UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4253

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEWIS MOORE, III, a/k/a Little Lewis,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (2:11-cr-00044-BO-1)

Submitted: April 9, 2015 Decided: April 28, 2015

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Raymond C. Tarlton, TARLTON LAW PLLC, Raleigh, North Carolina, 

for Appellant. Thomas G. Walker, United States Attorney, 

Jennifer P. May-Parker, Phillip A. Rubin, Assistant United 

States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Lewis Moore, III, pled guilty pursuant to a written plea 

agreement to conspiracy to distribute and possess with intent to 

distribute 50 grams or more of cocaine base, in violation of 21 

U.S.C. § 846 (2006). Following his guilty plea, the Supreme 

Court decided Dorsey v. United States, 132 S. Ct. 2321 (2012), 

which retroactively applied the Fair Sentencing Act’s (“FSA”) 

more lenient penalties to defendants like Moore. Id. at 2326. 

The applicable statutory minimum and maximum sentences under the 

FSA were reflected in Moore’s presentence report, and Moore was 

sentenced within that statutory sentencing range to 235 months’ 

imprisonment. On appeal, Moore argues that his guilty plea did 

not comply with Fed. R. Crim. P. 11 because he entered the plea 

believing he would be subject to the pre-FSA sentencing range 

rather than the FSA sentencing range. For the reasons that 

follow, we affirm.

Because Moore did not move in the district court to 

withdraw his guilty plea or otherwise raise Rule 11 error, we 

review for plain error. United States v. Vonn, 535 U.S. 55, 59 

(2002); United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 

2014). In order to satisfy the plain error standard, Moore 

bears the burden of establishing that: “(1) there is an error,

(2) the error is plain, and (3) the error affects substantial 

rights.” Henderson v. United States, 133 S. Ct. 1121, 1126
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(2013); see Vonn, 535 U.S. at 59 (“We hold that a silent 

defendant has the burden to satisfy the plain-error rule.”). In 

the guilty plea context, a defendant establishes that his 

substantial rights have been affected by “show[ing] a reasonable 

probability that but for the error, he would not have entered 

the plea.” United States v. Davila, 133 S. Ct. 2139, 2147 (2013)

(internal quotation marks omitted). Even if Moore establishes 

these three elements, the decision to correct the error lies

within our “remedial discretion,” which we will exercise only if 

“the error seriously affects the fairness, integrity or public 

reputation of judicial proceedings.” Henderson, 133 S. Ct. at 

1126-27 (alterations and internal quotation marks omitted). 

It is undisputed that the first two elements of the plain 

error test are satisfied here, in light of the holding in 

Dorsey. Johnson v. United States, 520 U.S. 461, 468 (1997) 

(“[W]here the law at the time of trial was settled and clearly 

contrary to the law at the time of appeal[,] it is enough that 

an error be ‘plain’ at the time of appellate consideration.”). 

After carefully reviewing the record, we conclude that Moore has 

failed to demonstrate that this error affected his substantial 

rights. Moore made no attempt to withdraw his guilty plea after 

being presented with the correct sentencing range in his 

presentence report. Additionally, the evidence against Moore 
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was strong, and it appears unlikely that Moore would have 

realized any benefit by going to trial. 

Accordingly, we affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process. 

AFFIRMED