UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4257

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

FLOYD B. MOORE, a/k/a Jesse, a/k/a Diamond Jesse, 

Defendant - Appellant. 

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. Thomas E. Johnston, 

District Judge. (2:09-cr-00222-2) 

Submitted: December 29, 2011 Decided: February 2, 2012

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Amy Lee Copeland, AMY LEE COPELAND, LLC, Savannah, Georgia, for 

Appellant. R. Booth Goodwin, II, United States Attorney, 

Steven I. Loew, Assistant United States Attorney, Charleston, 

West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Floyd B. Moore pled guilty, pursuant to a written plea 

agreement, to one count of a violation of the Racketeer 

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. 

§ 1962(c) (2006). The district court sentenced Moore to fiftyseven months’ imprisonment. On appeal, Moore argues that the 

district court erred in finding that a sufficient factual basis 

supported his guilty plea and that trial counsel rendered 

ineffective assistance. The Government has moved for summary 

dismissal of the appeal, arguing that Moore waived his ability 

to appeal the district court’s determination that an adequate 

factual basis supported his guilty plea and is barred by the 

invited error doctrine from raising this challenge on appeal, 

and that ineffective assistance of counsel does not conclusively 

appear on the record. Although we deny the Government’s motion 

to dismiss the appeal, we affirm the district court’s judgment.*

 

 * The Government relies on United States v. Willis, 992 F.2d 

489 (4th Cir. 1993), to support its argument that this court 

should summarily dismiss this appeal. Willis, however, stands 

for the unremarkable proposition that a defendant’s knowing, 

voluntary, and intelligent guilty plea waives non-jurisdictional 

defects, including the right to challenge factual guilt to the 

charges at issue. Id. at 490-91. Moore’s appellate challenge 

to the district court’s conclusion that an adequate factual 

basis supported his guilty plea is premised on the court’s 

alleged failure to comply with Fed. R. Crim. P. 11(b)(3) and is 

thus not foreclosed by Willis. See United States v. Mitchell, 

104 F.3d 649, 652 n.2 (4th Cir. 1997). We also conclude that 

the invited error doctrine does not bar our consideration of 

(Continued)
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The district court is required to satisfy itself that 

there is a factual basis for a defendant’s guilty plea prior to 

entering judgment on the plea. Fed. R. Crim. P. 11(b)(3). “The 

rule is intended to ensure that the court make[s] clear exactly 

what a defendant admits to, and whether those admissions are 

factually sufficient to constitute the alleged crime.” United 

States v. Ketchum, 550 F.3d 363, 366 (4th Cir. 2008) (internal 

quotation marks omitted). Because Moore did not challenge the 

sufficiency of the factual basis supporting his guilty plea in 

the district court, we review his challenge for plain error

only. United States v. Mastrapa, 509 F.3d 652, 656-57 (4th Cir. 

2007). To prevail under this standard, Moore must establish 

that a clear or obvious error by the district court affected his 

substantial rights. United States v. King, 628 F.3d 693, 699 

(4th Cir. 2011). 

The RICO Act provides that it is unlawful for any 

person “associated with any enterprise engaged in, or the 

activities of which affect, interstate or foreign commerce, to 

conduct or participate, directly or indirectly, in the conduct 

of such enterprise’s affairs through a pattern of racketeering 

 

Moore’s Rule 11(b)(3)-based challenge. Id. Further, summary 

dismissal of Moore’s claim of ineffective assistance of counsel 

is not warranted. 4th Cir. R. 27(f). 
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activity.” 18 U.S.C. § 1962(c). A defendant’s guilt on a 

charge of violating § 1962(c) is thus established by showing: 

(1) the existence of an enterprise; (2) the defendant’s 

association with the enterprise; (3) the defendant’s 

participation in the affairs of the enterprise; (4) a pattern of 

racketeering activity; and (5) the enterprise’s effect on 

interstate commerce. United States v. Hooker, 841 F.2d 1225,

1227 (4th Cir. 1988) (en banc). “Racketeering activity” is 

defined as “any act or threat” involving specified crimes under 

state law punishable by imprisonment for more than one year or 

“any act [that] is indictable” under various federal criminal 

statutes, including the Travel Act, 18 U.S.C. § 1952 (2006). 

18 U.S.C. § 1961(1)(A)-(B) (2006). For a “pattern” of such 

activity to be present, there must be proof of at least two 

racketeering acts within a ten-year period. Id. § 1961(5). 

Additionally, the racketeering acts must be related and must 

amount to or pose a threat of continued criminal activity. 

H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989); 

ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 181 (4th Cir. 2002). 

Moore contends that the factual basis supporting his 

plea was insufficient because it failed to establish a violation 

of the Travel Act, one of the predicate acts forming the basis 

for his RICO violation. We disagree. In this case, the record 

makes clear that third parties traveled interstate at Moore’s 
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direction to deliver to him proceeds of illegal gambling 

activity. We also reject as without merit Moore’s assertion 

that no Travel Act violation is present because the illegal 

gambling activity at issue in this case did not constitute a 

continuous course of conduct. Interruption-less activity is not 

the sine qua non of a business enterprise for Travel Act 

purposes. See United States v. Rawle, 845 F.2d 1244, 1246, 

1248-49 (4th Cir. 1988). Further, after a thorough review of 

the record and the parties’ briefs, we reject as meritless 

Moore’s claim that the predicate racketeering acts lacked 

sufficient continuity and relationship to constitute a pattern 

of racketeering activity. Accordingly, we discern no error, 

plain or otherwise, by the district court. 

Moore also claims that trial counsel rendered 

ineffective assistance in the proceedings before the district 

court. Claims of ineffective assistance of counsel generally 

are not cognizable on direct appeal. 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 

claims in a 28 U.S.C.A. § 2255 (West Supp. 2011) motion. Id. 

An exception exists, however, where the record conclusively 

establishes ineffective assistance. United States v. 

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). After review of 

the record, we find no conclusive evidence that trial counsel 
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rendered ineffective assistance, and we therefore decline to 

consider this claim on direct appeal. 

Accordingly, we deny the Government’s motion to 

dismiss the appeal, but affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED