United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2004 Decided January 11, 2005
No. 03-3119
United States of America,
Appellee
v.
Ricky Moore,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00104-01)
Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant Ricky Moore. With her on the briefs was
A. J. Kramer, Federal Public Defender. Mary M. Petras and
Neil H. Jaffee, Assistant Federal Public Defenders, entered an
appearance for appellant Ricky Moore.
Thomas J. Tourish, Jr., Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Alexander D. Shoaibi
and John P. Mannarino, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and HENDERSON and
ROBERTS, Circuit Judges.
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Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Ricky Moore appeals his
conviction for possession of a firearm by one “who has been
convicted in any court of ... a crime punishable by imprisonment
for a term exceeding one year,” 18 U.S.C. § 922(g)(1). He
argues the police did not have a reasonable suspicion he was
engaged in criminal activity, wherefore they were not authorized
to seize him pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and
the gun discovered as a result of that seizure must be suppressed.
Considering the totality of the circumstances -- it was four
o’clock in the morning when police officers observed a taxicab
starting and stopping several times in an area where someone
would not generally be picked up or dropped off by a taxicab
and where taxicab drivers had recently been robbed -- we hold
the police had reason to suspect the taxicab driver was being
robbed and to stop his taxicab and thereby seize the passenger,
Moore.
Moore also appeals his sentence, claiming first the
ineffectiveness of his counsel caused him to forfeit an additional
one-level reduction for acceptance of responsibility under §
3E1.1(b) of the United States Sentencing Guidelines. We hold
the performance of Moore’s counsel was not deficient, let alone
constitutionally deficient. Alternatively, Moore argues we
should remand his case to the district court for a new sentencing
hearing because the district court improperly relied upon the
Government’s preparation for the suppression hearing in
denying his request for relief under § 3E1.1(b)(2), and failed to
rule upon his request for relief under § 3E1.1(b)(1). We
conclude the district court did neither. We therefore affirm both
Moore’s conviction and his sentence.
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I. Background
Shortly after 4:00 a.m. on February 13, 2003 Lieutenant
Nathan Sims and his watch commander, Lieutenant Debra
Manigault, were traveling south on Interstate 295 near the 1000
block of Kenilworth Avenue, N.E., a location Lt. Sims
characterized as part of “a high crime area” in general and
specifically as an area where there had recently been “crimes
involving cabs.” Lt. Sims “observed a cab on the service road”
alongside Kenilworth, which is a “ramp” used to “get on 295 or
to proceed straight onto Burroughs Avenue.” Although there
were several houses in the vicinity, Lt. Sims first saw the taxicab
stopped in an area where there was “nothing ... but open field,
grassy area” -- not a place where one would normally hail or
alight from a taxicab. The taxicab had “its interior light on ....
with an individual sitting in the back seat.” Lt. Sims “observed
the cab driver start moving, and all of a sudden he stopped. He
did this maybe two or three times.” Lt. Sims immediately
suspected the driver was in danger: “I told my partner, hey, this
cab driver is about to get robbed.”
Lt. Sims stopped the taxicab and ordered the passenger,
Ricky Moore, to get out. Lt. Sims then frisked Moore and
discovered a firearm in his possession. Moore was arrested and,
having previously been convicted of an offense punishable by
more than one year’s imprisonment, was charged with violating
18 U.S.C. § 922(g)(1).
Moore later moved to suppress the gun, pursuant to the
Fourth Amendment to the Constitution of the United States, on
the ground that the police did not have a reasonable suspicion
upon the basis of which to stop the taxicab. After a hearing, the
district court, although it considered the question “somewhat
close on the facts,” denied Moore’s motion. Thereafter the
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Government offered Moore a conditional plea agreement,
reserving Moore’s right to appeal the district court’s denial of
his motion to suppress. Moore’s counsel, Mr. Billy Ponds,
asked the court to schedule the plea for the following week, and
the court set it down for April 25. When that day came,
however, Moore had decided not to plead guilty. As Mr. Ponds
explained to the court:
Your Honor, Mr. Moore has indicated to me that it’s his
desire to have a trial. This decision is his decision. I’ve
consulted with him in terms of my opinion ... but, you
know, as I’ve told him, despite anybody’s opinion, he has
a constitutional right to have a trial, despite how anybody
feels about the evidence. And I’d ask the Court to set a trial
date.
When the court thereupon questioned Moore himself about his
decision, the defendant stated, “I’m confused .... I was led to
believe that my case was going to be dismissed .... Now it’s
plead guilty.” The district court explained to Moore that,
although the court had already denied his motion to suppress,
Moore would be able to appeal that issue regardless whether he
pleaded guilty or went to trial; “the difference is in the
sentence.” The court went on to estimate Moore’s sentence,
and to explain the potential reductions for acceptance of
responsibility under § 3E1.1(a) and (b).
After diligently explaining the plea agreement to Moore, the
court asked the parties how they wished to proceed, and Moore
said, “I just want to ask my mother.” The court obliged with a
short recess, after which Moore stated he wanted to plead guilty.
Beginning the process of accepting the plea, the court informed
Moore that “in addition to advising you of your rights I’m going
to ask you questions about what happened and you’re going to
have to admit that you did it.” Moore balked: “What do you
5
mean I’ve got to admit that I did it?” The court explained that
Moore would have to admit to the facts recounted in the plea
agreement, which Moore had acknowledged he had read and
discussed with Mr. Ponds.
Hearing Moore’s confusion, the court offered Moore an
opportunity to reconsider his plea:
Do you want to plead guilty today? Do you want to talk
about it some more with your mother and with your lawyer?
Some day there’s going to come a point where you’re going
to have to make a decision. It doesn’t have to be today. If
you’re not ready to plead guilty, we can set a trial date and
see what happens in the next couple of days.
At that point, Mr. Ponds made the following comment, upon the
basis of which Moore now claims he provided constitutionally
deficient assistance:
Judge, I don’t feel comfortable at this point in terms if
a plea was taken today, and this is just my opinion. Mr.
Moore can speak for himself. That the question of
voluntariness -- I know the mother has spoken to him
extensively .... I would ask the Court -- we can select a trial
date. I would still like to have the opportunity to come back
before the Court before the trial date to let the Court know
whether or not he wants to accept the plea. Hopefully the
Government will allow the plea to remain open. So that it
could never be alleged that well, you know, I pled guilty
because my mother told me to do it and, you know, I pled
guilty because of her, and the judge gave me time and she
pressured me and ... Mr. Ponds pressured me. I just don’t
feel comfortable with that .... I know that Mr. Moore is
aware of all the contents of the plea agreement, he’s had it
in his possession for at least more than 24 hours, and what
6
I would ask the Court to do, and also in fairness to him ... to
give him another opportunity to just let it all kind of settle
in and let us come back before the Court where all of this
advice that he’s received has settled in and ultimately it
should be an easy decision for him then.
In response, the Government agreed it “would not revoke
the plea offer,” and the district court then set the trial for May 2,
asking counsel how many witnesses there might be and for
submissions of voir dire questions and of jury instructions. The
court also instructed them that “if in the meantime ... you all
have further discussions and Mr. Moore decides he ... want[s] to
plead guilty instead of going to trial, talk to [the clerk] about
when you can come in.”
In the interim, however, difficulties between Moore’s
family and Mr. Ponds caused the lawyer to file a motion to
withdraw as counsel. On May 20, those difficulties apparently
having been resolved, the court noted that “Mr. Moore wants
Mr. Ponds as his lawyer and we’re going to have a trial,” which
the court then re-scheduled for June 9.
When the day for trial came the district judge who had
handled the case theretofore was unavailable and another judge
proceeded in his absence. To apprise the court of the
background, Mr. Ponds stated:
The case has gone back and forth. We’ve litigated the
pretrial motions in this case and they’ve been denied. There
was a plea offer extended to Mr. Moore which Mr. Moore
signed. The plea agreement was fully explained to him by
me on two different occasions. Judge Friedman took
probably about 30 minutes going through aspects of the
plea with Mr. Moore. I spoke with Mr. Moore this
morning. He indicates he doesn’t understand the plea offer.
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He’s indicated -- there’s some indication he wants to go to
trial.
The court then heard from Moore, who said:
I don’t understand the plea and I’m trying to get new
counsel because my mother can’t afford to pay Billy Ponds.
She said she couldn’t .... I didn’t say I didn’t want to do it.
I just want to know what I’m getting myself into before I do
it .... I don’t really understand it .... I mean what am I
facing and everything.
Upon hearing all this, the court decided that Mr. Ponds’
relationship with Moore “may not be a fully successful attorney-
client relationship”; the court therefore appointed the Federal
Public Defender to take over as Moore’s counsel and recessed
to allow the new counsel a chance to confer with Moore. Even
after new counsel had “discuss[ed] the guidelines extensively”
with Moore, and “talked in detail about the various
possibilities,” however, Moore was still “not prepared to go
forward with the plea” that day. Counsel informed the court that
Moore again wanted a chance to speak with his family “to help
him make this decision.” The court again obliged but warned,
“He’s either going to plea[d] on Friday [June 13] or he’s not
going to plea[d]. Enough of this yes I am, no, I’m not, yes, I
am, no, I’m not.” On June 13 Moore pleaded guilty.
Under § 3E1.1(a) of the United States Sentencing
Guidelines in effect as of the date of Moore’s offense,* the
*
The version of § 3E1.1 in effect when Moore committed
his offense permitted the district court to reduce a defendant’s
sentence by three levels for his acceptance of responsibility
regardless of the Government’s position. Under the 2003
amendments to the Sentencing Guidelines, the district court may
8
district court may reduce by two the offense level of a defendant
who “clearly demonstrates acceptance of responsibility for his
offense.” A defendant who qualifies for a decrease under §
3E1.1(a) may receive an additional reduction of one level under
§ 3E1.1(b) if he
has assisted authorities in the investigation or prosecution
of his own misconduct by ...
(1) timely providing complete information to the
government concerning his own involvement in the offense;
or
(2) timely notifying authorities of his intention to enter
a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the court to allocate its
resources efficiently.
At sentencing, the district court granted Moore a two-level
reduction for acceptance of responsibility under § 3E1.1(a) but
denied him the additional one-level reduction available under
subsection § 3E1.1(b). In so doing, the court agreed with
defense counsel that “there may have been a failure of
communication between Mr. Ponds and Mr. Moore ... and ... that
ought not to be held against Mr. Moore.” Nevertheless, the
court concluded, “Clearly the government prepared for trial --
they didn’t just have to prepare for a motions hearing but they
had to file voir dire questions, other filings and jury
instructions.” Accordingly, pursuant to the Guidelines, the court
calculated Moore’s offense level at 20 which, with his Category
II Criminal History, yielded a range of 37–46 months.
still grant a two-level reduction, but the third level may be granted
only “upon motion of the government.”
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The court sentenced Moore to 40 months’ imprisonment.
With the additional one-level reduction, Moore’s range would
have been 33–41 months.
II. Analysis
Moore presses two primary contentions on appeal. First,
Moore argues the district court erred in denying his motion to
suppress the gun because the police did not have a reasonable
suspicion upon the basis of which to stop the taxicab. Second,
Moore argues Mr. Ponds provided constitutionally ineffective
assistance because he “intervened to stop the plea proceedings
... and asked the court to schedule a trial instead,” thereby
causing Moore to forfeit the additional one-level reduction for
acceptance of responsibility under § 3E1.1(b) of the Sentencing
Guidelines. Alternatively, Moore argues we should remand the
case for the district court to reconsider whether he is entitled to
the third-level reduction because the district court improperly
relied upon the Government’s preparation for the suppression
hearing in denying him relief under § 3E1.1(b)(2) and failed to
rule upon his request under § 3E1.1(b)(1).
A. The Stop
A police officer “may briefly detain a citizen if he has a
reasonable, articulable suspicion that criminal activity may be
afoot.” United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir.
2001). This “reasonable suspicion” standard is “less demanding
... than probable cause ....” Illinois v. Wardlow, 528 U.S. 119,
123 (2000). In any particular case, “the question of whether
reasonable suspicion existed can only be answered by
considering the totality of the circumstances as the officer on the
scene experienced them.” Edmonds, 240 F.3d at 59.
We review the district court’s findings of “historical fact”
10
only for clear error, giving “due weight to inferences drawn
from those facts by ... local law enforcement officers.” Ornelas
v. United States, 517 U.S. 690, 699 (1996). We review de novo
the district court’s determination that, in the circumstances of
this case, the arresting officer had a reasonable suspicion Moore
was “breaking, or [was] about to break, the law.” Edmonds, 240
F.3d at 59.
The court’s “first task” in applying Terry v. Ohio “is to
establish at what point in this encounter the Fourth Amendment
becomes relevant.” 392 U.S. 1, 16 (1968). The Government
and Moore agree he was “seized” within the meaning of that
amendment when Lt. Sims stopped the taxicab in which he was
a passenger. The issue that divides them is whether at that
moment the police had a reasonable suspicion Moore was
attempting to rob the driver.
Considering the totality of the circumstances, we conclude
the police were justified in stopping the taxicab when they did.
Lt. Sims had observed the taxicab starting and stopping several
times at a place “where people wouldn’t normally get a cab or
get dropped off from a cab.” Such erratic movements would
naturally strike a police officer as suspect. They were rendered
even more suspicious considering it was 4:00 a.m. in a high-
crime area where there had recently been robberies of taxicab
drivers. As the Supreme Court has noted, “officers are not
required to ignore the relevant characteristics of a location in
determining whether the circumstances are sufficiently
suspicious to warrant further investigation.” Wardlow, 528 U.S.
at 124. The location is particularly probative in this case
because “the government established not just that [the area]
suffers from general, undifferentiated ‘crime,’ but that it is home
to the precise type of infractions ... [the officer] suspected.”
Edmonds, 240 F. 3d at 60.
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Of course, as Moore points out, there are plausible non-
criminal explanations of everything the officers saw. Moore
instances: “At that time of year and hour of the morning, snow
or water in the road could have turned to ice and it might have
been prudent for the driver to test his brakes,” or perhaps
“someone could have been consulting a map.” No doubt. Our
inquiry, however,
does not deal with hard certainties, but with probabilities.
Long before the law of probabilities was articulated as such,
practical people formulated certain common sense
conclusions about human behavior; jurors as factfinders are
permitted to do the same -- and so are law enforcement
officers.
United States v. Cortez, 449 U.S. 411, 418 (1981). Lt. Sims’
suspicion the taxicab driver was being robbed was among the
most probable explanations for the peculiar circumstances he
observed; it was reasonable to suspect that a taxicab driver,
while being robbed, would behave erratically, whether from
shock or confusion, or perhaps in the hope of attracting the
attention of the police.
We conclude, therefore, the police had a reasonable
suspicion upon the basis of which to stop the taxicab. Moore
does not contest the lawfulness of the frisk incident the stop.
Hence we affirm the district court’s denial of Moore’s motion to
exclude the gun from evidence.
B. Relief Under § 3E1.1(b)
Moore makes three arguments respecting the third-level
reduction for acceptance of responsibility under the Sentencing
Guidelines, as detailed below.
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1. Ineffective assistance of counsel
In order to succeed upon his claim of ineffective assistance
of counsel, Moore must prove (1) Mr. Ponds “made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” and (2)
there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687,
694 (1984). In this context a “reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. As we have recently explained,
Due to the fact-intensive nature of the Strickland inquiry
and the likelihood, when a defendant asserts his sixth
amendment claim for the first time on direct appeal, that the
relevant facts will not be part of the trial record ... this
court’s general practice is to remand the claim for an
evidentiary hearing unless the trial record alone
conclusively shows that the defendant either is or is not
entitled to relief.
United States v. Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003).
In this case, Moore’s claim of ineffective assistance is based
principally upon Mr. Ponds’ performance at the hearing on April
25. The relevant facts, as recounted above, are matters of record
so there is no need to remand for an evidentiary hearing.
Specifically, Moore contends Mr. Ponds rendered
ineffective assistance by interrupting the district court’s
acceptance of his guilty plea on April 25, 2003. According to
Moore:
There was no valid strategic reason for counsel to request
a trial date ... [rather than] ask[ing] for the court’s leave to
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confer with his client about the pros and cons of entering a
prompt plea, given the risk that delay might make him
ineligible for the third point reduction .... At a minimum,
counsel should have asked the court to schedule a status
conference or another plea hearing to give his client more
time to consider the plea, instead of a trial date one week
later.
Moore argues further that “[b]ut for counsel’s interruption and
request for a trial date, the court would have continued the
hearing and accepted the plea, and Mr. Moore would have been
clearly eligible for the third-point reduction.”
Contrary to Moore’s contention, the record shows it was not
Mr. Ponds who interrupted Moore’s plea, but rather the district
court responding to Moore’s question. Even after the district
court had explained both the plea agreement and the Sentencing
Guidelines to Moore at great length and had granted a recess for
Moore to talk with his mother and with his lawyer, Moore made
it clear he did not yet understand the plea by asking, “What do
you mean I’ve got to admit that I did it?” Hearing Moore’s
confusion, the district court appropriately explained, “If you’re
not prepared to admit to the facts, then there’s probably no plea
agreement.” Rather than continuing with Moore’s plea, the
court stopped to allow Moore to reconsider:
Do you want to plead guilty today? Do you want to talk
about it some more with your mother and with your lawyer?
Some day there’s going to come a point where you’re going
to have to make a decision. It doesn’t have to be today. If
you’re not ready to plead guilty, we can set a trial date and
see what happens in the next couple of days.
It was only after the district court had thus apprised Moore
of his options and offered to wait further for Moore to decide
14
whether to plead guilty, that Mr. Ponds rose to offer “just my
opinion. Mr. Moore can speak for himself.” Like the district
court, Mr. Ponds had observed that Moore was apparently still
confused despite the court’s thorough explanation of the plea
agreement in open court and the recess during which Moore had
consulted his mother. Mr. Ponds was therefore understandably
concerned that his client was not yet ready to plead guilty.
Perhaps also perceiving that the district court’s patience was
beginning to wear thin, counsel reasonably endorsed the option
the district court had just offered: “set a trial date and see what
happens in the next couple of days,” -- if, but only if, the
Government would leave the plea offer open. The Government
agreed to do so, thereby insulating Moore from any prejudice by
reason of the brief delay offered sua sponte by the court before
he would have to decide finally whether to plead guilty or to go
to trial. Thus we see that Mr. Ponds was far from ineffective in
protecting his client’s interest in reaching a full understanding
of his options.
2. Government’s preparation for the suppression hearing
Moore next argues that, to the extent the district court
considered Moore’s litigation of the suppression motion in
denying him the additional reduction under § 3E1.1(b)(2), “this
Court should follow the majority of circuits in rejecting that
basis for its ruling.” Compare, e.g., United States v. Marquez,
337 F.3d 1203, 1211 (10th Cir. 2003) (“a district court may not
penalize a defendant for bringing a non-frivolous motion to
suppress by denying a reduction under subsection (b)(2)”), with
United States v. Rogers, 129 F.3d 76, 80-81 (2d Cir. 1997)
(denying defendant’s request for reduction under § 3E1.1(b)(2)
because, “in terms of preparation by the government and the
investment of judicial time, the suppression hearing was the
main proceeding in this case” and therefore defendant did not
allow “the court or the government to avoid the burdens of
15
litigating the case”).
In support of this argument, Moore points to the district
court’s observation: “Clearly the government prepared for trial
and filed -- they didn’t just have to prepare for a motions hearing
but they had to file voir dire questions, other filings and jury
instructions." This statement does not indicate the district court
relied even in part upon the Government’s preparation for the
suppression hearing in denying Moore’s request for the
additional reduction; on the contrary, the court seems to have
discounted that part of the Government’s exertions. We
therefore need not decide today whether such reliance is
permissible.
3. Moore’s request under § 3E1.1(b)(1)
Finally, we reject Moore’s contention the district court did
not rule upon his request for relief under § 3E1.1(b)(1), which
allows for a third-level reduction for acceptance of responsibility
where “the defendant ... timely provid[es] complete information
to the government concerning his own involvement in the
offense.” In announcing Moore’s sentence, the district court
recited this provision verbatim and proceeded to deny Moore’s
request for the third-level reduction. Moore’s claim that “the
district court did not decide” whether “Moore timely provided
complete information to the authorities about his involvement in
the offense” is therefore without merit.
At any rate, as we saw above, it was Moore’s unwillingness
to admit he had committed the offense -- “what do you mean
I’ve got to admit that I did it?” -- that derailed the district court’s
acceptance of his plea on April 25. More important, on June 9,
after Moore had “discuss[ed] the guidelines extensively” with
his new appointed counsel, he still wanted more time to
“understand the plea” and decide whether to plead guilty or to
16
go to trial. Obviously, he had still not “provid[ed] complete
information to the government concerning” his involvement in
the offense.
III. Conclusion
We agree with the district court that, based upon the totality
of the circumstances, the police had a reasonable suspicion upon
the basis of which to stop the taxicab in which Moore was
riding. Further, the record of the April 25 hearing conclusively
shows that counsel’s assistance was not at all deficient, let alone
constitutionally deficient. Moore’s other claims are equally
unavailing. Accordingly, both Moore’s conviction and his
sentence are
Affirmed.