Moore stipulated included five loans between 2003 and
2008 in the aggregate amount of $20,600. Moore listed his
name as “Bernard Moore” or “Tracy G. Cannady” on these
loan applications and used a fraudulent Social Security
number. Moore also stipulated that, from 2003 to 2009, he
opened more than ninety credit card accounts using aliases
and bogus Social Security numbers. The Government
estimated that the outstanding balance from these credit card
transactions totaled $469,099.52.
A plea hearing was held before the District Court on
November 9, 2009. During this hearing, after acknowledging
that he had “thoroughly” reviewed the Plea Agreement,
Moore pled guilty to the offenses described in the
Information. The District Court judge then informed Moore of
“the nature of each charge to which [he was] pleading,” as
required by Rule 11(b)(1)(G) of the Federal Rules of Criminal
Procedure. With respect to Count One, the trial judge told
Moore that the Government “would have to prove, first, that
you misapplied federal financial aid funds, and, two, that you
did so knowingly and willfully.” This was a mistake because
the Information charged Moore with “knowingly and willfully
execut[ing] a scheme to obtain by fraud, false statement, and
forgery” numerous student loans. Nonetheless, Moore told the
trial judge that he understood the elements of the count
pertaining to Student Aid Fraud and that they accurately
described his offenses. The trial judge’s explanations of the
Bank Fraud and Social Security Fraud charges were
consistent with the Information.
After the trial judge had explained each charge, the
prosecution proffered the facts that it was prepared to prove in
the event that the case proceeded to trial. This proffer was
consistent with the charges in the Information. Moore
acknowledged that he had heard the prosecution’s statement,
7
and Moore’s defense counsel agreed that the Government
could prove the elements of the charges in the Information.
The only disagreement between the parties concerned the
amount that would be due in restitution. After confirming that
Moore willingly admitted the offenses at issue, the District
Court accepted Moore’s guilty plea. Only sentencing
remained to be completed.
For the purpose of calculating Moore’s sentence, the Plea
Agreement estimated Moore’s Criminal History to be
Category II under the Sentencing Guidelines. See generally
U.S. SENTENCING GUIDELINES MANUAL (2008). On this point,
the Plea Agreement stated that the designation of Category II
was based on information that was available to the
Government as of September 25, 2009. After the execution of
the Plea Agreement, however, the Probation Office prepared a
PSR for the purpose of applying the Sentencing Guidelines to
Moore. The PSR calculated Moore’s Criminal History to be
Category V, not Category II. In its Memorandum in Aid of
Sentencing, the Government explained that, “[a]t the time of
the plea, the government was unaware of the full extent of
[Moore’s] criminal history. The government now adopts the
Criminal History calculation in the PSR, which places
[Moore] in Criminal History Category V.”
Moore’s counsel initially objected to the PSR’s
calculation of Criminal History and the probation officer
incorporated this objection in her addendum to the PSR. At
the sentencing hearing, however, Moore’s counsel withdrew
his objection, stating that:
[F]or purposes of what the Court has to find . . . the
calculations by the Probation Officer [in the PSR] of 57
to 71 [months’ sentence] are calculated correctly with the
Criminal History to a Category 5, so, therefore, that’s the
8
range. We had [in] our plea agreement 33 to 41 [months’
sentence], but the calculations of the Probation Officer
for the purposes of these proceedings and the Court, we
accept as accurate.
Tr. of Sentencing Hr’g at 2-3, reprinted in J.A. 101-02.
The District Court then sentenced Moore to 50 months, in
the middle of the adjusted range of 46 to 57 months
recommended by the Government. The District Court further
ordered Moore to pay $759,593.86 in restitution. In
announcing this sentence, the trial judge emphasized Moore’s
lengthy criminal history, “all of it involving fraud and lying,
perjury, lying under oath, taking money that doesn’t belong to
you; manipulating the system; using other names, credit
cards; [and] getting taxpayer money.” The trial judge
described Moore as an “incredibly intelligent skillful con
man,” and expressed the hope that Moore’s sentence might
deter other potential offenders and might “convince” Moore
that he “should not reengage [in] this kind of behavior.”
II. Analysis
A. Plea Colloquy
Before the District Court may accept a defendant’s plea
agreement, Rule 11 of the Federal Rules of Criminal
Procedure requires, inter alia, that the District Court advise
the defendant of the “nature of each charge to which the
defendant is pleading.” See FED. R. CRIM. P. 11(b)(1)(G).
Rule 11 sets forth a detailed procedure for the plea colloquy
that is “designed to assist the district judge in making the
constitutionally required determination that a defendant’s
guilty plea is truly voluntary . . . [and] to produce a complete
record at the time the plea is entered of the factors relevant to
this voluntariness determination.” United States v. Dewalt, 92
9
F.3d 1209, 1211-12 (D.C. Cir. 1996) (alteration in original)
(quoting McCarthy v. United States, 314 U.S. 459, 465
(1969)) (internal quotation marks omitted).
Rule 11(h) states that “[a] variance from the requirements
of [Rule 11] is harmless error if it does not affect substantial
rights.” FED. R. CRIM. P. 11(h). In United States v. Vonn, 535
U.S. 55, 63 (2002), the Court addressed “whether Congress’s
importation of the harmless-error standard into Rule 11(h)
without its companion plain-error rule was meant to eliminate
a silent defendant’s burdens under the Rule 52(b), [FED. R.
CRIM. P. 52(b)], plain-error review, and instead give him a
right to subject the Government to the burden of
demonstrating harmlessness.” The Court then said “[i]f the
answer is yes, a defendant loses nothing by failing to object to
obvious Rule 11 error when it occurs. We think the answer is
no.” Id. The Court explained that, if Rule 52(b) plain-error
review did not apply,
a defendant could choose to say nothing about a judge’s
plain lapse under Rule 11 until the moment of taking a
direct appeal, at which time the burden would always fall
on the Government to prove harmlessness. A defendant
could simply relax and wait to see if the sentence later
struck him as satisfactory; if not, his Rule 11 silence
would have left him with clear but uncorrected Rule 11
error to place on the Government's shoulders.
Id. at 73. Vonn firmly rejects this view. The Court in Vonn
made it clear that, although the harmless-error rule applies to
alleged errors under Rule 11, Rule 11(h) does not excuse a
silent defendant from the burdens of plain-error review. Id. at
71-72.
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As “to the scope of an appellate court’s enquiry into the
effect of a Rule 11 violation, whatever the review, plain error
or harmless,” Vonn confirmed that a reviewing court may
assess not only “the four corners of the transcript of the plea
hearing and Rule 11 colloquy,” but also “other portions . . . of
the limited record” that indicate whether the defendant knew
the nature of the charges against him. Id. at 74-75 (citation
omitted) (noting “transcripts covering [the defendant’s] first
appearance and arraignment” as examples of other portions of
the record that “may be considered”). And in assessing a
claim that the trial judge erred during the Rule 11 colloquy, it
is well understood that Rule 11 “does not require that the
district court spell out the elements of the charge in order to
inform the defendant adequately.” In re Sealed Case, 283
F.3d 349, 354 (D.C. Cir. 2002) (citing United States v.
Liboro, 10 F.3d 861, 865 (D.C. Cir. 1993)). Instead, a plea
colloquy must, “based on the totality of the circumstances,
lead a reasonable person to believe that the defendant
understood the nature of the charge.” United States v. Ahn,
231 F.3d 26, 33 (D.C. Cir. 2000) (citations omitted) (internal
quotation marks omitted). This is the focus of any inquiry on
appeal. Therefore, a trial judge’s failure to fully spell out the
elements of a charge, without more, may be insufficient to
sustain a challenge under Rule 11.
In normal circumstances, if a Rule 11 error occurs during
a plea hearing and the defendant objects, the Government
carries the burden of demonstrating that the error was
harmless. In re Sealed Case, 283 F.3d at 351-52; see also
FED. R. CRIM. P. 11(h). If, however, an alleged error is
committed without objection from the defendant, then the
defendant carries the burden on appeal of demonstrating
“plain error” pursuant to Rule 52(b) of the Federal Rules of
Criminal Procedure. See United States v. Dominguez Benitez,
542 U.S. 74, 80 (2004) (confirming that “when a defendant is
11
dilatory in raising Rule 11 error . . . reversal is not in order
unless the error is plain” (citations omitted)). Because Moore
raised no objections during his plea hearing, save for
expressing concerns about the amount of restitution, he now
bears the burden of showing that, during the plea colloquy, (1)
the District Court erred, (2) the error was clear or obvious, (3)
the error affected his substantial rights, and (4) the error
“seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano,
507 U.S. 725, 732-36 (1993) (citation omitted) (internal
quotation marks omitted).
In determining whether the District Court’s colloquy with
the defendant “would lead a reasonable person to believe that
the defendant understood the nature of the charge,” Dewalt,
92 F.3d at 1212 (citation omitted) (internal quotation marks
omitted), we consider a number of factors. “In addition to the
[trial] judge’s inquiry, the circumstances we consider include:
the defendant’s level of intelligence; whether he was
represented by counsel; the complexity of the charge against
him; and his own statements at the plea hearing.” In re Sealed
Case, 283 F.3d at 352 (citation omitted).
At Moore’s plea colloquy, the District Court judge
misread 20 U.S.C. § 1097(a), the statute under which Moore
pled guilty to Student Aid Fraud. Section 1097(a) covers, in
relevant part:
[a]ny person who knowingly and willfully embezzles,
misapplies, steals, obtains by fraud, false statement, or
forgery, or fails to refund any funds, assets, or
property . . . .
Id. In reciting the grounds for Moore’s guilty plea for Student
Aid Fraud, the District Court judge stated that, “[w]ith respect
to student aid fraud, the Government would have to prove,
12
first, that you misapplied federal financial aid funds, and, two,
that you did so knowingly and willfully.” Tr. of Plea Hr’g at
9, reprinted in J.A. 47 (emphasis added). In the Information,
Moore’s charge for Student Aid Fraud is described as
“knowingly and willfully execut[ing] a scheme to obtain
[student aid funds] by fraud, false statement, and forgery”
through “fraudulent loan request[s].” Information at 1,
reprinted in J.A. 8.
Misapplication of funds is one theory of liability under
Section 1097(a). However, Moore was charged under Section
1097(a) with having obtained funds by fraud and false
statement. In a case involving the unlawful obtaining of funds
under Section 1097(a), a defendant need not have misapplied
or converted the funds in question. The prosecutor needs only
to prove that the defendant knowingly and willfully obtained
funds by fraud or false statements. United States v. Ranum, 96
F.3d 1020, 1030-31 (7th Cir. 1996) (finding liability under
Section 1097(a) based on false statements without
misapplication of funds or conversion). Moore is correct in
asserting that he was not charged with misapplying student
aid funds and that there is no such evidence in the record.
Rather, Moore was charged with violating Section 1097(a)
because he “knowingly and willfully executed a scheme to
obtain by fraud, false statement, and forgery” federally
guaranteed student aid funds. See Ranum, 96 F.3d at 1031(holding that, “[u]nder a plain reading of [Section 1097(a)],
the knowing and willful making of a false statement [is]
sufficient to establish the crime”); see also United States v.
Gibson, 770 F.2d 306, 307 (2d Cir. 1985) (per curiam)
(upholding a conviction under Section 1097(a) based on
defendant’s “obtaining student loans by fraud and false
statement”).
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We find that the District Court undoubtedly erred during
the plea colloquy when it incorrectly described the nature of
the charge covered by Count One. Moore therefore easily
satisfies the first and second requirements of the Olano plain
error test. See 507 U.S. at 732-34. However, the Government
correctly points out that the trial judge’s error did not affect
Moore’s substantial rights under the third requirement of the
Olano test. See id. at 734. This is so because, on this record,
Moore has not “show[n] a reasonable probability that, but for
the error, he would not have entered the plea.” United States
v. Robinson, 587 F.3d 1122, 1130 (D.C. Cir. 2009) (quoting
Dominguez Benitez, 542 U.S. at 83).
Our review of the record confirms that Moore knowingly
pled guilty to Student Aid Fraud as described in Count One of
the Information. There is nothing to suggest that he was the
least bit confused by the terms of the Plea Agreement.
Moore’s intelligence and sophistication, the simplicity of the
charges against him, and his own statements at the plea
hearing leave little doubt about this. The District Court
described Moore as a “really bright fellow.” Tr. of Sentencing
Hr’g at 37, reprinted in J.A. 136. Moore was represented by
counsel throughout the proceedings. The Section 1097(a)
false-statement charges against him are “straightforward,”
Ranum, 96 F.3d at 1025, and Moore’s statements throughout
the proceedings indicate his comprehension of the false-
statement charges against him, see, e.g., Tr. of Plea Hr’g at 4-
5, reprinted in J.A. 42-43 (acknowledging recent review of
Plea Agreement before entering plea); see also Tr. of
Sentencing Hr’g at 28, reprinted in J.A. 127 (expressing
“deep remorse” for how he “pursued [his] education”). It is
clear that Moore was fully aware of the charges against him.
Furthermore, the record is devoid of any indication that
Moore even considered a plea other than guilty. Prior to the
14
plea hearing, Moore stipulated in his Statement of Offense to
the false-statement conduct that constituted Student Aid
Fraud. In addition, Moore and his counsel both confirmed that
he had reviewed the written Plea Agreement in advance of the
plea hearing. And the record indicates that Moore benefitted
from the Plea Agreement because the Government agreed to a
two-level reduction in Moore’s offense level for sentencing in
exchange for his guilty plea.
It is also significant that, following the prosecutor’s
proffer of facts, Moore indicated that he had heard “what the
prosecutor said [he] did” and affirmed that he did not disagree
with the Government’s description of his student-aid fraud.
Tr. of Plea Hr’g at 18, reprinted in J.A. 56. Thus, the
Government convincingly argues that, throughout this case,
Moore understood the nature of the charges against him on all
counts. There is no indication that, but for the District Court’s
error in reciting the elements of Moore’s Student Aid Fraud,
Moore’s plea would have been different. Therefore, Moore
has failed to demonstrate plain error as required by
Dominquez Benitez. See 542 U.S. at 83. Likewise, Moore has
failed to demonstrate any effect on “the fairness, integrity, or
public reputation of judicial proceedings” based on the
District Court’s error, as required under the fourth element of
Olano. 507 U.S. at 736 (citation omitted) (internal quotation
marks omitted). The trial judge’s misstatement of the
elements of Count One during the plea colloquy did not result
in plain error.
B. Criminal History Calculations
Moore also objects to the District Court’s acceptance of
the PSR’s calculation of his Criminal History under the
Sentencing Guidelines. Because Moore waived his earlier
written objection on this issue at the sentencing hearing, he
15
can no longer pursue this issue on appeal. See United States v.
Rogers, 918 F.2d 207, 212 (D.C. Cir. 1990) (“If . . . a lawyer
has acquiesced in a ruling he once claimed was erroneous, the
lawyer must reassert his prior objection if he expects to
preserve it for appeal.”) (citation omitted). Furthermore,
Moore’s withdrawal of his objection constituted an invitation
to any error that the PSR’s Criminal History calculation
created, further precluding appeal. See Wagner v. Taylor, 836
F.2d 596, 599 (D.C. Cir. 1987) (“It has long been settled that
on appeal a litigant cannot avail himself of an error that he
induced the court under review to commit.” (footnote
omitted)); United States v. Wiggins, 530 F.2d 1018, 1020
(D.C. Cir. 1976) (an appellant is “precluded from assigning as
error an instruction which his counsel specifically requested
and approved”).
Moore filed written objections to the Criminal History
calculations in the PSR, which the probation officer
acknowledged in an addendum. In its Memorandum in Aid of
Sentencing, the Government acknowledged that, in the Plea
Agreement, the parties had stipulated that Moore’s Criminal
History was Category II. However, “[a]t the time of the plea,
the government was unaware of the full extent of [Moore’s]
criminal history.” Gov’t’s Mem. in Aid of Sentencing at 8 n.4,
reprinted in J.A. 75. Once Moore’s additional offenses came
to light, the Government amended its assessment of Moore’s
Criminal History and adopted the PSR’s Category V Criminal
History calculation.
At the sentencing hearing Moore, through counsel,
withdrew his earlier written objections, stating that “the
calculations by the probation officer of 57 to 71 [months] are
calculated correctly with the Criminal History to a Category
[V], so, therefore, that’s the range [for sentencing].” Tr. of
Sentencing Hr’g at 2, reprinted in J.A. 101. Moore then stated
16
that he “accept[ed] as accurate” the “calculations of the
probation officer” and was “completely satisfied . . . with the
accuracy of the [PSR].” Id. at 2-3, reprinted in J.A. 101-02.
The Government moved for an additional two-level reduction
to Moore’s sentence, which the District Court took into
account in sentencing Moore to 50 months. Based on Moore’s
unequivocal withdrawal of his objections to the PSR’s
calculation of Moore’s Criminal History, we decline to review
Moore’s claims.
Moore contends that there could have been no strategic
reason for his trial counsel’s withdrawal of the objection to
the Criminal History calculation and, therefore, he should be
permitted to pursue this issue on appeal. This court has no
sure way to determine whether counsel’s concession was
“strategic.” It is possible that Moore may have waived his
objection to the Criminal History calculation in exchange for
the two-level reduction in his sentence. Or, as the
Government suggests, Moore’s attorney may have withdrawn
the objection because he determined that the PSR calculation
of Moore’s Criminal History was correct. We do not know
and it does not matter. Even if we could determine counsel’s
reasons for the concession, the District Court was entitled to
rely on counsel’s withdrawal of his earlier objection. This is
the consequence of a waiver. See United States v. Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002) (refusing to consider
defendant’s objections to Criminal History calculation after
defendant withdrew his earlier objection prior to sentencing
and holding that “[a] party who identifies an issue, and then
explicitly withdraws it, has waived the issue”).
Finally, Moore argues that even if the District Court
reasonably accepted the PSR’s Criminal History calculation,
the court failed to enter sufficient factual findings on the
subject and, therefore, the case should be remanded for such
17
findings. Rule 32(i)(3)(B) requires that, at sentencing, the
court “must – for any disputed portion of the [PSR] or other
controverted matter – rule on the dispute or determine that a
ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter
in sentencing.” FED. R. CRIM. P. 32(i)(3)(B). The Government
correctly points out that Rule 32(i)(3)(B) is inapposite
because, after Moore’s withdrawal of his objections, there
was no “disputed portion” of the PSR. As a result, the District
Court properly relied on Rule 32(i)(3)(A), which states that, at
sentencing, the court “may accept any undisputed portion of
the [PSR] as a finding of fact.” FED. R. CRIM. P. 32(i)(3)(A);
see also, e.g., United States v. Ventura, 650 F.3d 746, 749
(D.C. Cir. 2011) (relying on the PSR, “which under Rule
32(i)(3)(A) the court may find as fact unless disputed”), cert.
denied, 132 S. Ct. 1856 (2012). Once Moore withdrew his
objections to the PSR, the District Court properly adopted the
then-undisputed calculation of Criminal History as a finding
of fact.
C. Restitution
Moore also objects to the amount of restitution ordered
by the District Court, both in the aggregate and to numerous
specific victims. The parties’ modified Plea Agreement
expressly assigned authority to the District Court, with the
assistance of the United States Probation Office, to resolve
any disputes over restitution. We review de novo issues of
statutory interpretation, e.g., United States v. Papagno, 639
F.3d 1093, 1095-96 (D.C. Cir. 2011) (citation omitted), and
the District Court’s interpretation of the parties’ plea
agreement, e.g., United States v. Anderson, 545 F.3d 1072,
1077 (D.C. Cir. 2008) (citation omitted).
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“Federal courts have authority to order restitution solely
pursuant to statute.” Id. (citation omitted). The court may
order restitution “to any victim of [a qualifying] offense.” 18
U.S.C. § 3663(a)(1)(A); see also 18 U.S.C. § 3663A(a)(1).
“The court may also order, if agreed to by the parties in a plea
agreement, restitution to persons other than the victim of the
offense.” 18 U.S.C. § 3663(a)(1)(A). And the court may
“order restitution in any criminal case to the extent agreed to
by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3);
see also 18 U.S.C. § 3663A(a)(3) (“The court shall also order,
if agreed to by the parties in a plea agreement, restitution to
persons other than the victim of the offense.”); see also, e.g.,
United States v. Silkowski, 32 F.3d 682, 688-89 (2d Cir. 1994)
(noting that Section 3663(a)(3) provides courts with the
authority to order “restitution beyond the offense of
conviction when the defendant agrees to such in a plea
agreement” (citation omitted) (internal quotation marks
omitted)).
The parties’ Plea Agreement authorizes the District Court
to set the amounts of restitution due to all of Moore’s victims
pursuant to both Section 3663 and 3663A. Plea Agreement at
5, reprinted in J.A. 17. More importantly, the Plea Agreement
explicitly provides that restitution will be due to victims of all
of Moore’s criminal conduct, not just his offenses of
conviction. Id.Moore argues that the language stricken from the Plea
Agreement, which required his acknowledgement that some
restitution was due to each of his victims, indicates that the
parties did not agree that restitution was due to all victims.
The Government counters that the language retained in the
Plea Agreement is clear on its face and, therefore, the stricken
language is irrelevant. See Iberdrola Renewables, Inc. v.
FERC, 597 F.3d 1299, 1304 (D.C. Cir. 2010) (“If a contract is
19
not ambiguous, extrinsic evidence cannot be used as an aid to
interpretation.” (citation omitted) (internal quotation marks
omitted)). We agree that the stricken language is irrelevant
because its deletion in no way undercuts Moore’s promise to
pay restitution to victims of all of his criminal conduct, not
just his offenses of conviction.
Furthermore, as noted above, the Plea Agreement clearly
delegates authority to the District Court to resolve any
differences between the parties regarding the amount of
restitution to be paid and to whom. This delegation of
authority eliminates any potential ambiguity in the parties’
agreement on restitution. See United States v. Heard, 359
F.3d 544, 554 (D.C. Cir. 2004) (finding permissible
delegation where “both parties agreed to disagree – and
expressly agreed to leave the matter for the district court to
resolve”); see also Anderson, 545 F.3d at 1080 n.7 (approving
of a delegation to the district court of authority to determine
the amount of restitution and noting that “while the parties
may agree to a specific amount or to a cap on restitution, such
an agreement is not required under section 3663(a)(3)”
(citations omitted)).
The parties surely were within their rights to write the
Plea Agreement as they did because “any means [of
establishing the amount due in restitution] acceptable to the
defendant is proper. . . . [And a] defendant may . . . delegate
the power to the judge.” United States v. Peterson, 268 F.3d
533, 535 (7th Cir. 2001). In sum, the “parties’ conduct plainly
evinced their intent that the District Court could order
restitution” to persons other than the victims of the offenses to
which Moore pled guilty and that the District Court’s
restitution determination was proper. Anderson, 545 F.3d at1079 (citing Heard, 359 F.3d at 554).
20
Finally, Moore contends that the District Court’s
restitution order was inappropriate because the trial judge
failed to check the box on the Judgment form to specify that
the “[r]estitution amount [is] ordered pursuant to plea
agreement.” Judgment at 6, reprinted in J.A. 153. The
Government responds that the District Court’s decision not to
check the box was appropriate because it determined the
amounts of restitution due to Moore’s victims based on the
authority granted to the court under the Plea Agreement, not
based on any amounts of money specified in the Plea
Agreement. We agree.
In sum, we hold that the Plea Agreement was lawful and
reasonable, and that the District Court properly exercised its
authority under the agreement. We also find that the District
Court’s determinations on restitution were lawful and fully
justified. We find no basis to reverse or remand the order of
restitution.
D. Alleged Ineffective Assistance of Counsel at Trial
Finally, Moore claims that he was deprived of his Sixth
Amendment right to counsel because his trial attorney was
ineffective. Under established law, it is very difficult for a
convicted defendant to prevail on a claim of ineffective
assistance of counsel:
A convicted defendant’s claim that counsel’s
assistance was so defective as to require reversal of a
conviction . . . has two components. First, the defendant
must show that counsel’s performance was deficient.
This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires
21
showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that
renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also,
e.g., United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997)
(applying Strickland). “The latter prong requires the
defendant to demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” United States v.
Cassell, 530 F.3d 1009, 1011 (D.C. Cir. 2008) (citation
omitted) (internal quotation marks omitted). Our review of
counsel’s conduct is “highly deferential” and we are bound by
“a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689.
Moore supports his claim of ineffective assistance with
only a bare sketch of alleged errors committed by his trial
counsel. First, Moore argues that
the papers filed by [trial] counsel show a glaring
ignorance on basic principles of both plea proceedings and
the Sentencing Guidelines. For example, in the substantial
papers filed by Moore’s counsel, he repeatedly challenged
factual matters to which Moore had already admitted by
signing the Statement of the Offense. Many of the factual
disputes raised in counsel’s pleadings did not affect the
issue of sentencing – which should have been counsel’s
focus once the plea had been entered and the Statement of
Offense had been signed. If counsel believed the facts
concerning guilt were still in dispute, he should have
22
either advised his client not to take the plea or later
advised him to move to withdraw the plea.
Appellant’s Br. at 29 (citation omitted). Second, Moore
asserts that
[trial] counsel also did not have a basic grasp of the
Sentencing Guidelines themselves. Counsel argued that
interest and finance charges should not be included in the
restitution figure. For support for this incorrect
proposition, counsel repeatedly cited to U.S.S.G.
§2B1.1(3)(D)(i). However, that section applies to
establishing the amount of loss used for establishing a
base offense level, not toward restitution for which the
Guidelines includes interest and finance charges.
Id. at 29-30 (citation omitted). Moore then concludes that
“counsel’s ineffective representation prejudiced Moore at
sentencing.” Id. at 30.
Moore’s critique of his trial counsel may have some
force. The problem, however, is that the conclusion that
Moore draws from his critique of trial counsel – i.e., that
counsel’s ineffective representation prejudiced Moore at
sentencing – has not been demonstrated. We agree with the
Government that Moore’s “conclusory claims come nowhere
close to overcoming the strong presumption that appellant’s
counsel rendered adequate assistance. At any rate, even if
they did, appellant has not shown a reasonable probability
that, absent these ‘deficiencies,’ appellant would have
received a different sentence.” Appellee’s Br. at 50. We agree
that there is nothing in this record to indicate that but for
counsel’s alleged poor performance, the result of the
sentencing proceeding would have been different and more
favorable to Moore. In short, we cannot find that Moore
suffered “prejudice” as required by Strickland.
23
Furthermore, it is noteworthy that, at the close of
sentencing, the District Court judge declared that Moore’s
trial counsel “did as best as he possibly could to present
[Moore] in the most favorable light.” Tr. of Sentencing Hr’g
at 41, reprinted in J.A. 140. This declaration by the trial
judge, who was responsible for sentencing, certainly
undercuts Moore’s contention that his trial attorney was
ineffective. The District Court’s assessment at least suggests
that Moore’s 50-month sentence “was a product of appellant’s
brazen criminal conduct and not some deficiency in counsel’s
performance.” Appellee’s Br. at 51.
III. Conclusion
For the foregoing reasons, the judgment of the District
Court is affirmed.