United States of America v. Terri Moore

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-4296

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRI MOORE,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at
Columbia. J. Michelle Childs, District Judge. (3:18-cr-00628-JMC-3)

Submitted: April 30, 2020 Decided: May 19, 2020

Before MOTZ, AGEE, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South Carolina, for
Appellant. Kathleen Michelle Stoughton, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Terri Moore appeals the district court’s judgment after pleading guilty to possession
with intent to distribute 50 grams or more of methamphetamine and possession of firearms
in furtherance of drug trafficking. After sustaining Moore’s objection to an enhancement,
the district court denied her motion for a variance but sentenced her at the bottom of her
Guidelines range to 210 months on the drug count and a 60-month consecutive sentence
on the firearm count, totaling 270 months. On appeal, Moore’s attorney has filed a brief
under Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious grounds
for appeal but questioning whether the district court complied with Fed. R. Crim. P. 11 in
accepting her guilty plea, and whether it properly denied her motion for a variance. Moore
was notified of her right to file a pro se supplemental brief but has not done so. We affirm.
In federal cases, Rule 11 of the Federal Rules of Criminal Procedure “governs the
duty of the trial judge before accepting a guilty plea.” Boykin v. Alabama, 395 U.S. 238,
243 n.5 (1969). “Rule 11 sets out the information a court is to convey to ensure that a
defendant who pleads guilty understands the consequences of the plea.” United States v.
Nicholson, 676 F.3d 376, 381 (4th Cir. 2012). “The court also must determine that the plea
is voluntary and that there is a factual basis for the plea.” United States v. Williams, 811
F.3d 621, 622 (4th Cir. 2016). “Generally we review the acceptance of a guilty plea under
the harmless error standard.” Id. (citation omitted). “But when, as here, a defendant fails
to move in the district court to withdraw his or her guilty plea, any error in the Rule 11
hearing is reviewed only for plain error.” Id. (citation omitted).

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Because Moore did not assert any Rule 11 error or attempt to withdraw her guilty
plea in the district court, we review her Rule 11 issue for plain error. See United States v.
Lockhart, 947 F.3d 187, 191 (4th Cir. 2020). “To succeed under plain error review, a
defendant must show that: (1) an error occurred; (2) the error was plain; and (3) the error
affected his substantial rights.” Id. (citation omitted). “We retain the discretion to correct
such an error but will do so ‘only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. (citations omitted).
We have reviewed the record and conclude that Moore fails to show any plain error
affecting her substantial rights. The district court omitted the advice required under Rule
11(b)(1)(O) that a defendant who is not a United States citizen may be deported as a result
of her guilty plea, but Moore is a United States citizen who cannot be deported. The court
also omitted the advice under Rule 11(b)(1)(M) that in determining her sentence, the court
was obligated to calculate and consider the Guidelines range, possible departures, and other
sentencing factors under 18 U.S.C. § 3553(a); but the court confirmed that Moore had
discussed the Guidelines with her counsel; and a guilty plea may be knowing and intelligent
based on information received before the plea hearing. See Bradshaw v. Stumpf, 545 U.S.
175, 183 (2005); United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991).
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside,
or significantly outside the Guidelines range.’” United States v. Nance, __ F.3d __, 2020
WL 1918705, at *5 (4th Cir. Apr. 21, 2020) (quoting Gall v. United States, 552 U.S. 38,
41 (2007)). In evaluating the procedural reasonableness of a sentence, we “determin[e]

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whether the district court committed any procedural error, such as improperly calculating
the Guidelines range, failing to consider the § 3553(a) factors, or failing to adequately
explain the chosen sentence.” Id. (citing Gall, 552 U.S. at 51).
“As is well understood, to meet the procedural reasonableness standard, a district
court must conduct an individualized assessment of the facts and arguments presented and
impose an appropriate sentence, and it must explain the chosen sentence.” Id. (internal
quotation marks and citations omitted). “Specifically, a district court’s explanation should
provide some indication [] that the court considered the § 3553(a) factors and applied them
to the particular defendant, and also that it considered a defendant’s nonfrivolous
arguments for a lower sentence.” Id. (internal quotation marks and citations omitted).
“Importantly, it is also well established that our review of a district court’s sentencing
explanation is not limited to the court’s statements at the moment it imposes sentence.”
Nance, 2020 WL 1918705, at *5. “Where a sentencing court hears a defendant’s arguments
and engages with them at a hearing, we may infer from that discussion that specific
attention has been given to those arguments.” Id. (citation omitted).
“If the sentence ‘is procedurally sound, [we] should then consider the substantive
reasonableness of the sentence,’ taking into account the totality of the circumstances.”
United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019) (quoting Gall, 552 U.S. at
51). A sentence within the Guidelines range is presumptively reasonable. United States v.
Smith, 919 F.3d 825, 841 n.12 (4th Cir. 2019) (citation omitted). A defendant can only
rebut the presumption by showing the sentence is unreasonable when measured against the
18 U.S.C. § 3553(a) factors. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

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We have reviewed the record and conclude that the district court did not commit
any procedural error in sentencing Moore, and she fails to rebut the presumption that her
sentence is substantively reasonable. The court properly calculated the Guidelines range;
gave the parties an opportunity to argue for an appropriate sentence; considered the
§ 3553(a) factors and Moore’s nonfrivolous arguments for a lower sentence; and
adequately explained the chosen sentence. The court agreed with the Government that a
Guidelines range sentence was appropriate based on the nature and seriousness of the
offense, involving multi-kilogram quantities of methamphetamine while in possession of
firearms; but the court imposed a sentence at the bottom of the range upon consideration
of her cooperation, substance abuse addiction, mental health history, criminal history, and
all of the other characteristics and arguments asserted by Moore and her attorney.
In accordance with Anders, we have reviewed the entire record and have found no
meritorious issues for appeal. We therefore affirm the district court’s judgment. This court
requires that counsel inform his or her 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, 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 the client. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED