UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4499
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY LEE MOORE, a/k/a Bug,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00031-4)
Submitted: March 22, 2007 Decided: March 27, 2007
Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
M. Victoria Jayne, Hickory, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Lee Moore pled guilty pursuant to a plea agreement
to one count of conspiracy to possess with intent to distribute
fifty grams or more of a mixture or substance containing a
detectable amount of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1); 846 (2000). The district court sentenced Moore to
154 months’ imprisonment. We find no error and affirm Moore’s
conviction and sentence.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), arguing the Government breached
the terms of the plea agreement by failing to recommend a two-level
reduction under U.S. Sentencing Guidelines Manual § 3E1.1(a)
(2005), as well as move for an additional one-level reduction under
§ 3E1.1(b). Moore, however, “admits” in his pro se supplemental
brief that the Government did not breach the plea agreement.
Instead, Moore contends that the district court erred in its
application of § 3E1.1(a). The Government elected not to file a
responsive brief.
Initially, Moore’s counsel contends that the Government
breached the plea agreement by refusing to recommend and move for
a reduction under § 3E1.1. However, because the Government’s
recommendation and motion were conditioned upon Moore’s compliance
with the conditions of pre-sentence release, and Moore acknowledges
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in his pro se supplemental brief that he did not comply, we
conclude that the Government did not breach the plea agreement.
Moore contends that the district court erred in its
application of § 3E1.1(a) by considering unrelated, post-indictment
misconduct in making its determination as to whether a reduction
was warranted. When reviewing the district court’s application of
the Sentencing Guidelines, we review findings of fact for clear
error and questions of law de novo. United States v. Green, 436
F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Because post-indictment misconduct may be considered in determining
whether a defendant qualifies for an acceptance of responsibility
reduction, see, e.g., United States v. Underwood, 970 F.2d 1336,
1339 (4th Cir. 1992) (per curiam) (determining post-indictment drug
use was sufficient to support decision not to reduce offense level
under § 3E1.1), we conclude the district court did not err in its
application of § 3E1.1(a).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Moore’s conviction and sentence.
This court requires that counsel inform her client, in writing, of
his 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 this court for leave to withdraw from
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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 in the
decisional process.
AFFIRMED
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