United States v. Ernest Moore

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2012 Decided December 28, 2012

No. 10-3093

UNITED STATES OF AMERICA,

APPELLEE

v.

ERNEST BERNARD MOORE,

APPELLANT

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.

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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

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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.

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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.

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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

6

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,

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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 generally

U.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. In its Memorandum in Aid of

Sentencing, the Government explained that, “[a]t the time of

the plea, the government was unaware of the full extent of

[Moore’s] criminal history. The government now adopts the

Criminal History calculation in the PSR, which places

[Moore] in Criminal History Category V.”

Moore’s counsel initially objected to the PSR’s

calculation of Criminal History and the probation officer

incorporated this objection in her addendum to the PSR. At

the sentencing hearing, however, Moore’s counsel withdrew

his objection, stating that:

[F]or purposes of what the Court has to find . . . the

calculations by the Probation Officer [in the PSR] of 57

to 71 [months’ sentence] are calculated correctly with the

Criminal History to a Category 5, so, therefore, that’s the

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range. We had [in] our plea agreement 33 to 41 [months’

sentence], but the calculations of the Probation Officer

for the purposes of these proceedings and the Court, we

accept as accurate.

Tr. of Sentencing Hr’g at 2-3, reprinted in J.A. 101-02.

The District Court then sentenced Moore to 50 months, in

the middle of the adjusted range of 46 to 57 months

recommended by the Government. The District Court further

ordered Moore to pay $759,593.86 in restitution. In

announcing this sentence, the trial judge emphasized Moore’s

lengthy criminal history, “all of it involving fraud and lying,

perjury, lying under oath, taking money that doesn’t belong to

you; manipulating the system; using other names, credit

cards; [and] getting taxpayer money.” The trial judge

described Moore as an “incredibly intelligent skillful con

man,” and expressed the hope that Moore’s sentence might

deter other potential offenders and might “convince” Moore

that he “should not reengage [in] this kind of behavior.”

II. Analysis

A. Plea Colloquy

Before the District Court may accept a defendant’s plea

agreement, Rule 11 of the Federal Rules of Criminal

Procedure requires, inter alia, that the District Court advise

the defendant of the “nature of each charge to which the

defendant is pleading.” See FED. R. CRIM. P. 11(b)(1)(G).

Rule 11 sets forth a detailed procedure for the plea colloquy

that is “designed to assist the district judge in making the

constitutionally required determination that a defendant’s

guilty plea is truly voluntary . . . [and] to produce a complete

record at the time the plea is entered of the factors relevant to

this voluntariness determination.” United States v. Dewalt, 92

9

F.3d 1209, 1211-12 (D.C. Cir. 1996) (alteration in original)

(quoting McCarthy v. United States, 314 U.S. 459, 465

(1969)) (internal quotation marks omitted).

Rule 11(h) states that “[a] variance from the requirements

of [Rule 11] is harmless error if it does not affect substantial

rights.” FED. R. CRIM. P. 11(h). In United States v. Vonn, 535

U.S. 55, 63 (2002), the Court addressed “whether Congress’s

importation of the harmless-error standard into Rule 11(h)

without its companion plain-error rule was meant to eliminate

a silent defendant’s burdens under the Rule 52(b), [FED. R.

CRIM. P. 52(b)], plain-error review, and instead give him a

right to subject the Government to the burden of

demonstrating harmlessness.” The Court then said “[i]f the

answer is yes, a defendant loses nothing by failing to object to

obvious Rule 11 error when it occurs. We think the answer is

no.” Id. The Court explained that, if Rule 52(b) plain-error

review did not apply,

a defendant could choose to say nothing about a judge’s

plain lapse under Rule 11 until the moment of taking a

direct appeal, at which time the burden would always fall

on the Government to prove harmlessness. A defendant

could simply relax and wait to see if the sentence later

struck him as satisfactory; if not, his Rule 11 silence

would have left him with clear but uncorrected Rule 11

error to place on the Government's shoulders.

Id. at 73. Vonn firmly rejects this view. The Court in Vonn

made it clear that, although the harmless-error rule applies to

alleged errors under Rule 11, Rule 11(h) does not excuse a

silent defendant from the burdens of plain-error review. Id. at

71-72.

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As “to the scope of an appellate court’s enquiry into the

effect of a Rule 11 violation, whatever the review, plain error

or harmless,” Vonn confirmed that a reviewing court may

assess not only “the four corners of the transcript of the plea

hearing and Rule 11 colloquy,” but also “other portions . . . of

the limited record” that indicate whether the defendant knew

the nature of the charges against him. Id. at 74-75 (citation

omitted) (noting “transcripts covering [the defendant’s] first

appearance and arraignment” as examples of other portions of

the record that “may be considered”). And in assessing a

claim that the trial judge erred during the Rule 11 colloquy, it

is well understood that Rule 11 “does not require that the

district court spell out the elements of the charge in order to

inform the defendant adequately.” In re Sealed Case, 283

F.3d 349, 354 (D.C. Cir. 2002) (citing United States v.

Liboro, 10 F.3d 861, 865 (D.C. Cir. 1993)). Instead, a plea

colloquy must, “based on the totality of the circumstances,

lead a reasonable person to believe that the defendant

understood the nature of the charge.” United States v. Ahn,

231 F.3d 26, 33 (D.C. Cir. 2000) (citations omitted) (internal

quotation marks omitted). This is the focus of any inquiry on

appeal. Therefore, a trial judge’s failure to fully spell out the

elements of a charge, without more, may be insufficient to

sustain a challenge under Rule 11.

In normal circumstances, if a Rule 11 error occurs during

a plea hearing and the defendant objects, the Government

carries the burden of demonstrating that the error was

harmless. In re Sealed Case, 283 F.3d at 351-52; see also

FED. R. CRIM. P. 11(h). If, however, an alleged error is

committed without objection from the defendant, then the

defendant carries the burden on appeal of demonstrating

“plain error” pursuant to Rule 52(b) of the Federal Rules of

Criminal Procedure. See United States v. Dominguez Benitez,

542 U.S. 74, 80 (2004) (confirming that “when a defendant is

11

dilatory in raising Rule 11 error . . . reversal is not in order

unless the error is plain” (citations omitted)). Because Moore

raised no objections during his plea hearing, save for

expressing concerns about the amount of restitution, he now

bears the burden of showing that, during the plea colloquy, (1)

the District Court erred, (2) the error was clear or obvious, (3)

the error affected his substantial rights, and (4) the error

“seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Olano,

507 U.S. 725, 732-36 (1993) (citation omitted) (internal

quotation marks omitted).

In determining whether the District Court’s colloquy with

the defendant “would lead a reasonable person to believe that

the defendant understood the nature of the charge,” Dewalt,

92 F.3d at 1212 (citation omitted) (internal quotation marks

omitted), we consider a number of factors. “In addition to the

[trial] judge’s inquiry, the circumstances we consider include:

the defendant’s level of intelligence; whether he was

represented by counsel; the complexity of the charge against

him; and his own statements at the plea hearing.” In re Sealed

Case, 283 F.3d at 352 (citation omitted).

At Moore’s plea colloquy, the District Court judge

misread 20 U.S.C. § 1097(a), the statute under which Moore

pled guilty to Student Aid Fraud. Section 1097(a) covers, in

relevant part:

[a]ny person who knowingly and willfully embezzles,

misapplies, steals, obtains by fraud, false statement, or

forgery, or fails to refund any funds, assets, or

property . . . .

Id. In reciting the grounds for Moore’s guilty plea for Student

Aid Fraud, the District Court judge stated that, “[w]ith respect

to student aid fraud, the Government would have to prove,

12

first, that you misapplied federal financial aid funds, and, two,

that you did so knowingly and willfully.” Tr. of Plea Hr’g at

9, reprinted in J.A. 47 (emphasis added). In the Information,

Moore’s charge for Student Aid Fraud is described as

“knowingly and willfully execut[ing] a scheme to obtain

[student aid funds] by fraud, false statement, and forgery”

through “fraudulent loan request[s].” Information at 1,

reprinted in J.A. 8.

Misapplication of funds is one theory of liability under

Section 1097(a). However, Moore was charged under Section

1097(a) with having obtained funds by fraud and false

statement. In a case involving the unlawful obtaining of funds

under Section 1097(a), a defendant need not have misapplied

or converted the funds in question. The prosecutor needs only

to prove that the defendant knowingly and willfully obtained

funds by fraud or false statements. United States v. Ranum, 96

F.3d 1020, 1030-31 (7th Cir. 1996) (finding liability under

Section 1097(a) based on false statements without

misapplication of funds or conversion). Moore is correct in

asserting that he was not charged with misapplying student

aid funds and that there is no such evidence in the record.

Rather, Moore was charged with violating Section 1097(a)

because he “knowingly and willfully executed a scheme to

obtain by fraud, false statement, and forgery” federally

guaranteed student aid funds. See Ranum, 96 F.3d at 1031

(holding that, “[u]nder a plain reading of [Section 1097(a)],

the knowing and willful making of a false statement [is]

sufficient to establish the crime”); see also United States v.

Gibson, 770 F.2d 306, 307 (2d Cir. 1985) (per curiam)

(upholding a conviction under Section 1097(a) based on

defendant’s “obtaining student loans by fraud and false

statement”).

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We find that the District Court undoubtedly erred during

the plea colloquy when it incorrectly described the nature of

the charge covered by Count One. Moore therefore easily

satisfies the first and second requirements of the Olano plain

error test. See 507 U.S. at 732-34. However, the Government

correctly points out that the trial judge’s error did not affect

Moore’s substantial rights under the third requirement of the

Olano test. See id. at 734. This is so because, on this record,

Moore has not “show[n] a reasonable probability that, but for

the error, he would not have entered the plea.” United States

v. Robinson, 587 F.3d 1122, 1130 (D.C. Cir. 2009) (quoting

Dominguez Benitez, 542 U.S. at 83).

Our review of the record confirms that Moore knowingly

pled guilty to Student Aid Fraud as described in Count One of

the Information. There is nothing to suggest that he was the

least bit confused by the terms of the Plea Agreement.

Moore’s intelligence and sophistication, the simplicity of the

charges against him, and his own statements at the plea

hearing leave little doubt about this. The District Court

described Moore as a “really bright fellow.” Tr. of Sentencing

Hr’g at 37, reprinted in J.A. 136. Moore was represented by

counsel throughout the proceedings. The Section 1097(a)

false-statement charges against him are “straightforward,”

Ranum, 96 F.3d at 1025, and Moore’s statements throughout

the proceedings indicate his comprehension of the false-

statement charges against him, see, e.g., Tr. of Plea Hr’g at 4-

5, reprinted in J.A. 42-43 (acknowledging recent review of

Plea Agreement before entering plea); see also Tr. of

Sentencing Hr’g at 28, reprinted in J.A. 127 (expressing

“deep remorse” for how he “pursued [his] education”). It is

clear that Moore was fully aware of the charges against him.

Furthermore, the record is devoid of any indication that

Moore even considered a plea other than guilty. Prior to the

14

plea hearing, Moore stipulated in his Statement of Offense to

the false-statement conduct that constituted Student Aid

Fraud. In addition, Moore and his counsel both confirmed that

he had reviewed the written Plea Agreement in advance of the

plea hearing. And the record indicates that Moore benefitted

from the Plea Agreement because the Government agreed to a

two-level reduction in Moore’s offense level for sentencing in

exchange for his guilty plea.

It is also significant that, following the prosecutor’s

proffer of facts, Moore indicated that he had heard “what the

prosecutor said [he] did” and affirmed that he did not disagree

with the Government’s description of his student-aid fraud.

Tr. of Plea Hr’g at 18, reprinted in J.A. 56. Thus, the

Government convincingly argues that, throughout this case,

Moore understood the nature of the charges against him on all

counts. There is no indication that, but for the District Court’s

error in reciting the elements of Moore’s Student Aid Fraud,

Moore’s plea would have been different. Therefore, Moore

has failed to demonstrate plain error as required by

Dominquez Benitez. See 542 U.S. at 83. Likewise, Moore has

failed to demonstrate any effect on “the fairness, integrity, or

public reputation of judicial proceedings” based on the

District Court’s error, as required under the fourth element of

Olano. 507 U.S. at 736 (citation omitted) (internal quotation

marks omitted). The trial judge’s misstatement of the

elements of Count One during the plea colloquy did not result

in plain error.

B. Criminal History Calculations

Moore also objects to the District Court’s acceptance of

the PSR’s calculation of his Criminal History under the

Sentencing Guidelines. Because Moore waived his earlier

written objection on this issue at the sentencing hearing, he

15

can no longer pursue this issue on appeal. See United States v.

Rogers, 918 F.2d 207, 212 (D.C. Cir. 1990) (“If . . . a lawyer

has acquiesced in a ruling he once claimed was erroneous, the

lawyer must reassert his prior objection if he expects to

preserve it for appeal.”) (citation omitted). Furthermore,

Moore’s withdrawal of his objection constituted an invitation

to any error that the PSR’s Criminal History calculation

created, further precluding appeal. See Wagner v. Taylor, 836

F.2d 596, 599 (D.C. Cir. 1987) (“It has long been settled that

on appeal a litigant cannot avail himself of an error that he

induced the court under review to commit.” (footnote

omitted)); United States v. Wiggins, 530 F.2d 1018, 1020

(D.C. Cir. 1976) (an appellant is “precluded from assigning as

error an instruction which his counsel specifically requested

and approved”).

Moore filed written objections to the Criminal History

calculations in the PSR, which the probation officer

acknowledged in an addendum. In its Memorandum in Aid of

Sentencing, the Government acknowledged that, in the Plea

Agreement, the parties had stipulated that Moore’s Criminal

History was Category II. However, “[a]t the time of the plea,

the government was unaware of the full extent of [Moore’s]

criminal history.” Gov’t’s Mem. in Aid of Sentencing at 8 n.4,

reprinted in J.A. 75. Once Moore’s additional offenses came

to light, the Government amended its assessment of Moore’s

Criminal History and adopted the PSR’s Category V Criminal

History calculation.

At the sentencing hearing Moore, through counsel,

withdrew his earlier written objections, stating that “the

calculations by the probation officer of 57 to 71 [months] are

calculated correctly with the Criminal History to a Category

[V], so, therefore, that’s the range [for sentencing].” Tr. of

Sentencing Hr’g at 2, reprinted in J.A. 101. Moore then stated

16

that he “accept[ed] as accurate” the “calculations of the

probation officer” and was “completely satisfied . . . with the

accuracy of the [PSR].” Id. at 2-3, reprinted in J.A. 101-02.

The Government moved for an additional two-level reduction

to Moore’s sentence, which the District Court took into

account in sentencing Moore to 50 months. Based on Moore’s

unequivocal withdrawal of his objections to the PSR’s

calculation of Moore’s Criminal History, we decline to review

Moore’s claims.

Moore contends that there could have been no strategic

reason for his trial counsel’s withdrawal of the objection to

the Criminal History calculation and, therefore, he should be

permitted to pursue this issue on appeal. This court has no

sure way to determine whether counsel’s concession was

“strategic.” It is possible that Moore may have waived his

objection to the Criminal History calculation in exchange for

the two-level reduction in his sentence. Or, as the

Government suggests, Moore’s attorney may have withdrawn

the objection because he determined that the PSR calculation

of Moore’s Criminal History was correct. We do not know

and it does not matter. Even if we could determine counsel’s

reasons for the concession, the District Court was entitled to

rely on counsel’s withdrawal of his earlier objection. This is

the consequence of a waiver. See United States v. Rodriguez,

311 F.3d 435, 437 (1st Cir. 2002) (refusing to consider

defendant’s objections to Criminal History calculation after

defendant withdrew his earlier objection prior to sentencing

and holding that “[a] party who identifies an issue, and then

explicitly withdraws it, has waived the issue”).

Finally, Moore argues that even if the District Court

reasonably accepted the PSR’s Criminal History calculation,

the court failed to enter sufficient factual findings on the

subject and, therefore, the case should be remanded for such

17

findings. Rule 32(i)(3)(B) requires that, at sentencing, the

court “must – for any disputed portion of the [PSR] or other

controverted matter – rule on the dispute or determine that a

ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter

in sentencing.” FED. R. CRIM. P. 32(i)(3)(B). The Government

correctly points out that Rule 32(i)(3)(B) is inapposite

because, after Moore’s withdrawal of his objections, there

was no “disputed portion” of the PSR. As a result, the District

Court properly relied on Rule 32(i)(3)(A), which states that, at

sentencing, the court “may accept any undisputed portion of

the [PSR] as a finding of fact.” FED. R. CRIM. P. 32(i)(3)(A);

see also, e.g., United States v. Ventura, 650 F.3d 746, 749

(D.C. Cir. 2011) (relying on the PSR, “which under Rule

32(i)(3)(A) the court may find as fact unless disputed”), cert.

denied, 132 S. Ct. 1856 (2012). Once Moore withdrew his

objections to the PSR, the District Court properly adopted the

then-undisputed calculation of Criminal History as a finding

of fact.

C. Restitution

Moore also objects to the amount of restitution ordered

by the District Court, both in the aggregate and to numerous

specific victims. The parties’ modified Plea Agreement

expressly assigned authority to the District Court, with the

assistance of the United States Probation Office, to resolve

any disputes over restitution. We review de novo issues of

statutory interpretation, e.g., United States v. Papagno, 639

F.3d 1093, 1095-96 (D.C. Cir. 2011) (citation omitted), and

the District Court’s interpretation of the parties’ plea

agreement, e.g., United States v. Anderson, 545 F.3d 1072,

1077 (D.C. Cir. 2008) (citation omitted).

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“Federal courts have authority to order restitution solely

pursuant to statute.” Id. (citation omitted). The court may

order restitution “to any victim of [a qualifying] offense.” 18

U.S.C. § 3663(a)(1)(A); see also 18 U.S.C. § 3663A(a)(1).

“The court may also order, if agreed to by the parties in a plea

agreement, restitution to persons other than the victim of the

offense.” 18 U.S.C. § 3663(a)(1)(A). And the court may

“order restitution in any criminal case to the extent agreed to

by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3);

see also 18 U.S.C. § 3663A(a)(3) (“The court shall also order,

if agreed to by the parties in a plea agreement, restitution to

persons other than the victim of the offense.”); see also, e.g.,

United States v. Silkowski, 32 F.3d 682, 688-89 (2d Cir. 1994)

(noting that Section 3663(a)(3) provides courts with the

authority to order “restitution beyond the offense of

conviction when the defendant agrees to such in a plea

agreement” (citation omitted) (internal quotation marks

omitted)).

The parties’ Plea Agreement authorizes the District Court

to set the amounts of restitution due to all of Moore’s victims

pursuant to both Section 3663 and 3663A. Plea Agreement at

5, reprinted in J.A. 17. More importantly, the Plea Agreement

explicitly provides that restitution will be due to victims of all

of Moore’s criminal conduct, not just his offenses of

conviction. Id.

Moore argues that the language stricken from the Plea

Agreement, which required his acknowledgement that some

restitution was due to each of his victims, indicates that the

parties did not agree that restitution was due to all victims.

The Government counters that the language retained in the

Plea Agreement is clear on its face and, therefore, the stricken

language is irrelevant. See Iberdrola Renewables, Inc. v.

FERC, 597 F.3d 1299, 1304 (D.C. Cir. 2010) (“If a contract is

19

not ambiguous, extrinsic evidence cannot be used as an aid to

interpretation.” (citation omitted) (internal quotation marks

omitted)). We agree that the stricken language is irrelevant

because its deletion in no way undercuts Moore’s promise to

pay restitution to victims of all of his criminal conduct, not

just his offenses of conviction.

Furthermore, as noted above, the Plea Agreement clearly

delegates authority to the District Court to resolve any

differences between the parties regarding the amount of

restitution to be paid and to whom. This delegation of

authority eliminates any potential ambiguity in the parties’

agreement on restitution. See United States v. Heard, 359

F.3d 544, 554 (D.C. Cir. 2004) (finding permissible

delegation where “both parties agreed to disagree – and

expressly agreed to leave the matter for the district court to

resolve”); see also Anderson, 545 F.3d at 1080 n.7 (approving

of a delegation to the district court of authority to determine

the amount of restitution and noting that “while the parties

may agree to a specific amount or to a cap on restitution, such

an agreement is not required under section 3663(a)(3)”

(citations omitted)).

The parties surely were within their rights to write the

Plea Agreement as they did because “any means [of

establishing the amount due in restitution] acceptable to the

defendant is proper. . . . [And a] defendant may . . . delegate

the power to the judge.” United States v. Peterson, 268 F.3d

533, 535 (7th Cir. 2001). In sum, the “parties’ conduct plainly

evinced their intent that the District Court could order

restitution” to persons other than the victims of the offenses to

which Moore pled guilty and that the District Court’s

restitution determination was proper. Anderson, 545 F.3d at

1079 (citing Heard, 359 F.3d at 554).

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Finally, Moore contends that the District Court’s

restitution order was inappropriate because the trial judge

failed to check the box on the Judgment form to specify that

the “[r]estitution amount [is] ordered pursuant to plea

agreement.” Judgment at 6, reprinted in J.A. 153. The

Government responds that the District Court’s decision not to

check the box was appropriate because it determined the

amounts of restitution due to Moore’s victims based on the

authority granted to the court under the Plea Agreement, not

based on any amounts of money specified in the Plea

Agreement. We agree.

In sum, we hold that the Plea Agreement was lawful and

reasonable, and that the District Court properly exercised its

authority under the agreement. We also find that the District

Court’s determinations on restitution were lawful and fully

justified. We find no basis to reverse or remand the order of

restitution.

D. Alleged Ineffective Assistance of Counsel at Trial

Finally, Moore claims that he was deprived of his Sixth

Amendment right to counsel because his trial attorney was

ineffective. Under established law, it is very difficult for a

convicted defendant to prevail on a claim of ineffective

assistance of counsel:

A convicted defendant’s claim that counsel’s

assistance was so defective as to require reversal of a

conviction . . . has two components. First, the defendant

must show that counsel’s performance was deficient.

This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient

performance prejudiced the defense. This requires

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showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable. Unless a defendant makes both showings, it

cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that

renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also,

e.g., United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997)

(applying Strickland). “The latter prong requires the

defendant to demonstrate that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” United States v.

Cassell, 530 F.3d 1009, 1011 (D.C. Cir. 2008) (citation

omitted) (internal quotation marks omitted). Our review of

counsel’s conduct is “highly deferential” and we are bound by

“a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689.

Moore supports his claim of ineffective assistance with

only a bare sketch of alleged errors committed by his trial

counsel. First, Moore argues that

the papers filed by [trial] counsel show a glaring

ignorance on basic principles of both plea proceedings and

the Sentencing Guidelines. For example, in the substantial

papers filed by Moore’s counsel, he repeatedly challenged

factual matters to which Moore had already admitted by

signing the Statement of the Offense. Many of the factual

disputes raised in counsel’s pleadings did not affect the

issue of sentencing – which should have been counsel’s

focus once the plea had been entered and the Statement of

Offense had been signed. If counsel believed the facts

concerning guilt were still in dispute, he should have

22

either advised his client not to take the plea or later

advised him to move to withdraw the plea.

Appellant’s Br. at 29 (citation omitted). Second, Moore

asserts that

[trial] counsel also did not have a basic grasp of the

Sentencing Guidelines themselves. Counsel argued that

interest and finance charges should not be included in the

restitution figure. For support for this incorrect

proposition, counsel repeatedly cited to U.S.S.G.

§2B1.1(3)(D)(i). However, that section applies to

establishing the amount of loss used for establishing a

base offense level, not toward restitution for which the

Guidelines includes interest and finance charges.

Id. at 29-30 (citation omitted). Moore then concludes that

“counsel’s ineffective representation prejudiced Moore at

sentencing.” Id. at 30.

Moore’s critique of his trial counsel may have some

force. The problem, however, is that the conclusion that

Moore draws from his critique of trial counsel – i.e., that

counsel’s ineffective representation prejudiced Moore at

sentencing – has not been demonstrated. We agree with the

Government that Moore’s “conclusory claims come nowhere

close to overcoming the strong presumption that appellant’s

counsel rendered adequate assistance. At any rate, even if

they did, appellant has not shown a reasonable probability

that, absent these ‘deficiencies,’ appellant would have

received a different sentence.” Appellee’s Br. at 50. We agree

that there is nothing in this record to indicate that but for

counsel’s alleged poor performance, the result of the

sentencing proceeding would have been different and more

favorable to Moore. In short, we cannot find that Moore

suffered “prejudice” as required by Strickland.

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Furthermore, it is noteworthy that, at the close of

sentencing, the District Court judge declared that Moore’s

trial counsel “did as best as he possibly could to present

[Moore] in the most favorable light.” Tr. of Sentencing Hr’g

at 41, reprinted in J.A. 140. This declaration by the trial

judge, who was responsible for sentencing, certainly

undercuts Moore’s contention that his trial attorney was

ineffective. The District Court’s assessment at least suggests

that Moore’s 50-month sentence “was a product of appellant’s

brazen criminal conduct and not some deficiency in counsel’s

performance.” Appellee’s Br. at 51.

III. Conclusion

For the foregoing reasons, the judgment of the District

Court is affirmed.