United States v. Shaw , 65 F. App'x 851 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-22-2003
USA v. Shaw
Precedential or Non-Precedential: Non-Precedential
Docket 02-2269
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-2269
UNITED STATES OF AMERICA
v.
DOUGLAS M. SHAW, JR.
a/k/a D
Douglas M. Shaw, Jr.,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 01-cr-00267-02)
District Judge: Hon. Faith S. Hochberg
Submitted Under Third Circuit LAR 34.1(a)
May 22, 2003
Before: SCIRICA, Chief Judge, SLOVITER and NYGAARD, Circuit Judges
(Filed May 22, 2003)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
In this appeal from his conviction for conspiracy to distribute and possess with
intent to distribute more than 50 grams of crack cocaine, Appellant Douglas Shaw argues
that the Government did not prove that the cocaine base he sold was in fact crack.
I.
Shaw entered into a plea agreement dated June 8, 2001, in which he agreed that, on
or about January 2001 until April 17, 2001, he conspired with others to distribute and
possess with intent to distribute in excess of 50 grams of crack cocaine. At the change of
plea hearing, he confessed to distribution of approximately 60 grams of crack cocaine on
April 17, 2001 to Leron Jackson at a Burger King restaurant. In response to an inquiry by
the District Court, Shaw stated that he understood the terms of his plea agreement which
contained the words “crack cocaine.” App. at 27-8. The District Court then accepted
Shaw’s guilty plea.
At the sentencing hearing, Shaw’s counsel moved for a downward departure, on
various grounds which were, as the Government stated, “eloquently advanced.” App. at
53. The court denied the motion. Thereafter, counsel sought reconsideration of Shaw’s
career offender status and was successful on that motion. Shaw was sentenced to 144
months in prison, instead of being subject to a sentencing range of 262 to 327 months
applicable to a career offender.
On appeal, Shaw argues that the Government did not prove that the cocaine base in
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his possession on April 17, 2001 was crack. His counsel filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967). To satisfy the Anders requirements, appellant’s
counsel must “satisfy the court that he or she has thoroughly scoured the record in search
of appealable issues” and “explain why the issues are frivolous.” United States v.
Marvin, 211 F.3d 778, 780 (3d Cir. 2000). Under Anders, if, after review of the district
court record and a conscientious investigation, counsel is convinced that the appeal
presents no issue of arguable merit, counsel may properly ask to withdraw while filing a
brief referring to anything in the record that might arguably support the appeal. 386 U.S.
at 744. The defendant is given an opportunity to file a brief, and Shaw filed a pro se
brief.
II.
As noted above, Shaw argues that the Government should have been required to
prove that the substance in his possession was in fact “crack cocaine” for purposes of
sentencing. He does not argue that the substance was not crack and, significantly, has
admitted that he was selling crack. In an exhaustive colloquy with the District Court,
Shaw answered as follows:
Q On that date did you get approximately 60.4 grams
gross of crack cocaine from an individual known to you as ‘E’
and sometimes referred to you as Esai, which you planned to
sell to the individual?
A Yes.
Q Later on April 17th, 2001, did you appear at the Burger
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King parking lot with approximately 60.4 grams gross of
crack cocaine, get into a vehicle with Leron Jackson and the
individual and hand the crack cocaine to Leron?
A Yes.
. . .
Q In or about March 2001 did you purchase
approximately 100 hundred grams of crack cocaine from a
New York City source known to you as Mohan also known as
‘Moo’?
A Yes.
App. at 37.
He also admitted that he fully understood the terms of his agreement and the crime
to which he was pleading guilty. Under the circumstances, we reject Shaw’s argument
that the Government failed to prove that the substance was crack cocaine. There was no
need to prove something Shaw had admitted.
Shaw also argues that his trial counsel gave ineffective assistance. We have held
that such challenges should be brought in collateral actions and not on direct appeal.
United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). In Haywood, this court
reiterated that the only exception to this rule is “‘[w]here the record is sufficient to allow
a determination of ineffective assistance of counsel, [and] an evidentiary hearing to
develop the facts is not needed.’” Id. (quoting United States v. Headley, 923 F.2d 1079,
1083 (3d Cir. 1991)). This is not such a case.
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III.
For the reasons set forth, we will affirm the judgment of conviction and sentence.
We will grant counsel’s motion to be relieved.
/s/ Dolores K. Sloviter
Circuit Judge