United States Court of Appeals
For the First Circuit
No. 02-2372
UNITED STATES OF AMERICA,
Appellee,
v.
DARNELL A. MOORE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, Chief U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Gregory Moffatt, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
John H. LaChance for appellant.
March 29, 2004
LYNCH, Circuit Judge. Feeling betrayed when he learned
that a new, sterner regime in the United States Attorney's Office
had rejected an eight-year sentencing recommendation from an
Assistant U.S. Attorney in favor of a ten-year recommendation,
Darnell Moore fled from his sentencing hearing at the Boston
courthouse in July 2002. While a fugitive, he wrote a pro se
letter to the court, asking to withdraw his plea. He was
apprehended on October 2, 2002, and brought before the court on
October 9. Moore's counsel was advised the day before of a court
hearing on October 9. Thinking that the court would schedule a
later sentencing hearing, counsel learned instead at the October 9
hearing that the court intended to go forward with sentencing.
Counsel asked for a continuance. The court would have none of it;
it denied both the continuance and a motion to withdraw the plea,
and sentenced Moore to eighteen years, in light of his flight.
Moore appeals both the denial of the motion to withdraw and the
denial of the continuance. We affirm, with a cautionary note.
I.
Darnell A. Moore was charged with two counts of unarmed
robbery, in violation of 18 U.S.C. § 2113(a), on July 19, 2000. He
initially pled not guilty and then, on November 28, 2001, entered
into a plea and cooperation agreement with the government. Under
the plea agreement, the government agreed (1) to recommend an
acceptance-of-responsibility adjustment under U.S.S.G. § 3E1.1 if
-2-
Moore accepted responsibility and did not engage in any untruthful
or illegal conduct and (2) to recommend a downward departure
pursuant to U.S.S.G. § 5K1.1 if Moore provided substantial
assistance to the government. The plea agreement did not specify
the particular sentence that the government would recommend if
Moore rendered substantial assistance; it provided explicitly that
"[t]he U.S. Attorney reserves the right to recommend a particular
sentence or sentencing range, or to make no recommendation at
Defendant's sentencing."
On February 20, 2002, Moore informed the court that he
wished to change his plea and proceed to trial. Then, on March 13,
2002, the government returned a superseding indictment that charged
Moore with two additional bank robberies. At this point, Moore,
who had already run into problems with the first appointed counsel,
sought to have his second appointed attorney withdraw as counsel.
Moore and his attorney filed motions to that effect, the attorney
was allowed to withdraw, and Moore's present attorney was appointed
to represent him.
The government agreed to dismiss the superseding
indictment after sentencing if Moore pled guilty to the original
indictment. At a Fed. R. Crim. P. 11 hearing on May 29, 2002,
Moore pled guilty to the original indictment. The district court
made the complete inquiry required by Rule 11(b); Moore does not
argue otherwise.
-3-
During the hearing, the court calculated the applicable
guideline range. Moore was determined to be a career offender
under U.S.S.G. § 4B1.1(a). The offense statutory maximum for 18
U.S.C. § 2113(a) is twenty years of imprisonment, so Moore was
assigned an offense level of 32 under § 4B1.1(b)(C). That offense
level was greater than the offense level that would have been
applicable to 18 U.S.C. § 2113(a) had Moore not been a career
criminal, so it became the relevant offense level pursuant to §
4B1.1(b). The court projected a three-point acceptance-of-
responsibility decrease in the offense level under U.S.S.G. §§
3E1.1(a) and (b), making the final offense level 29. Under §
4B1.1(b), a career offender's criminal history category is VI. The
offense level of 29 and the category VI criminal history resulted
in an applicable guideline range of 151 to 188 months of
imprisonment. U.S.S.G. ch. 5, pt. A. The court's calculation did
not account for any downward departure.
The government repeated before the court that it intended
to recommend a sentence at the low end of that range. The court
advised Moore that under the plea agreement the government was only
promising to consider asking the court to decrease the sentence
further pursuant to the substantial assistance downward departure
motion.1 The court also explained to Moore that it would be under
1
The relevant excerpt from the plea colloquy follows:
Court: [O]n this business about substantial
-4-
no obligation to follow the government's recommendation, should the
government choose to make one.2 Sentencing was scheduled for July
10, 2002, and Moore was permitted to remain on release, subject to
conditions, until then.
The day before the July sentencing hearing, Moore was in
counsel's office reviewing the presentence report. While Moore was
there, his counsel received a call from the AUSA prosecuting the
case, who informed him that his superiors had disagreed with the
sentence he was going to recommend to the court in connection with
the government's § 5K1.1 departure motion. The AUSA had
recommended 96 months of imprisonment (eight years) to his
superiors, and he later acknowledged before the district court that
he had "made prior representations [to Moore and counsel] based on
assistance, all they're promising to do, be
very clear, is consider it. Consider whether
they will ask me to go lower. They haven't
promised to ask me.
Do you know that?
Moore: Yes, sir.
2
The following exchange took place:
Court: [Y]ou understand that I'm not part of this
plea bargain.
Are you clear on that?
Moore: Yes, sir.
Court: And that even if they do ask me to go
lower, I don't have to. Do you understand
that?
Moore: Yes.
-5-
my best estimate of where I thought our office was going to come
out, where my immediate supervisor and my former supervisor thought
our office was going to come out."
There was an intervening change in administration,
however, and the new U.S. Attorney for Massachusetts and the
downward departure committee disagreed with the AUSA's request and
decided upon a recommended sentence of 120 months of imprisonment
(ten years). The AUSA also stated that he was no longer in a
position to agree to Moore's motion to self-report to serve any
imposed term of imprisonment. Counsel relayed the bad news to
Moore. That same day, the government filed its downward departure
motion under seal.3
The next day, Moore and his attorney arrived at court at
nine o'clock in the morning for the sentencing hearing and learned
that the hearing was actually scheduled for two o'clock. Counsel
told Moore that he could leave the courthouse and should return
just before two o'clock. Moore returned to the courthouse with his
girlfriend. He met his counsel and spoke to the AUSA separately.
Before entering the courtroom, Moore told counsel that he wanted to
say goodbye to his girlfriend. Counsel entered the courtroom
3
In the sealed motion for downward departure, the
government recommended moving from the applicable base offense
level of 29 (in criminal history category VI) to an offense level
of 26 (in category VI). The new offense level translated to a
range of 120 to 150 months of imprisonment and the government
recommended 120 months.
-6-
without Moore and then, when he went back to look for Moore a few
minutes later, Moore was nowhere to be found.
The district court postponed the hearing until 3:45,
declined to issue a bench warrant for Moore's arrest at that time,
and stated that "if we find him this afternoon I'm not going to
hold it against him." Moore never showed, so the court issued a
bench warrant for his arrest. Counsel and the AUSA expressed to
the court their surprise at Moore's absence, given that Moore had
met all of his other obligations, and the court indicated that
Moore would "be treated with great respect" when brought back into
court.
While a fugitive, Moore filed a pro se motion to withdraw
his guilty plea; the motion included a claim that he was innocent
of the charges. The court denied the motion because Moore was a
fugitive and because he still had court-appointed counsel. Moore
was arrested by state authorities on October 2, 2002. That day,
the government filed a motion under seal seeking to withdraw its §
5K1.1 motion and giving notice of its intent to abrogate the plea
agreement. By letter dated October 2, the AUSA notified Moore's
counsel that Moore had now committed new crimes, subjecting him to
lengthy imprisonment, and that the government had withdrawn its §
5K1.1 motion and would no longer recommend an acceptance-of-
responsibility adjustment. On October 7, the prosecution sought
and obtained a writ of habeas corpus to return Moore to federal
-7-
custody on October 9. The application for the writ said
"[a]ppearance is necessary for the purpose of sentencing." The
record does not indicate whether Moore's counsel was served with
this writ, or if he was, when he received it.
Moore was brought into court on October 9, 2002. His
counsel had been given only one day's notice of Moore's court
appearance and had not been told that Moore would be sentenced that
day. Moore's counsel immediately moved for a continuance, saying
that he had not had the opportunity to see his client since Moore
had been apprehended and before he saw him at the hearing. The
court's response was to ask counsel whether he had been ready to go
forward with sentencing on July 10. Counsel acknowledged that he
had been so prepared. The court then denied the continuance
motion, noting that "[t]he matter was fully prepared, and I see no
reason to continue the disposition because it's been delayed." In
light of the court's statement, counsel did not press further his
reasons for asking for a continuance. At Moore's insistence,
counsel next moved to withdraw as Moore's attorney, but the
district court convinced Moore that having counsel withdraw was
unwise. Then, counsel moved to withdraw Moore's guilty plea.
After hearing from both counsel and Moore, the court denied the
motion, stating that "[t]he plea as it was entered was knowing,
intelligent and voluntary and all accurately explained."
-8-
The district court denied the government's motion to
withdraw its § 5K1.1 motion but noted that the government was not
bound to its earlier sentencing recommendation. Because of Moore's
flight, the court refused to grant him an adjustment for acceptance
of responsibility. The applicable offense level thus moved from 29
to 32, and the applicable guideline sentencing range became 210 to
262 months of imprisonment.4 The government recommended a sentence
of 262 months based on a number of factors, including the
defendant's flight (which violated the conditions of his release
order and the plea agreement) and his attempt to evade apprehension
after his flight.5 Moore's attorney recommended a § 5K1.1
departure and a sentence of 151 months. The district court
declined to depart downward based on § 5K1.1, telling Moore that
"in the exercise of discretion I think you threw it all away when
you walked out of here." The court declared Moore a career
criminal and imposed a sentence of 216 months of imprisonment
(eighteen years), concurrent on the two counts, with three years of
supervised release, restitution of $6,166, and a $200 special
assessment.
4
A fine range of $17,500 to $175,000, a mandatory special
assessment of $200, and restitution of $6,166 were also applicable.
5
The AUSA also referred to allegations that Moore had
committed another bank robbery while in flight, that he had
threatened an FBI agent, and that he had gotten into a high-speed
car chase. The district court did not factor those allegations
into Moore's sentence.
-9-
II.
Moore argues that the district court's refusal to grant
the motion to withdraw his plea was error. Our review of the
denial of the motion to withdraw the guilty plea is for abuse of
discretion. United States v. Santiago, 229 F.3d 313, 316 (1st Cir.
2000); United States v. Gonzalez-Vazquez, 34 F.3d 19, 22 (1st Cir.
1994). A defendant bears the burden of demonstrating a "fair and
just reason" for seeking to withdraw his plea. Fed. R. Crim. P.
32(d) (2001) (amended 2002).6 "In its determination of whether a
defendant has shown a sufficient reason for withdrawing his guilty
plea before sentencing, the court focuses primarily on whether the
plea was voluntary, intelligent and knowing within the meaning of
the rule governing plea colloquies." Santiago, 229 F.3d at 316-17.
In addition, certain factors are often particularly relevant to the
motion, including: "the plausibility of the proferred reason, the
timing of the attempted retraction, the presence or absence of a
protestation of innocence, and whether the circumstances cast
serious doubt on the bona fides of the original plea." United
States v. Torres-Rosa, 209 F.3d 4, 8-9 (1st Cir. 2000); Santiago,
229 F.3d at 317.
The thrust of Moore's argument is that he should have
been able to withdraw his plea because he was misled by the
6
Moore's plea withdrawal is governed by Fed. R. Crim. P.
32(d) as that rule existed prior to revisions that became effective
on December 1, 2002.
-10-
government. He maintains that the AUSA prosecuting his case made
representations to him and to his counsel that the government was
going to recommend a sentence of eight years based upon a § 5K1.1
downward departure. Moore argues that he did not understand that
the AUSA's eight-year recommendation could be changed by the U.S.
Attorney and the downward departure committee to a ten-year
sentence, and that this misunderstanding provided reason to
withdraw his plea. Moore is, apparently, a veteran of the state
criminal process in which there may be less oversight of
recommendations by an individual prosecutor. Moore argues that his
situation is unique: He was caught in the middle of administration
and policy changes within the U.S. Attorney's Office and those
changes led to an allegedly rare occurrence -- the internal
rejection of an AUSA's sentencing recommendation. The uniqueness
of the situation, he says, establishes a "fair and just reason" for
the withdrawal of his plea. There is also a contention that he is
innocent, although he admitted his guilt when he entered his plea.
The district court did not abuse its discretion in
denying Moore's plea withdrawal motion. Its determination that
Moore's plea was "knowing, intelligent and voluntary" is well-
supported. The plea colloquy here was well-done, clear, and
thorough, and Moore does not raise any challenge to its adequacy.
The record shows that Moore was not misled; it was clear that the
government had only agreed to consider supporting a downward
-11-
adjustment. A change in policy within the United States Attorney's
Office was an unlucky break for Moore, "but the fact that a
defendant finds himself faced with a stiffer sentence than he had
anticipated" certainly does not compel a conclusion that there is
a fair and just reason for abandoning a guilty plea. Torres-Rosa,
209 F.3d at 9.
The presence of a claim of innocence in Moore's pro se
motion for plea withdrawal is more serious. But he had admitted
his guilt and gave no reason in the motion as to why that admission
was not accurate. The district court was entitled to discount the
claim of innocence. The pro se motion was obviously motivated by
the disappointing news that the government's recommended sentence
would be ten years rather than eight.
III.
Moore also argues that the district court should not have
denied his motion for a continuance of the sentencing hearing. We
review the district court's refusal to continue the sentencing
hearing for abuse of discretion. United States v. López-López, 295
F.3d 165, 169 (1st Cir. 2002); United States v. Marrero-Ortiz, 160
F.3d 768, 777 (1st Cir. 1998); United States v. Ottens, 74 F.3d
357, 359-60 (1st Cir. 1996) (there is an abuse of discretion where
the court made a serious error of law or had a meaningful lapse of
judgment that resulted in substantial prejudice to the movant).
The list of factors to consider is open-ended; the inquiry is case-
-12-
specific. Ottens, 74 F.3d at 359-60. Such factors include the
movant's proferred reasons for needing the continuance, the amount
of time necessary for effective preparation,7 the amount of time
previously available for preparation, the extent to which the
movant has contributed to his predicament, the probable utility of
a continuance, the extent of the inconvenience to others of a
continuance, and the likelihood of injustice or unfair prejudice to
the movant from a denial of a continuance. Id.
The district court viewed the continuance request as a
simple equation -- if Moore's counsel was ready on July 10 to
handle sentencing, then, ipso facto, he was ready to handle
sentencing on October 9, one day after Moore was taken into
custody. But the circumstances were different on the two dates.
On October 9, Moore faced a much higher potential sentence than he
did on July 10. His flight alone increased the potential for a
higher sentence: his acceptance-of-responsibility adjustment was in
jeopardy and the government no longer wanted to be bound by the
plea bargain or by its § 5K1.1 recommendation. Moore also sought
to withdraw his plea and to explain to the judge that his sense of
betrayal had led to his flight. Counsel stated that he had little
time to consult with Moore or to do any work on these issues with
7
"The focus is on what constitutes a reasonable period of
time for preparation, not on defense counsel's subjective
satisfaction with his level of preparedness." Marrero-Ortiz, 160
F.3d at 777 (internal quotation marks omitted).
-13-
only a day's notice. Indeed, counsel represented that he thought
that he was appearing in order to set a date for sentencing in
light of the government's motion.
One could easily think that it would have been better to
grant counsel a short continuance. Still, that does not make the
district court's action an abuse of discretion. It also does not
establish that Moore suffered any prejudice from not getting a
continuance. Concerned about the situation and whether there was
prejudice, we pursued this topic with counsel at oral argument and
were not able to ascertain any specific prejudice. In the interim
between the sentencing hearing and this appeal, there was ample
opportunity to have reflected upon the topic so as to be able to
point out to us such specific prejudice, if any, as might have
occurred. None has appeared.
We have also carefully reviewed the record and find no
prejudice. Despite the disadvantages, defense counsel was eloquent
on his client's behalf on October 9 and the facts were plain.
As a result, we affirm the sentence imposed.
Affirmed.
-14-