United States v. Moore, Ricky

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

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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

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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

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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”

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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

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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

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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

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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.