United States v. Moore

• Decision Date: 28 December 2012
• Docket Number: No. 10–3093.,10–3093.
• Citation: 703 F.3d 562
• Parties: UNITED STATES of America, Appellee v. Ernest Bernard MOORE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

703 F.3d 562

UNITED STATES of America, Appellee

v.Ernest Bernard MOORE, Appellant.

No. 10–3093.

United States Court of Appeals,District of Columbia Circuit.

Argued Sept. 10, 2012.

Decided Dec. 28, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cr–00250–1).

Marie Park, appointed by the court, argued the cause and filed the briefs for appellant.

David B. Goodhand, Assistant U.S. Attorney, argued the cause for appellee. With him on the briefs were Ronald C. Machen, Jr., U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and Ellen Chubin Epstein, Assistant U.S. Attorneys.

Before: BROWN, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

On November 9, 2009, appellant Ernest Bernard Moore pled guilty to three counts of fraud. Count One (“Student Aid Fraud”) charged Moore with knowingly and willfully executing a scheme to obtain student aid funds by fraud, false statement, and forgery in violation of 20 U.S.C. § 1097(a). Count Two (“Bank Fraud”) charged Moore with knowingly executing a scheme to defraud certain banks by means of fraud and fraudulent pretenses, representations, and promises in violation of 18 U.S.C. § 1344. Count Three (“Social Security Fraud”) charged Moore with knowingly and willfully converting Social Security Benefits for his own use after the intended beneficiary was no longer in Moore's care in violation of 42 U.S.C. § 408(a)(5). On September 23, 2010, the District Court sentenced Moore to concurrent terms of 50 months' imprisonment for all three counts, to be followed by concurrent supervised-release terms of 36 months for Student Aid Fraud and Social Security Fraud and 60 months for Bank Fraud. In addition, the District Court ordered Moore to pay $759,593.86 in restitution to all of the victims of his offenses, not merely the victims of his offenses of conviction.

Moore appeals from the District Court's judgment on several grounds:

• He first contends that the trial judge plainly erred during the plea colloquy when he read the wrong portion of the statute in describing the elements of the offense relating to Student Aid Fraud, thereby rendering Moore's guilty plea unknowing.

• Moore also contends that the District Court erred in accepting as undisputed the calculations of his Criminal History in the Presentence Report (“PSR”) after Moore's counsel orally withdrew his earlier written objections to the calculations. The PSR calculations increased Moore's Criminal History Category from II to V under the Sentencing Guidelines.

• Moore further claims that his Plea Agreement, which stated that he “agree [d] to make restitution to all victims of [his] criminal conduct and not merely for those victims included in the counts to which [he] agree[d] to plead guilty,” did not unambiguously empower the District Court to award restitution to victims of Moore's conduct other than his offenses of conviction.

• Finally, Moore asserts that he was deprived of his Sixth Amendment right to counsel because his trial attorney was ineffective. He claims in particular that counsel's ineffective representation prejudiced him at sentencing.

Moore requests that this court set aside his conviction for Student Aid Fraud and remand for resentencing with a corrected Criminal History Category of II, as stipulated in the parties' Plea Agreement. He also requests that the District Court's order of restitution be reduced so that it is consistent with applicable law or remanded so that the trial judge can clarify the basis for the restitution order.

We agree that the District Court erred in describing the elements of Student Aid Fraud; however, the error did not affect Moore's substantial rights. We find no merit in any of the remaining claims raised by Moore on appeal. We therefore affirm the judgment of the District Court.

I. Background

The Information and Statement of the Offense implicating Moore included the following counts:

Student Aid Fraud (Count One). Between 2002 and 2006, Moore knowingly and willfully executed a scheme to obtain eleven federally insured student loans by fraud, false statement, and forgery. Using the name “Bernard Glenn–Moore” and a fraudulent Social Security number, he submitted a fraudulent loan request for each of the eleven loans. He obtained $88,351 through this scheme.

Bank Fraud (Count Two). Between 2002 and 2007, Moore applied for and obtained ten private student loans from four different banks. On these loan applications, he used fraudulent Social Security numbers and falsely stated that his name was “Bernard Glenn–Moore” or “Tracy G. Cannady.” He obtained $188,777 through this scheme.

Social Security Fraud (Count Three). Moore was responsible for Warren Baker's care and legitimately served as Baker's Representative Payee for the collection of Social Security benefits. However, Moore continued to receive Social Security payments on Baker's behalf after he ceased caring for Baker. Moore fraudulently received a total of $13,257 through this scheme.

Statement of the Offense at 1–8, reprinted in Joint Appendix (“J.A.”) 22–29; see also Information at 1–4, reprinted in J.A. 8–11.

The charges against Moore never reached trial because he elected to enter into a Plea Agreement with the Government. As part of the Plea Agreement, which was executed on September 30, 2009, Moore agreed to plead guilty to the offenses listed in the Information. Plea Agreement at 1–9, reprinted in J.A. 13–21. He also agreed that, “[i]n addition to any restitution that must be ordered by the Court,” he would “make restitution to all victims of [his] criminal conduct and not merely for those victims included in the counts to which [he] agree[d] to plead guilty.” The parties modified the Plea Agreement on October 1, 2009. Pursuant to this modification, the following marked language was stricken from the Agreement:

In addition to any restitution that must be ordered by the Court, your client agrees to make restitution to all victims of your client's criminal conduct and not merely for those victims included in the counts to which your client agrees to plead guilty. The government contends that pursuant to 18 U.S.C. §§ 3663(a)(3) and 3663A(a)(3), the order of restitution imposed by the Court shall be in the amounts and to the victims indicated in Exhibit 1 to this letter. Your client contends that the restitution amounts are less. but acknowledges that some amount of restitution is owed to each of the victims listed in Exhibit 1 to this letter. The parties will rely on the Court, with the assistance of the United States Probation Office, to resolve this issue.

Id. at 5; reprinted in J.A. 17. The parties disagree over the significance of this modification of the Plea Agreement.

On November 9, 2009, Moore executed a Statement of the Offense in which he stipulated that he committed not only the offenses described in the Information, but also additional bank fraud and credit card fraud. Statement of the Offense at 1–17, reprinted in J.A. 22–38. The additional bank fraud to which Moore stipulated included five loans between 2003 and 2008 in the aggregate amount of $20,600. Moore listed his name as “Bernard Moore” or “Tracy G. Cannady” on these loan applications and used a fraudulent Social Security number. Moore also stipulated that, from 2003 to 2009, he opened more than ninety credit card accounts using aliases and bogus Social Security numbers. The Government estimated that the outstanding balance from these credit card transactions totaled $469,099.52.

A plea hearing was held before the District Court on November 9, 2009. During this hearing, after acknowledging that he had “thoroughly” reviewed the Plea Agreement, Moore pled guilty to the offenses described in the Information. The District Court judge then informed Moore of “the nature of each charge to which [he was] pleading,” as required by Rule 11(b)(1)(G) of the Federal Rules of Criminal Procedure. With respect to Count One, the trial judge told Moore that the Government “would have to prove, first, that you misapplied federal financial aid funds, and, two, that you did so knowingly and willfully.” This was a mistake because the Information charged Moore with “knowingly and willfully execut[ing] a scheme to obtain by fraud, false statement, and forgery” numerous student loans. Nonetheless, Moore told the trial judge that he understood the elements of the count pertaining to Student Aid Fraud and that they accurately described his offenses. The trial judge's explanations of the Bank Fraud and Social Security Fraud charges were consistent with the Information.

After the trial judge had explained each charge, the prosecution proffered the facts that it was prepared to prove in the event that the case proceeded to trial. This proffer was consistent with the charges in the Information. Moore acknowledged that he had heard the prosecution's statement, and Moore's defense counsel agreed that the Government could prove the elements of the charges in the Information. The only disagreement between the parties concerned the amount that would be due in restitution. After confirming that Moore willingly admitted the offenses at issue, the District Court accepted Moore's guilty plea. Only sentencing remained to be completed.

For the purpose of calculating Moore's sentence, the Plea Agreement estimated Moore's Criminal History to be Category II under the Sentencing Guidelines. See generallyU.S. Sentencing Guidelines Manual (2008). On this point, the Plea Agreement stated that the designation of Category II was based on information that was available to the Government as of September 25, 2009. After the execution of the Plea Agreement, however, the Probation Office prepared a PSR for the purpose of applying the Sentencing Guidelines to Moore. The PSR calculated Moore's Criminal History to be Category V, not Category II....