United States v. Drake , 38 F. App'x 698 ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-21-2002
    USA v. Drake
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 98-1388
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
    Recommended Citation
    "USA v. Drake" (2002). 2002 Decisions. Paper 286.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/286
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 98-1388
    UNITED STATES OF AMERICA
    v.
    MARK DRAKE, a/k/a "Rasul",
    Appellant
    ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
    EASTERN DISTRICT OF PENNSYLVANIA
    (Dist. Court No. 90-cr-00379-02)
    District Court Judge: Honorable Bruce W. Kauffman
    Submitted Under Third Circuit LAR 34.1(a)
    May 7, 2002
    Before: NYGAARD, ALITO, and ROSENN, Circuit Judges
    (Opinion Filed: May 21, 2002)
    OPINION OF THE COURT
    PER CURIAM:
    Because we write for the parties only, the background of the case need not
    be set out. The Supreme Court held in Slack v. McDaniel, 
    120 S. Ct. 1595
    , 1602-03
    (2000), that a certificate of appealability is required to appeal from the denial of a habeas
    petition, even with respect to an appeal filed after the April 24, 1996, the effective date
    of the Antiterrorism and Effective Death Penalty Act of 1996, 
    110 Stat. 1214
    . A
    certificate of appealability should issue "only if the applicant has made a substantial
    showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). To establish
    this, "the petitioner must demonstrate that reasonable jurists would find the district
    court’s assessment of the constitutional right claims debatable or wrong." Slack, 
    529 U.S. at 484
    . According to Slack, a certificate of appealability would be required to
    pursue an appeal in this case, but no such certificate should issue for the reasons outlined
    below.
    We review the District Court’s factual findings under the "clearly erroneous"
    standard. See Anderson v. City of Bessemer City, 
    470 U.S. 564
    , 573-74 (1985). Based
    on the evidence adduced at the evidentiary hearings, the District Court found that the
    government never offered a 96-month sentence to Drake and that no such offer could
    have been made because it was far below the sentencing guidelines level that Drake
    faced as a "career offender." The District Court also found that the letter from Drake’s
    attorney clearly stated that the best offer the government was willing to make was the 2-
    point reduction for pleading guilty. Finally, the District Court found that all parties,
    including Drake, knew that the best sentence he could get was in the range of 324 to 405
    months following a plea of guilty. Based on these factual findings, the District Court
    concluded that Drake’s counsel was not "ineffective" for never conveying a government
    offer that did not exist. We hold that the District Court’s findings were not clearly
    erroneous.
    For the first time on appeal, Drake argues that he was incorrectly informed by
    counsel regarding the maximum statutory penalty he was facing. If he had been properly
    advised, Drake argues, he would have been able to negotiate a more favorable plea
    agreement and would have entered a guilty plea.
    The government correctly points out that the three counts of cocaine distribution
    (the maximum penalty for each of which was 20 years) plus the four counts of use of a
    communications facility to further a drug trafficking crime (the maximum penalty for
    each of which was four years) total a potential maximum sentence of 76 years. This 76-
    year potential maximum sentence well accommodated the 324 to 405 month guideline
    term which the attorneys before trial estimated would apply if a plea was entered.
    Therefore, even if we were to entertain this new argument on appeal, it would not be
    meritorious.
    We have considered all of the appellant’s arguments and see no basis for reversal.
    The judgment of the District Court is therefore affirmed.
    

Document Info

Docket Number: 98-1388

Citation Numbers: 38 F. App'x 698

Filed Date: 5/21/2002

Precedential Status: Non-Precedential

Modified Date: 1/12/2023