    19-723
    United States v. Moore



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


                  At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
    the City of New York, on the 5 th day of May, two thousand twenty.

    PRESENT:
                      GUIDO CALABRESI,
                      RICHARD C. WESLEY,
                      RICHARD J. SULLIVAN,
                      Circuit Judges.
    _____________________________________

    United States of America,
                       Appellee,

                v.                                                  19-723
    Stacy Calhoun, AKA Hauss,
                     Defendant,

    Lamar Moore, AKA Kane,
                    Defendant-Appellant.

    _____________________________________
FOR APPELLEE:                                        MICHAEL D. LONGYEAR, (Jacob Warren,
                                                     Karl Metzner, on the brief), Assistant United
                                                     States Attorneys, for Geoffrey S. Berman,
                                                     United States Attorney for the Southern
                                                     District of New York, New York, NY.

FOR DEFENDANT-APPELLANT:                             STEVEN YUROWITZ, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Kimba M. Wood, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Lamar Moore appeals from his judgment of conviction, following a

guilty plea pursuant to a plea agreement, for (1) possessing a weapon by a prohibited person, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); (2) engaging in unlicensed firearm trafficking, in

violation of 18 U.S.C. § 922(a)(1)(A); and (3) trafficking in marijuana, in violation of 21 U.S.C.

§ 841(b)(1)(D). Moore was sentenced to 151 months’ imprisonment and three years’ supervised

release. On appeal, Moore makes four principal challenges. We assume the parties’ familiarity

with the other underlying facts, the procedural history, and the arguments on appeal, to which

we refer only as necessary to explain our decision to affirm.

                                       A. Jurisdictional Challenge

       Moore first argues that the district court lacked jurisdiction over the offense because the

indictment failed to allege that he knew he was a felon. In Rehaif v. United States, the Supreme

Court concluded that “in a prosecution under 18 U.S.C. § 922(g)[,] . . . the [g]overnment must

prove both that the defendant knew he possessed a firearm and that he knew he belonged to the




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relevant category of persons barred from possessing a firearm.” 139 S. Ct. 2191, 2200 (2019). Here,

the indictment alleged only that Moore, “after having been convicted in a court of a crime

punishable by imprisonment for a term exceeding one year, knowingly did possess, in and

affecting commerce, a firearm.” App’x 9.

       But Moore’s argument that the district court lacked subject matter jurisdiction was

expressly rejected by this Court in United States v. Balde, 943 F.3d 73 (2d Cir. 2019). In Balde, we

concluded that where, as here, the indictment closely tracks the language of the relevant statute,

there is “little doubt that the indictment . . . alleges the violation of a federal criminal offense,”

even without specifically outlining the “knowingly” standard clarified in Rehaif. Id. at 89. As we

further explained, “it is difficult to understand how an indictment that tracks the exact language

of the statute, and that expressly charges that the defendant violated it, fails on its face to charge

that the defendant committed a federal crime.” Id. at 90. Moore points to no distinguishing

factors between his case and Balde in this respect, and we find none. Accordingly, we find that

Balde forecloses Moore’s argument.

                                          B. Rule 11 Challenge

       Moore also argues that his plea was not voluntary and intelligent because the district court

did not inform him of the statute’s knowledge requirement. Under the Federal Rules of Criminal

Procedure, the district court “must inform the defendant of, and determine that the defendant

understands[,] . . . the nature of each charge to which the defendant is pleading.” Fed. R. Crim.

P. 11(b)(1)(G). The Rules further mandate that “[b]efore entering judgment on a guilty plea, the

court must determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). In doing

so, the district court may “rely on the defendant’s admissions and any other evidence placed on


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the record at the time of the plea, including evidence obtained by inquiry of either the defendant

or the prosecutor.” United States v. Robinson, 799 F.3d 196, 199–200 (2d Cir. 2015). Because Moore

did not raise his Rule 11 argument below, his claim “is reviewable only for plain error.” United

States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). To constitute plain error, the “appellant must

demonstrate that (1) there is an error; (2) the error is clear or obvious, rather than subject to

reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the error

seriously affects the fairness, integrity[,] or public reputation of judicial proceedings.” United

States v. Bastian, 770 F.3d 212, 219–220 (2d Cir. 2014) (citations, internal quotation marks, and

alterations omitted).   To demonstrate that the “unpreserved Rule 11 failing” affected the

defendant’s substantial rights, the “defendant is obliged to show . . . that, but for the error, he

would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).

       Moore has not shown plain error, as the record is devoid of any evidence that he would

have gone to trial had he been aware of the statute’s knowledge requirement as later articulated

in Rehaif. The parties agreed in the plea agreement that a two-point enhancement applied to

Moore’s criminal history calculation because he committed the instant offense while on parole

from his last felony conviction – for which he spent eleven years in prison. In fact, Moore

specifically acknowledged, under oath, that “[i]n March 2017 [he] possessed a firearm knowing

that [he] was a previously convicted felon.” App’x 49 (emphasis added). This case is thus quite

different from Balde, in which “the nature of [the defendant’s § 922(g)] status [as a possibly




                                                 4
unlawfully present alien] was hotly contested.” 943 F.3d at 97. Accordingly, we decline to find

plain error. 1

                                       C. Career Offender Guidelines

        Moore next argues that he received ineffective assistance of counsel because his trial

attorney failed to argue that he was not a career offender for the purposes of section 4B1.1(a) of

the Guidelines. When faced with a claim of ineffective assistance on direct appeal, we may: “(1)

decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent

[petition] pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary

factfinding; or (3) decide the claim on the record before us.” United States v. Morris, 350 F.3d 32,

39 (2d Cir. 2003). Ordinarily, “a motion brought under § 2255 is preferable to direct appeal for

deciding claims of ineffective assistance” because “a trial record [is] not developed precisely for

the object of litigating or preserving the [ineffective assistance] claim and [is] thus often

incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S. 500, 504–05 (2003).

        We decline to decide Moore’s claim given the limited record before us. Moore faults his

attorney’s decision not to challenge his career offender calculation, but the attorney could very

well have had strategic reasons for that decision. Claims of this nature should not be addressed




1Moore contends in his reply brief that his challenge was “not that the district court violated Rule 11” but
that it violated his “right to due process inasmuch as it accepted a plea from him that was not knowing and
intelligent.” Reply at 7. As an initial matter, Moore clearly did argue that his plea agreement was
involuntary under Rule 11. See, e.g., Moore Br. at 19. Regardless, because the substance of Moore’s Rule 11
and due process claims are the same, we hold that the latter claim fails for the same reasons as outlined
above. Put simply, contrary to Moore’s assertions, his case does not raise the same due process concerns
as Bousley v. United States, 523 U.S. 614 (1998), and does not concern the unknowing waiver of certain
fundamental rights that the Supreme Court has suggested could not survive plain error review, see United
States v. Dominguez Benitez, 542 U.S. 74, 84 n.10 (2004).


                                                     5
on direct appeal, except in highly unusual circumstances, without first allowing trial counsel the

opportunity to explain his decision. See Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998). We

therefore dismiss Moore’s claims of ineffective assistance of counsel without prejudice to renewal

as part of a future petition under 28 U.S.C. § 2255.

                                     D. Additional Sentencing Challenges

        Moore raises a number of additional challenges to his sentence. But it is well settled that

where, as here, a defendant knowingly and voluntarily waives his right to appeal any sentence

within a stipulated Guidelines range, he may not then appeal the sentence. See, e.g., United States

v. Coston, 737 F.3d 235, 237 (2d Cir. 2013); United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir.

2000). Moore agreed not to appeal or collaterally challenge any sentence within the stipulated

Guidelines range of 84 to 188 months’ imprisonment or the district court’s determination

regarding the applicability of section 4B1.1 of the Guidelines. Since the district court expressly

explained the consequences of the waiver during the plea proceeding, Moore may not now

challenge his sentence on appeal. 2

        We have reviewed the remainder of Moore’s arguments and find them to be without

merit. For the foregoing reasons, the order of the district court is AFFIRMED.




                                                   FOR THE COURT:
                                                   Catherine O=Hagan Wolfe, Clerk of Court




2
 To the extent Moore raises an additional ineffective assistance of counsel claim with respect to these issues,
he may do so as part of a petition pursuant to 28 U.S.C. § 2255.


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