United States v. Moore

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

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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.

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 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

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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.

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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.

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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

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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."

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 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.

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 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.

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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

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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-

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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).

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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.

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