James R. Moore v. United States, 592 F.2d 753 (4th Cir. 1979). · Go Syfert
James R. Moore v. United States, 592 F.2d 753 (4th Cir. 1979). Cases Citing This Book View Copy Cite
56 citation events (20 in the last 25 years) across 18 distinct courts.
Strongest positive: United States v. Darrius King (ca4, 2024-01-26)
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Darrius King
4th Cir. · 2024 · confidence medium
In Moore v. United States, we recognized that special parole is a “significant penalty” because the defendant could “serve his original sentence plus a 6 USCA4 Appeal: 19-4865 Doc: 72 Filed: 01/26/2024 Pg: 7 of 12 substantial additional period” if he violates his conditions of release. 3 592 F.2d 753, 755 (4th Cir. 1979).
discussed Cited as authority (rule) State v. Timothy L. Finley, Jr. (2×)
Wis. · 2016 · confidence medium
See, e.g., United States v. Perez-Carrera, 243 F.3d 42, 42-44 (1st Cir. 2001) (defendant 37 No. 2014AP2488-CR.akz who was misinformed that a count carried a mandatory 5-year penalty rather than a mandatory 10-year penalty and who was sentenced was not entitled to withdraw his plea; the district court was instructed, on remand, to modify the sentence imposed by reducing the incarcerative term to 5 years); Moore v. United States, 592 F.2d 753, 754-56 (4th Cir. 1979) (defendant who claimed he understood maximum penalty for offense to be 15 years and who was sentenced to 15 years imprisonment plus…
discussed Cited as authority (rule) Baines v. State (2×)
Md. · 2010 · confidence medium
Because a special parole violation could increase “the possible period of confinement,” the Court of Appeals held that "[ejxplanation ... in open court is ... essential to comply with the Rule’s mandate that the defendant be informed of the maximum possible penalty....” Moore, 592 F.2d at 755 (internal quotation marks and citations omitted).
cited Cited as authority (rule) United States v. Lane
4th Cir. · 2004 · confidence medium
Id. (citing Moore v. United States, 592 F.2d 753, 756 (4th Cir.1979)).
discussed Cited as authority (rule) United States v. Feurtado
4th Cir. · 2002 · confidence medium
On appeal, this court remanded the case, stating: the district court may, in its discretion, see Moore v. United States, 592 F.2d 753, 756 (4th Cir.1979), accept the respective plea agreement of an individual defendant and resentence the defendant so that the sentence of imprisonment plus the statutory five year period of supervised release does not exceed the actual term of imprisonment stated in the plea agreement.
discussed Cited as authority (rule) United States v. Feurtado
4th Cir. · 2002 · confidence medium
On appeal, this court remanded the case, stating that: the district court may, in its discretion, see Moore v. United States, 592 F.2d 753, 756 (4th Cir.1979), accept the respective plea agreement of an individual defendant and resentence the defendant so that the sentence of imprisonment plus the statutory five year period of supervised release does not exceed the actual term of imprisonment stated in the plea agreement.
discussed Cited as authority (rule) United States v. Feurtado
4th Cir. · 1999 · confidence medium
On remand the district court may, in its discretion, see Moore v. United States, 592 F.2d 753, 756 (4th Cir.1979), accept the respective plea agreement of an individual defendant and resentence the defendant so that the sentence of imprisonment plus the statutory five year period of supervised release does not exceed the actual term of imprisonment stated in the plea agreement.
cited Cited as authority (rule) United States v. Thorne
4th Cir. · 1998 · confidence medium
Good, 25 F.3d at 220 ; Moore v. United States, 592 F.2d 753, 756 (4th Cir. 1979).
cited Cited as authority (rule) United States v. Linwood Douglas Thorne
4th Cir. · 1998 · confidence medium
Good, 25 F.3d at 220 ; Moore v. United States, 592 F.2d 753, 756 (4th Cir.1979).
cited Cited as authority (rule) United States v. Floris
4th Cir. · 1998 · confidence medium
See United States v. Goins , 51 F.3d 400 (4th Cir. 1995); Moore v. United States, 592 F.2d 753, 756 (4th Cir. 1979).
cited Cited as authority (rule) Parry v. Rosemeyer
3rd Cir. · 1995 · confidence medium
P. 11(c)(1) (emphasis added) ( Moore v. United States, 592 F.2d 753, 755 (4th Cir. 1979)).
discussed Cited as authority (rule) Thomas G. Parry Bh-2648 v. Frederick Rosemeyer (2×)
3rd Cir. · 1995 · confidence medium
In 1982, Rule 11 was amended to require federal trial judges to inform the defendant of the maxi *116 mum possible penalty provided by law, including the effect of any special parole term, before accepting a guilty plea. 9 The Notes of the Advisory Committee on Rules regarding the 1982 amendment recommended that a judge inform a defendant of the following four items involving special parole: (1) that a special parole term will be added to any prison sentence he [or she] receives; (2) the minimum length of the special parole term that must be imposed and the absence of a statutory maximum; (3) …
discussed Cited as authority (rule) United States v. Thomas J. Cleary, Thomas James Cleary
3rd Cir. · 1995 · confidence medium
In particular, Rule 11(c)(1) requires the court to inform the defendant of, and make sure he or she understands, “the maximum possible penalty provided by law, including the effect of any special parole or supervised release term.” 2 The Notes of the Advisory Committee on Rules regarding the 1982 amendment of Rule 11(c)(1) recommends that a judge inform the defendant, and determine that he or she understands, the four following items in a ease involving special parole or supervised release: (1) that a special parole term will be added to any prison sentence he [or she] receives; (2) the mi…
cited Cited as authority (rule) United States v. Cleary
3rd Cir. · 1995 · confidence medium
P. 11(c)(1) (quoting Moore v. United States, 592 F.2d 753, 755 (4th Cir. 1979)).
discussed Cited as authority (rule) United States v. Tony Good
4th Cir. · 1994 · confidence medium
Although we find that the district judge failed to comply fully with Fed.R.Crim.P. 11(c) and this Court’s holding in Moore v. United States, 592 F.2d 753, 755 (4th Cir.1979), we nevertheless conclude that this error was harmless.
discussed Cited as authority (rule) United States v. James Edward Osment
8th Cir. · 1994 · confidence medium
See, e.g., Rodriguera v. United States, 954 F.2d 1465, 1468-69 (9th Cir.1992); United States v. Garcia-Garcia, 939 F.2d 230, 232-33 (5th Cir.1991); Moore v. United States, 592 F.2d 753, 755 (4th Cir.1979).
discussed Cited as authority (rule) United States v. Reed
D.D.C. · 1993 · confidence medium
Rule 11(c)(1) was amended in 1982 and 1989 to require that courts inform a defendant entering a plea of the effect of any special parole term or supervised release. 2 As the Fourth Circuit recognized in Moore v. United States, 592 F.2d 753, 755 (4th Cir.1979), Special parole is a significant penalty ...
discussed Cited as authority (rule) United States v. Suraphan Tuangmaneeratmun
5th Cir. · 1991 · confidence medium
Moore v. United States, supra, recommends that in an appropriate case the judge inform the defendant and determine that he understands the following: (1) that a special parole term will be added to any prison sentence he receives; (2) the minimum length of the special parole term that must be imposed and the absence of a statutory maximum; (3) that special parole is entirely different from — and in addition to — ordinary parole; and (4) that if the special parole is violated, the defendant can be returned to prison for the remainder of his sentence and the full length of his special parole…
discussed Cited as authority (rule) United States v. Felipe Molina-Uribe
5th Cir. · 1988 · confidence medium
Rule 11(c)(1) compels the Court to inform the defendant not only of the mandatory minimum, but of the possible maximum post-incarceration period during which the special parole will be effective along with an explanation of how it would operate (see Moore v. United States, 592 F.2d 753, 755 (4th Cir.1979), decided before the language “including the effect of any special parole term” was added to Rule 11(c)(1)) and to be itself convinced that the defendant understands the Court’s advice and explanations.
discussed Cited as authority (rule) United States v. Stephen F. Keefe
1st Cir. · 1980 · confidence medium
The sentence actually given — a 4 year prison term and a special parole term of 5 years — could thus not be said to exceed “the maximum penalty of which appellant was advised”, as was the situation in Moore v. United States, 592 F.2d 753, 756 (4th Cir. 1979), on which appellant principally relies. 3 *20 Obviously, a judge is well advised to be more clear about the peculiar attributes of a special parole term — it is in addition to the original or main term of incarceration; it can be of any length, theoretically for life; and upon violation at any time during a special parole term, e…
discussed Cited "see" United States v. George Andrews, Jr., United States of America v. Salvador Torres Garcia
5th Cir. · 1990 · signal: see · confidence high
In that circumstance, the court noted, “there would be no necessity to invalidate the defendant’s guilty plea in order to insure [sic] that the defendant understood the consequences of his plea, which is a purpose of Rule 11.” Id.; see Moore v. United States, 592 F.2d 753, 756 (4th Cir.1979) (when the sentence exceeds the term of which the court has informed the defendant, the “appropriate remedy” is set forth in Sheppard).
cited Cited "see" United States v. Dwight Steven Barry
10th Cir. · 1990 · signal: see · confidence high
See Moore v. United States, 592 F.2d 753, 755 (4th Cir.1979); 18 U.S.C. § 3583 (e)(3) (1988).
cited Cited "see" James Hinman v. United States
11th Cir. · 1984 · signal: see · confidence high
See Moore v. United States, 592 F.2d 753 (4th Cir.1979).
cited Cited "see" United States v. Thomas D. Gaertner
7th Cir. · 1983 · signal: see · confidence high
See Moore v. United States, 592 F.2d 753 (4th Cir.1979). 2 .
discussed Cited "see, e.g." Commonwealth v. Murphy
Mass. App. Ct. · 2008 · signal: see, e.g. · confidence low
See, e.g., Moore v. United States, 592 F.2d 753 (4th Cir. 1979) (where violation of special parole can lead to confinement beyond original sentence, Federal rule 11 requirement that defendant be informed of “maximum possible penalty provided by law” requires judge to inform defendant not only of minimum and maximum possible imprisonment for offense, but also of minimum length and absence of statutory maximum of special parole term, and that on violation he can be returned to prison for remainder of his sentence and full length of his special parole term; Failure to do so is “fundamental …
cited Cited "see, e.g." Meyer v. United States
E.D.N.Y · 1992 · signal: see also · confidence medium
Fed.R.Crim.P. 11(c); see also Moore v. United States, 592 F.2d 753, 755 (4th Cir.1979).
Retrieving the full opinion text from the archive…
James R. MOORE, Appellant,
v.
UNITED STATES of America, Appellee
77-1986.
Court of Appeals for the Fourth Circuit.
Feb 20, 1979.
592 F.2d 753
1979 U.S. App. LEXIS 16809
Ralph S. Spritzer, Philadelphia, Pa., for appellant., Elizabeth H. Trimble, Asst. U. S. Atty. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.
Butzner, Russell, Field.
Cited by 36 opinions  |  Published
BUTZNER, Circuit Judge:

James R. Moore appeals from the district court’s dismissal of his petition to set aside his guilty plea and his sentence. We remand with instructions to reduce the sentence or set aside the plea.

Moore entered into a bargain to plead guilty to one count of a two-count indictment charging violations of the narcotics laws, in return for the government’s promise to drop the other count of the indict-, ment and to recommend a 12-year prison sentence. In summarizing the applicable penalties before accepting the guilty plea, the district court correctly informed Moore that the relevant criminal statute required a special parole term of at least three years. This portion of the examination went as follows:

THE COURT: Well, under the law on which this first court is based . the possible maximum penalty is a fine of up to $25,000 or imprisonment for up to 15 years, and if any period of confinement is imposed, the law requires the imposition of a special parole term of at least three years. Do you understand that’s the possible maximum penalty under the law in this case?
DEFENDANT MOORE: Yes, sir.

The court then permitted Moore to change his plea to guilty. After the government recommended a sentence of 12 years and dropped the other count of the indictment, the court sentenced Moore to 15 years, the maximum possible prison term, and to an additional three-year special parole term.

[*755] Shortly after he was incarcerated, Moore filed a petition pursuant to 28 U.S.C. § 2255, seeking to vacate the sentence. He argued that his plea was invalid because he had not understood the maximum penalty for the offense and because it had not been explained to him. He also submitted an affidavit of his trial attorney stating that the attorney had not discussed special parole with him. The district court dismissed the petition without a hearing, finding that its mention of the fact that any prison sentence would be accompanied by a special parole term of not less than three years sufficed to comply with Rule 11 of the Federal Rules of Criminal Procedure.

Rule 11(c)(1) provides:

Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following: (1) . . . the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law . . .

Special parole is a significant penalty. See United States v. Sheppard, 588 F.2d 917 at 918 (4th Cir. 1978); Bell v. United States, 521 F.2d 713, 715 (4th Cir. 1975). Unlike ordinary parole, which does not involve supervision beyond the original prison term set by the court and the violation of which cannot lead to confinement beyond that sentence, special parole increases the possible period of confinement. It entails the possibility that a defendant may have to serve his original sentence plus a substantial additional period, without credit for time spent on parole. * Explanation of special parole in open court is therefore essential to comply with the Rule’s mandate that the defendant be informed of “the maximum possible penalty provided by law.” Cf. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

In a case presenting the possibility of special parole, the district judge should, after explaining the minimum and maximum possible imprisonment and fine for the offense in accordance with Rule 11, inform the defendant and determine that he understands the following:

(1) that a special parole term will be added to any prison sentence he receives;

(2) the minimum length of the special parole term that must be imposed and the absence of a statutory maximum;

(3) that special parole is entirely different from — and in addition to — ordinary parole; and

(4) that if the special parole is violated, the defendant can be returned to prison for the remainder of his sentence and the full length of his special parole term.

[*756] The district court’s omission of such an explanation, followed by its imposition of a combined sentence of imprisonment and special parole that exceeded the 15-year maximum of which the defendant had been advised, did not comply with Rule 11(c)(1).

Michel v. United States, 507 F.2d 461 (2d Cir. 1974), and Johnson v. United States, 539 F.2d 1241 (9th Cir. 1976), on which the government relies, do not present the problem of a combined sentence and parole exceeding the maximum penalty of which the defendant was advised. In Michel, the court refused to vacate the sentence despite a cursory Rule 11 examination with regard to special parole. The crucial difference between Michel and the present case is that in Michel, the combined sentence of imprisonment and special parole actually received by the defendant was considerably less than the relevant maximum prison sentence. In Johnson, the court informed the defendant that in addition to the five-year maximum prison sentence and the $15,000 maximum fine for each of the three counts of the indictment, there was a mandatory special parole term. The court twice emphasized that if the defendant were sentenced to prison, he would receive a special parole term that could run a minimum of two years and a maximum of “ad infinitum” on each of the three counts. 539 F.2d at 1243-44 and n.2. There is no indication that the defendant received a combined sentence of imprisonment and special parole that exceeded the maximum prison term of which he had been advised.

Relying on Bell, in which we refused to order rearraignment despite the district court’s failure to mention special parole, the government argues that any violation of Rule 11 did not amount to the “fundamental defect” leading to a “miscarriage of justice” that must be shown in a collateral attack upon an arraignment. See United States v. White, 572 F.2d 1007, 1009 (4th Cir. 1978).

We expressly based our decision in Bell on the fact that the combined sentence of prison and special parole received by the defendant was less than the maximum prison term of which he had been advised. 521 F.2d at 715. As we have noted, that is not true here. Moreover, unrebutted evidence indicates that neither the court nor Moore’s attorney explained that he could be imprisoned for more than 15 years, and there is no evidence that Moore in fact understood the maximum penalty at the time he entered his plea. In these circumstances, the court’s failure to comply with Rule 11(c)(1) was a fundamental defect. See Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It therefore entitles Moore to relief under 28 U.S.C. § 2255.

We do not believe, however, that the error requires -us to set aside the plea. The appropriate remedy is set forth in United States v. Sheppard, 588 F.2d at 918. If Moore’s prison sentence is reduced to 12 years, the combined sentence of prison and parole will correspond to what Moore claims he understood to be the maximum penalty, and any prejudice from the Rule 11 violation will be cured. The district court is in the best position to decide whether the sentence should be modified as an alternative to rearraignment. We therefore remand the case to the district court with directions, in its discretion, to reduce the prison sentence to 12 years or to set aside the plea and allow Moore to plead again.

*

21 U.S.C. § 841(c) provides:

A special parole term . . . may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term . . shall be in addition to, and not in lieu of, any other parole provided for by law.

The Department of Justice regulations [28 C.F.R. § 2.56 (1978)] to implement this statute state in part as follows:

(a) The Drug Abuse Prevention and Control Act, 21 U.S.C. §§ 801 to 966, provides that, on conviction of certain offenses, mandatory “special parole terms” must be imposed by the court as part of the sentence.

This term is an additional period of supervision which follows the completion of the regular sentence (including completion of any period on parole or mandatory release).

(b) At the time of release under the regular sentence, whether under full term expiration or under a mandatory release certificate or a parole certificate, a separate Special Parole Term certificate will be issued to the prisoner by the Bureau of Prisons.

(c) Should a releasee be found to have violated conditions of release during supervision under his regular sentence, i. e., before commencement of the Special Parole Term, he will be returned as a violator of his basic supervision period under his regular sentence; the Special Parole Term will follow unaffected, as in paragraph (a) of this section. Should a releasee violate conditions of release during the Special Parole Term he will be subject to revocation on the Special Parole Term . .