USA v. Rakeem Moore

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10888
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAKEEM MOORE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00023-SCB-SPF-1
____________________
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2 Opinion of the Court 22-10888
Before BRANCH , LAGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Rakeem Moore appeals his convictions and sentence of 200
months’ imprisonment for brandishing a firearm during and in re-
lation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Moore makes two arguments on appeal. First, he
argues that the district court plainly erred by accepting his guilty
plea when it did not specifically inform him of the elements of the
Hobbs Act robbery offenses that served as the underlying crimes of
violence for his Section 924(c) convictions. Second, Moore con-
tends that his total sentence is substantively unreasonable because
the district court over-emphasized his juvenile criminal history. Af-
ter careful review and addressing each argument in turn, we affirm.
First, Moore contends that the district court plainly erred
during the plea colloquy by not setting forth the elements of a
Hobbs Act robbery offense, which is the “crime of violence . . . in
furtherance of” which Moore “brandished” a firearm in violation
of Section 924(c)(1)(A)(ii)—twice. We review the district court’s ac-
ceptance of a guilty plea for plain error when a defendant fails to
object to a violation of Federal Rule of Criminal Procedure 11.
United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005).
Moore agrees that his failure to object to the court’s acceptance of
his guilty plea means that the plain error standard governs our re-
view.
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22-10888 Opinion of the Court 3
To prevail under the plain error standard, Moore must es-
tablish the district court committed (1) an error, (2) that is plain, (3)
that impacts Moore’s substantial rights, and (4) that “seriously af-
fects the fairness, integrity or public reputation of judicial proceed-
ings.”
Id. at 1019 (cleaned up). Moore cannot satisfy these require-
ments.
In evaluating whether a Rule 11 error has occurred, we look
to Rule 11’s three “core objectives,” which are ensuring that (1)
“the guilty plea is free of coercion,” (2) “the defendant understands
the nature of the charges against him,” and (3) “the defendant is
aware of the direct consequences of the guilty plea.”
United States
v. Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003). However, “[t]here
is no rigid formula or ‘mechanical rule’ for determining whether
the district court adequately informed the defendant of the nature
of the charges.”
United States v. Presendieu, 880 F.3d 1228, 1238
(11th Cir. 2018) (quoting
United States v. Camacho, 233 F.3d 1308,
1314 (11th Cir. 2000)). Instead, “[d]istrict courts must ensure, one
way or another, that the defendant knows and understands the na-
ture of the offenses to which he or she is pleading guilty.”
Id. A
district court “plainly errs where its plea colloquy is so deficient
that it results in a total or abject failure to address Rule 11’s core
principle, to wit that a defendant understands the nature of the
charges against him.”
Id. And “in some cases, a factual proffer may
set forth in such detail the facts of the crime that it effectively in-
corporates the substance of the elements of the offense.”
Id. We
also review a district court’s finding “that the defendant
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4 Opinion of the Court 22-10888
understood the nature of the charges and that the defendant had
entered a knowing a voluntary plea of guilty” for clear error.
Id.
Here, the district court explained to Moore the elements
that the government must prove to obtain convictions on counts
three and five of the indictment against Moore, which charged vi-
olations of Section 924(c)(1)(A)(ii). The court told Moore that for
the purposes of his offenses, the relevant crime of violence is 18
U.S.C. § 1951(a)—specifically, the violations of Section 1951(a)
charged in counts two and four of the indictment. The court also
explained that the government must prove beyond a reasonable
doubt that Moore committed those underlying offenses. When
asked, Moore said he understood the elements of counts three and
five. After explaining the maximum and minimum penalties for
those offenses, the district court confirmed with Moore that he un-
derstood “every word” of the plea agreement.
Then, the district court went over Moore’s plea agreement,
and Moore confirmed that he committed the two underlying rob-
beries and brandished a firearm while doing so. Specifically, Moore
admitted that it was true that he brandished a firearm at a Circle K
gas station, “ordered the store clerk to ‘put everything in the bag
and do what I say,’” and “took the items and fled.” And he admitted
it was true that he “pointed a silver revolver at the victim store
clerk and demanded money” at a Thorntons gas station and fled
the store with the money he stole. Finally, Moore admitted he in-
terfered with the abilities of the stores to participate in interstate
commerce by robbing them. The court found that Moore was
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22-10888 Opinion of the Court 5
“aware of the nature of the charges and the consequences of [his]
plea.”
Moore cannot establish that the district court plainly erred
because the “factual proffer . . . set[s] forth in such detail the facts
of the crime that it effectively incorporates the substance of the el-
ements of the offense.”
See Presendieu, 880 F.3d at 1239. A person
violates Section 1951(a) if he “obstructs, delays, or affects com-
merce . . . by robbery.” 18 U.S.C. § 1951(a). Section 1951(b)(1) de-
fines “robbery” as “the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual threatened force, or violence, or fear of
injury . . . to his person or property . . . at the time of the taking.”
Id. § 1951(b)(1). Although we have never held that a district court
must list or explain the elements of an underlying offense, which
merely serves as an element of the offense of conviction, the factual
proffer sufficiently established Moore’s awareness of these ele-
ments. That is, the factual proffer indicates that Moore understood
that he was pleading guilty to impacting interstate commerce by
unlawfully taking money from gas stations by threatening their
employees with firearms and the prospect of physical harm.
Second, Moore argues that his 200 months’ imprisonment
sentence, which is a 62-month downward variance from the guide-
lines range, is substantively unreasonable. We review the substan-
tive reasonableness of a sentence, considering the totality of the
circumstances, for an abuse of discretion.
See Gall v. United States,
552 U.S. 38, 51 (2007). “[T]he party who challenges the sentence
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6 Opinion of the Court 22-10888
bears the burden of establishing that the sentence is unreasonable
in the light of both [the] record and the factors in [18 U.S.C. §
3553(a)].”
United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.
2007) (quoting
United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005)). “The district court must evaluate all of the § 3553(a) factors
when arriving at a sentence but is permitted to attach great weight
to one factor over others.”
United States v. Shaw, 560 F.3d 1230,
1237 (11th Cir. 2009) (cleaned up). Accordingly, we must have a
“definite and firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors” to vacate
a sentence on substantive reasonableness grounds.
Id. at 1238.
The district court did not abuse its discretion when consid-
ering the Section 3553(a) factors and by sentencing Moore to a sen-
tence that is substantially shorter than the lower end of the guide-
lines range. That Moore’s sentence is far below the statutory-max-
imum term of life imprisonment,
see 18 U.S.C. § 924(c)(1)(A)(ii),
strongly suggests reasonableness.
See United States v. Gonzalez,
550 F.3d at 1319, 1324 (11th Cir. 2008). And although Moore con-
tends that the district court over-considered his juvenile criminal
conduct, the district court could consider his background and past
conduct when assessing the need to deter and protect the public
from Moore.
See Amedeo, 487 F.3d at 832; 18 U.S.C. § 3553(a)(2).
Contrary to Moore’s assertion, the district court varied his sentence
downward because of his background and difficult upbringing. But
the district court limited its downward variance based on the need
for Moore to reform himself. The court considered all the Section
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22-10888 Opinion of the Court 7
3553(a) factors, too. For these reasons, we cannot say that the dis-
trict court committed a clear error in judgment when sentencing
Moore.
Moore makes two other arguments related to his sentence
that we briefly address. First, neither the government nor the court
needed to provide Moore notice that the court was imposing an
enhanced sentence on the ground that Moore qualified as a career
offender under U.S.S.G. § 4B1.1.
See Fed. R. Crim. P. 32(h) (requir-
ing a district court to give “the parties reasonable notice that it is
contemplating” a departure “from the applicable sentencing range
on a ground not identified for departure . . . in the presentence re-
port”). Even if we assume that an application of the career-offender
enhancement must comply with the notice requirements of Rule
32(h), Moore’s presentence report included the enhancement, and
Moore did not object to it. Second, Moore did not have to admit,
nor did a jury have to find, that he qualified for the enhancement
because the career-offender enhancement did not change Moore’s
statutory-maximum sentence of life imprisonment.
See Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000) (holding that “any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury”).
Accordingly, the district court is AFFIRMED.
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