Filed: May 07, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4571 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BILLY JOE MOON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-00801-RBH-1) Submitted: April 7, 2010 Decided: May 7, 2010 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael A. Meetze, Assistant Federal Public
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4571 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BILLY JOE MOON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-00801-RBH-1) Submitted: April 7, 2010 Decided: May 7, 2010 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael A. Meetze, Assistant Federal Public D..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4571
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY JOE MOON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00801-RBH-1)
Submitted: April 7, 2010 Decided: May 7, 2010
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Rose Mary Sheppard Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On November 30, 2007, Billy Joe Moon entered a guilty
plea to being a convicted felon in possession of a firearm. A
presentence report was issued that classified Moon as an armed
career criminal (an “ACC”), pursuant to 18 U.S.C. § 924(e)
(2006). Moon objected to this classification; however, prior to
sentencing, he and the Government executed an addendum to his
plea agreement settling all sentencing issues. The parties
stipulated, pursuant to Fed. R. Crim. P. 11(c)(1)(C), that Moon
should receive a sentence of ten years’ imprisonment. The
district court accepted the plea agreement and the stipulated
sentence, which it ultimately reduced to eighty-four months
following the Government’s motion for a downward departure.
Moon appealed.
Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that after a review of
the record, he has found no meritorious issues for appeal. Moon
has filed a pro se supplemental brief, in which he states,
without offering any specific argument or authority, that his
attorney erred by failing to correct perceived inaccuracies in
his presentence report, and by failing to request a downward
departure based on Moon’s health concerns. The Government has
adopted counsel’s Anders brief as its own, and has not filed any
response to Moon’s pro se supplemental brief.
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In the absence of a motion to withdraw a guilty plea,
we review the adequacy of the guilty plea pursuant to Fed. R.
Crim. P. 11 for plain error. United States v. Martinez, 277
F.3d 517, 525 (4th Cir. 2002). A review of Moon’s Rule 11
hearing reveals that the district court substantially complied
with Rule 11’s requirements. Moon’s plea was knowingly,
voluntarily, and intelligently made, with full knowledge of the
consequences attendant to his guilty plea. We therefore find
that no plain error occurred and affirm Moon’s conviction.
We decline to address Moon’s ineffective assistance of
counsel arguments. Unless an attorney’s ineffectiveness is
apparent on the face of the record, ineffective assistance
claims are generally not addressed on direct appeal. United
States v. James, 337 F.3d 387, 391 (4th Cir. 2003). To show
ineffective assistance of counsel, Moon must show that counsel’s
performance fell below an objective standard of reasonableness
under “prevailing professional norms” and was prejudicial.
Strickland v. Washington,
466 U.S. 668, 687-88, 692 (1984). The
prejudice prong is satisfied if Moon can demonstrate that “there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
Id. at 694. In the guilty plea context, the
prejudice prong is met by showing a reasonable probability that
absent counsel’s errors the defendant would not have pled guilty
3
and would have insisted on going to trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985). We find that Moon’s vague arguments
fail to establish that ineffectiveness of counsel is apparent on
the face of the record.
First, Moon does not state how the presentence report
was inaccurate. Moreover, he ignores the fact that his sentence
was not based on the Guideline range contained in the
presentence report, but rather on the plea addendum that he
executed with the Government pursuant to Fed. R. Crim. P.
11(c)(1)(C), which became binding on the sentencing court after
it was accepted. * Finally, it is clear from the record that the
sentencing court was made aware of Moon’s health conditions by
both Moon and his counsel prior to passing sentence. Thus, even
if we found that counsel failed to meet his duty of care, Moon
has failed to establish that the record demonstrates a
reasonable probability that but for his counsel’s errors, Moon
would not have pled guilty. Accordingly, we conclude that
Moon’s assertions of ineffective assistance of counsel are not
cognizable on direct appeal.
*
Moon’s presentence report recommended that he receive
fifteen years to life; however, Moon’s plea addendum effectively
nullified this recommendation. Based on the terms of his plea
addendum, and the Government’s motion for a downward departure,
Moon received less than half of the fifteen years recommended by
his presentence report.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Moon, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Moon requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Moon. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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