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United States of America v. Malcolm Moore

May 29, 2012

UNITED STATES OF AMERICA
v.
MALCOLM MOORE



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Defendant Malcolm Moore has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (the "§ 2255 Motion") challenging his sentence of 300 months and one day imprisonment. The Government has filed a Motion to Dismiss the § 2255 Motion on the ground that Moore waived his right to bring a § 2255 Motion in his Plea Agreement. For the following reasons, we grant the Government's Motion and dismiss the § 2255 Motion.

I. BACKGROUND

Defendant Malcolm Moore committed a gunpoint robbery of Jimmy's Angels Salon in Philadelphia on May 19, 2009. On November 18, 2010, Moore pled guilty to three charges stemming from this robbery: interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a); using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Moore entered into a Plea Agreement with the Government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) and agreed to a sentence of 300 months and one day imprisonment, five years of supervised release, a $300 special assessment, and mandatory restitution. On February 3, 2011, we imposed that sentence, which included a downward variance from Moore's advisory Guidelines sentencing range of 451 to 488 months. Moore asks, in the § 2255 Motion, that we vacate this sentence on the ground that we erred at sentencing by classifying him as a Career Offender pursuant to U.S.S.G. § 4B1.1.*fn1

II. LEGAL STANDARD

The Government has moved to dismiss Moore's § 2255 Motion on the ground that Moore waived his right to collaterally attack his sentence in his Guilty Plea Agreement. The United States Court of Appeals for the Third Circuit has held that a defendant's waiver of appellate or collateral attack rights is enforceable provided that (1) it was entered into knowingly and voluntarily; (2) no specific exception set forth in the agreement applies; and (3) enforcement of the waiver would not work a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (citing United States v. Jackson, 523 F.3d 234, 243-44 (3d Cir. 2008)); see also United States v. Shedrick, 493 F.3d 292, 297-98 (3d Cir. 2007); United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001).

III. DISCUSSION

A. Knowing and Voluntary Waiver

We first "consider whether there is record evidence that [Moore] knowingly and voluntarily signed the waiver." United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). In making this determination, we look to the language of the waiver and to the guilty plea colloquy. See United States v. Mabry, 536 F.3d 231, 238 (3d Cir. 2008) (citing Gwinnett, 483 F.3d at 203-04).

The language of Moore's Guilty Plea Agreement clearly provides that, with only limited exceptions, he waived his right to appeal or collaterally attack his conviction and sentence pursuant to 28 U.S.C. § 2255: "the defendant voluntarily and expressly waives all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter . . . under . . . 28 U.S.C. § 2255." (Guilty Plea Agreement ¶ 8.) The Guilty Plea Agreement also states that defendant "acknowledges his waiver of rights" (Id. ¶ 1), and that "the defendant and [his] lawyer have fully discussed this plea agreement." (Id. ¶ 11).

Prior to accepting Moore's guilty plea, the Honorable Cynthia Rufe conducted a plea colloquy pursuant to Federal Rule of Criminal Procedure 11, which provides as follows:

Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands . . .

(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.

Fed. R. Crim. P. 11(b)(1); see also Gwinnett, 483 F.3d at 204. During the plea colloquy, Judge Rufe confirmed that Moore had read the Guilty Plea Agreement and discussed it completely with his attorney. (11/18/10 Hr'g Tr. at 13-14.) Judge Rufe asked Moore whether he had been threatened, coerced, or forced into pleading guilty; he answered that he had not been. (Id. at 20.) Moreover, the Government explained that the Guilty Plea Agreement contained a waiver of Moore's right to collaterally attack his conviction and sentence, which Moore stated he understood. (Id. at 15-16, 30-31.) Judge Rufe also conducted the following colloquy with Moore with respect to the waiver: THE COURT: Now, you also have appellate rights which are affected by your guilty plea. Do you understand that if you were found guilty at trial, you could then appeal that ...


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