US v. Archavis B. Moore, No. 06-5037 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-5037 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARCHAVIS BRIANN MOORE, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:05-cr-00028) Submitted: October 17, 2008 Decided: December 29, 2008 Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges. Affirmed and remanded by unpublished per curiam opinion. Sandra J. Barrett, LAW OFFICE OF SANDRA J. BARRETT, Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Archavis Briann Moore was convicted by a jury of possession of a firearm after having been convicted of a crime punishable by more than one year of imprisonment, in violation of 18 U.S.C. § 922(g) (2000), possession with intent to distribute detectable amounts of cocaine base and marijuana, in violation of possession 21 of U.S.C. a firearm § 841(a)(1), during a (b)(1)(C) drug trafficking violation of 18 U.S.C. § 924(c) (2000). concluded that Moore qualified for (2000), and crime, in The district court enhanced sentencing as a career offender pursuant to U.S. Sentencing Guidelines Manual (USSG) § 4B1.1 (2005), and sentenced him to a total of 360 months of imprisonment. While Moore s Moore timely appealed. appeal was pending, we granted the Government s motion to remand the case to the district court for a hearing on a potential conflict of interest because Moore s counsel was under investigation by the Government. At the hearing, the district court found an actual conflict of interest existed and relieved counsel from further representation. New counsel was appointed to represent Moore on appeal. Moore ineffective first assistance conflict of interest. asserts of that counsel he based received on trial per se counsel s The Government responds, arguing that there is no evidence that, at the time of his representation of 2 Moore, counsel was aware that he was under investigation; and that the record does not reflect any adverse effect of such possible knowledge on counsel s representation of Moore in this case. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C. § 2255 (2000) motion. See id.; Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). United States v. An exception exists when the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Our review of the record leads us to conclude that it does not conclusively show that counsel was ineffective, or that counsel was aware of the Government s investigation of his conduct during his representation of Moore. Moore also argues that he was improperly sentenced as a career offender. Moore was classified as a career offender based on prior felony convictions for robbery with a dangerous weapon and kidnapping and possession with intent to sell and deliver marijuana. application of the In considering Guidelines, this the court district court s reviews factual findings for clear error and legal conclusions de novo. States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). 3 United Moore asserts three defects in his sentencing. First, he argues that the court erred in imposing career criminal status because alleging more statute. Government than one failed prior to file conviction, as an information required by the The career offender Guidelines provision does not, however, felony the require pretrial convictions. Further, sentencing enhancement convictions is not notice a the this based part of court on of necessary the the has predicate held that defendant s charge, and need a prior not be included in the indictment. United States v. Thompson, 421 F.3d 278, 280-84 (4th Cir. 2005). This argument is without merit. Moore next argues that the district court erred in counting his 1993 convictions for robbery with a dangerous weapon and second degree kidnapping as separate convictions for purposes of sentencing, exposing the him Government to an agreed enhanced that sentence. Moore s robbery At and kidnapping convictions should count as only one conviction for sentencing purposes, and the record reflects they were counted as only one conviction. Moore s final argument is that his marijuana conviction was not a qualifying felony drug conviction because the statutory maximum sentence used to determine whether a conviction is a felony should be the presumptive range sentence and not the aggravated range sentence under North Carolina s 4 structured sentencing statute. Moore acknowledges that his argument is negated by this court s decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), but asserts Harp should be reconsidered. Moore has not provided any persuasive reason why this decision should be reconsidered, and a panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court. Only the Supreme Court or this court sitting en banc can do that. Scotts Co. v. United Indus. Corp., (4th 315 quotation district F.3d marks court 264, and 271-72 n.2 citations properly Cir. omitted). determined 2002) We was that find Moore (internal that a the career offender. We therefore affirm Moore s convictions and sentence. The written judgment of the district court erroneously states that Moore s conviction on Count Two was for possession with intent to cocaine distribute base and cocaine marijuana. district court for with oral argument cocaine Accordingly, correction dispense and of this because base, we remand clerical the rather facts to error. and than the We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED AND REMANDED 5

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