                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-2002

USA v. Hammary
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-2944




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Recommended Citation
"USA v. Hammary" (2002). 2002 Decisions. Paper 450.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/450


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                                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                             No. 00-2944



                     UNITED STATES OF AMERICA

                                 v.

                           DITEKO HAMMARY
                           aka "Muhammad"

                                            Diteko Hammary,
                                                      Appellant

          _______________________________________________

          On Appeal from the United States District Court
                   for the District of New Jersey
                  D.C. Criminal No. 98-cr-00315-1
                 (Honorable Garrett E. Brown, Jr.)
                        ___________________


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                           July 11, 2002

Before:   SCIRICA and GREENBERG, Circuit Judges, and FULLAM, District Judge*

                       (Filed: July 26, 2002)



     *The Honorable John P. Fullam, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.

                          __________________

                        OPINION OF THE COURT
                         __________________

SCIRICA, Circuit Judge.

     On May 25, 1999, Diteko Hammary pled guilty to one count of distribution and
possession with intent to distribute more than five grams of cocaine, in violation of 21
U.S.C. 841(a)(1) and (2).    Hammary was sentenced to 100 months’ imprisonment,
five years’ supervised release, a $3,000 fine and a special assessment of $100. After
sentencing, Hammary assisted the government in other prosecutions.   In response, the
government filed a motion for downward departure based on substantial assistance under
Fed. R. Crim. P. 35(b).   The trial court granted the motion and re-sentenced Hammary
to 75 months’ imprisonment. We will dismiss the appeal.
                                I.
     The government contends we have no jurisdiction because Hammary failed to
appeal in a timely manner. We agree. Fed. R. App. P. 4(b)(1)(A) provides:
          In a criminal case, a defendant’s notice of appeal must be filed in the
     district court within 10 days after the later of:
(i) the entry of either the judgment or the order being appealed; or
(ii) the filing of the government’s notice of appeal.

The District Court’s order granting the government’s Rule 35(b) motion was entered on
September 14, 2000, and Hammary’s notice of appeal was filed on September 29, 2000,
four days after the ten-day limit had expired.
     Even though Hammary did not file a motion for extension of time for filing the
notice of appeal, we have the authority to remand a case to the district court for a
determination of "excusable neglect" when a defendant files an untimely notice of
appeal. See Fed. R. App. 4(b)(1)(A); United States v. Richmond, 120 F.3d 434, 436 (3d
Cir. 1997). But we will not do so because Hammary’s appeal lacks merit and a remand
would be futile.
     In this case, defense counsel filed an Anders brief under Anders v. California, 386
U.S. 738 (1967). The Anders brief recites that Hammary’s guilty plea was valid, the
statute under which he was convicted is constitutional, and the District Court exercised
proper discretion when it re-sentenced Hammary. In response, Hammary filed a pro se
brief alleging ineffective assistance of counsel.
     We have examined the record and agree that there is no colorable issue which
supports an appeal in this case. Hammary’s guilty plea was valid because he made it
voluntarily and knowingly. The statute under which Hammary was convicted, 21 U.S.C.
 841(a), is constitutional. The District Court acted within its discretion when it
initially sentenced Hammary within the guideline range, and then later reduced that
sentence by 25 percent for substantial assistance.
     Hammary also claims ineffectiveness of counsel. But claims of ineffectiveness of
counsel will ordinarily not be heard on a direct appeal from a criminal conviction.
United States v. Tobin, 155 F.3d 636, 643 (3d Cir. 1998).                                II.
     For the foregoing reasons we will dismiss the appeal. Defense counsel’s motion to
withdraw as counsel for defendant will be granted.

TO THE CLERK:

          Please file the foregoing opinion.




                                          /s/ Anthony J. Scirica
                                           Circuit Judge

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 00-2944
                           ___________


                    UNITED STATES OF AMERICA

                               v.

                         DITEKO HAMMARY
                         aka "Muhammad"

                                          Diteko Hammary,
                                                    Appellant
         _______________________________________________

         On Appeal from the United   States District Court
                  for the District   of New Jersey
                 D.C. Criminal No.   98-cr-00315-1
                (Honorable Garrett   E. Brown, Jr.)



         Submitted Pursuant to Third Circuit LAR 34.1(a)
                          July 11, 2002

         Before:   SCIRICA and GREENBERG, Circuit Judges,
                    and FULLAM, District Judge*



                              JUDGMENT



     *The Honorable John P. Fullam, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
          This cause came to be considered on the record from the United States
District Court for the District of New Jersey and was submitted pursuant to Third Circuit
LAR 34.1(a) on July 11, 2002. On consideration whereof, it is now hereby
          ORDERED and ADJUDGED by this Court that the appeal of the judgment
of the District Court entered September 14, 2000, be, and the same is hereby dismissed.
Defense counsel’s motion to withdraw as counsel for defendant is granted. All of the
above in accordance with the opinion of this Court.


                               ATTEST:




                               Acting Clerk

DATED: 26 July 2002
