                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2007

USA v. Shedrick
Precedential or Non-Precedential: Precedential

Docket No. 04-2329




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                                   PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 04-2329


            UNITED STATES

                     v.

           JAMES SHEDRICK,

                                 Appellant


Appeal from the United States District Court
   for the Eastern District of Pennsylvania
  (D.C. Criminal Action No. 02-cr-00523)
District Judge: Honorable Legrome D. Davis


           Argued June 1, 2006

    Before: AMBRO, FUENTES, and
     GREENBERG, Circuit Judges

     (Opinion filed: February 28, 2007)
Peter A. Levin, Esquire (Argued)
1927 Hamilton Street
Philadelphia, PA 19130

      Counsel for Appellant

Patrick L. Meehan
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney
  Chief of Appeals
Thomas P. Hogan, Jr. (Argued)
  Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

      Counsel for Appellee




               OPINION OF THE COURT


AMBRO, Circuit Judge

       James Shedrick appeals from the District Court’s denial
of his 28 U.S.C. § 2255 petition for habeas corpus alleging
ineffective assistance of counsel. The Government contests our
jurisdiction, however, because of an appellate and collateral


                              2
review waiver contained in a plea agreement signed by
Shedrick. We conclude we have jurisdiction over this appeal
relating to ineffectiveness of counsel claims. We affirm the
District Court’s denial of Shedrick’s claim that his trial counsel
was ineffective for failing to advise him about sentencing
matters. We conclude, however, that ineffectiveness of counsel
prevented Shedrick from timely appealing his sentence. While
typically we would remand this issue to the District Court or
require additional briefing, neither is necessary here. As such,
we address the claim attacking his sentence on direct appeal.
We conclude that claim cannot be sustained, and thus affirm
Shedrick’s sentence.

I.     Factual and Procedural Background

       In the early morning of July 11, 2002, Philadelphia
Police Officers Keya Mason, Raymond Rutter, and Joy Gallen-
Ruiz, along with Sergeant Beverly Pembrook, were on patrol in
Philadelphia’s 12th District. Officer Mason responded to a 911
emergency call reporting a man with a gun located at 64th
Street and Greenway Avenue. Upon arriving at that address,
Officer Mason heard gun shots but did not see anyone in the
area.

      Sergeant Pembrook also responded immediately to the
911 call and, like Officer Mason, did not find anyone at the
scene. After a short time, however, Pembrook observed a
man—later identified as Shedrick—standing in the middle of

                                3
the intersection holding a large silver revolver in his right hand.
Pembrook made a priority radio call for back-up, stating that the
suspect was armed and not in custody.

        By that time, Mason had joined Pembrook. Officers
Rutter and Gallen-Ruiz, who were riding together, also arrived
at the scene. Pembrook and Mason stood in front of a police
car and attempted to engage Shedrick while Rutter and Gallen-
Ruiz began to approach him from covered positions behind
parked cars. The officers repeatedly instructed Shedrick to drop
the gun, but he refused. He pointed the gun at the sky and
attempted to fire three shots. The gun failed to discharge.

       The officers repeated their order for Shedrick to drop his
gun. He again aimed the gun upward and pulled the trigger
three more times. Yet again the gun failed to fire. Shedrick
then opened up the cylinder of the revolver, and empty shell
casings fell out of the weapon. When this occurred, the police
gang-tackled and disarmed him. Officer Rutter called in a
report indicating that Shedrick was in custody.

        Immediately after Shedrick was detained, the officers
were approached by two persons, Li Nguyen and Patricia
Edwards. Nguyen and Edwards stated that they had been in a
van on their way to work when Shedrick had appeared on the
street and started firing shots at their vehicle. One of the bullets
struck the front hood of the van. A second bullet penetrated the
windshield and traveled directly between Nguyen, who was

                                 4
driving, and Edwards, who was in the front passenger seat.
Nguyen and Edwards reported that they went to a police station
one block away to report the shooting. When they returned to
the spot where the shooting had occurred, they witnessed the
police tackling Shedrick.

        The police traced the gun in Shedrick’s possession, a
Smith & Wesson .357 caliber revolver, to an individual named
Aki Brickhouse. Brickhouse was charged with, and pled guilty
to, transferring the weapon to a convicted felon (Shedrick). He
also admitted that Shedrick had been selling crack cocaine on
a regular basis from a location in West Philadelphia and had
carried the Smith & Wesson while dealing drugs.

        Shedrick was charged with being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). He signed a
written agreement with the Government, pleading guilty to that
charge and specifically admitting that (1) he possessed the
revolver, (2) he had a prior felony record,1 and (3) the revolver
had traveled in interstate commerce. Shedrick vigorously
contested, however, any involvement in the van shooting (as
described by Nguyen and Edwards) and any drug dealing while


    1
     Shedrick pled guilty in October 2000 in the Philadelphia
Court of Common Pleas to possession with intent to deliver a
controlled substance (cocaine) and unlawful possession of an
unlicensed firearm.


                               5
armed with the revolver (as described by Brickhouse).

       The plea agreement expressly stated that Shedrick’s
maximum potential sentence was ten years’ imprisonment. It
went on to note that the Government was permitted to “make
whatever sentencing recommendation as to imprisonment . . .
[it] deems appropriate.” Indeed, both parties were “free to
argue the applicability of any other provision of the Sentencing
Guidelines, including offense conduct, offense characteristics,
criminal history, adjustments and departures.”

      The agreement also included a provision waiving not
only most appeals but also collateral attacks. It stated:

       10. In exchange for the undertakings made by the
       government in entering this plea agreement, the
       defendant voluntarily and expressly waives all
       rights to appeal or collaterally attack the
       defendant’s conviction, sentence, or any other
       matter relating to this prosecution, whether such
       a right to appeal or collateral attack arises under
       18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C.
       § 2255, or any other provision of law.

              a.     Notwithstanding the waiver
                     provision above, if the government
                     appeals from the sentence, then the
                     defendant may file a direct appeal

                               6
                    of his sentence.

             b.     If the government does not appeal,
                    then notwithstanding the waiver
                    provision set forth in paragraph 10
                    above, the defendant may file a
                    direct appeal but may raise only
                    claims that:

                    i.     the defendant’s sentence
                           exceeds the statutory
                           maximum; or

                    ii.    the sentencing judge
                           e rr o n e o usl y d e p a r te d
                           upward from the otherwise
                           applicable sentencing
                           guideline range.

      The District Court conducted a plea hearing in
November 2002. During Shedrick’s guilty plea colloquy, the
Court confirmed and reinforced the terms of the written plea
agreement. At the outset of the hearing, the Court stated:

      And a plea agreement has been reached and it is
      recorded in writing and will be filed certainly at
      the end of this proceeding.           But, most
      importantly, although the plea agreement states

                              7
       all of the agreements and understandings that
       exist between the defendant, defense counsel, and
       the Government, it does not recommend a set
       term of incarceration as binding upon this Court.
       Ultimately, the appropriate sentence would be left
       to the exercise of the Court’s discretion based
       upon information presented by both sides and
       based upon a review of the Sentencing
       Guidelines.

Later, the Court reiterated that the sentence would be left to its
discretion and that there were no “agreements with anyone
about what the right sentence should be.” Id. at 63. Shedrick
confirmed this understanding. He also acknowledged that no
other agreements existed between himself and the Government
except those contained in the written plea agreement. The
Court then made clear to Shedrick that the maximum sentence
in his case was ten years’ incarceration. Shedrick did express
some confusion whether the facts alleged in the plea agreement
included an admission that he aimed or shot at police officers,
prompting the Court to clarify that he had only agreed to plead
to the basic facts of possessing the gun as a convicted felon and
that any other issues were left to the parties to argue at
sentencing.

      After Shedrick entered his plea, the Probation Office
prepared a presentence report (“PSR”). It calculated Shedrick’s
base offense level at 20. It then recommended a four-level

                                8
enhancement under U.S. Sentencing Guidelines Manual §
2K2.1(b)(5) due to Shedrick’s prior felony conviction for a
controlled substance offense and a three-level downward
adjustment under U.S. Sentencing Guidelines Manual § 3E1.1
for acceptance of responsibility. Those adjustments resulted in
an offense level of 21 that, combined with a criminal history
category of III, yielded a Sentencing Guidelines range of 46 to
57 months.

        Two weeks prior to sentencing, the Government filed a
memorandum with the District Court arguing that (1) Shedrick
was subject to a four-level enhancement for possessing a
firearm in connection with another felony offense (specifically,
drug dealing), and (2) the Court should depart upward eight
levels from the established Guidelines range because Shedrick
had discharged the weapon during the commission of his
offense (by shooting at a van occupied by two people).
Shedrick objected.

       The District Court held a sentencing hearing during
which the potential enhancement for possession in connection
with another felony offense, as well as the upward departure for
shooting at the van, were contested. The Government called
two witnesses to provide a factual basis to support the
enhancement and departure: Brickhouse and Nguyen.

      Brickhouse testified that Shedrick had been selling
cocaine on a regular basis and that both Shedrick and his half-

                               9
brother, Tarik Robinson, had carried the Smith & Wesson
revolver while dealing drugs.

        Nguyen testified that he and Patricia Edwards were
driving to work in a red van at approximately 5:40 a.m. on the
date of Shedrick’s arrest, when a black man holding a silver
revolver started shooting at them. The Government provided
photographs to the District Court showing that bullets struck the
left front hood of the van and the mid-windshield, passing
between the two passengers. Nguyen recounted going to a
police station to report the shooting, returning to where it had
occurred, and witnessing the police tackling the man who had
shot at the van.2

        After Brickhouse and Nguyen’s testimony, Shedrick
testified to his version of events. He admitted that he had the
gun in his possession, but denied ever firing it. He also stated
that he did not know Brickhouse and had never seen Nguyen
prior to the sentencing hearing.

      The Government and defense counsel then engaged in
extended arguments about the enhancement and departure. The


  2
     Because Shedrick was wearing a black shirt when arrested,
it is notable that Nguyen testified that the shooter had been
wearing a white shirt. When confronted by that inconsistency,
Nguyen admitted that he had focused on the gun and could have
made a mistake about the color of the shooter’s shirt.

                               10
defense contended that there was insufficient evidence to show
that Shedrick either had been dealing drugs or had fired the
shots that struck Nguyen’s van. Thus, it was the defense’s
position that Shedrick should receive a sentence within the
standard Guidelines range—46 to 57 months.

       The Government, on the other hand, maintained that
because the evidence demonstrated that Shedrick had carried
the gun while dealing drugs (as testified to by Brickhouse) and
that Shedrick shot at the van (as testified to by Nguyen), both
the four-level enhancement and eight-level upward departure
should apply. It recommended to the Court a sentence of 100
months’ incarceration.3

       At the close of the hearing, the District Court found that
Brickhouse and Nguyen were credible witnesses, and thus
applied the four-level enhancement and eight-level upward
departure. Accordingly, the Court sentenced Shedrick to 96
months’ incarceration to be followed by three years of
supervised release.

       Shedrick was appointed counsel by the District Court for
purposes of an appeal. On August 18, 2003 (approximately six
months after sentencing), counsel filed a motion for
enlargement of time to submit a notice of appeal nunc pro tunc.

   3
    Application of both the four-level enhancement and eight-
level departure yielded a Guidelines range of 87 to 108 months.

                               11
The District Court denied the motion on August 27, 2003, and
our Court dismissed the appeal as untimely on November 25,
2003. Shedrick (through counsel) proceeded to file a 28 U.S.C.
§ 2255 habeas corpus petition in the District Court, which was
denied. He petitioned pro se our Court for a certificate of
appealability, which was granted for two issues: “whether
counsel was ineffective for failing to advise [Shedrick] of a
possible upward departure at sentencing; and whether counsel
was ineffective for filing an untimely appeal.” 4 Before we reach
these issues, however, we address the Government’s
jurisdictional contention.

III.       Jurisdiction

       According to the Government, the appeal and collateral
attack waiver contained in Shedrick’s written plea agreement
strips our jurisdiction. We disagree. In United States v.
Khattak, we joined the courts of appeals for ten other circuits
and held that “[w]aivers of appeal, if entered into knowingly and
voluntarily, are valid, unless they work a miscarriage of justice.”
273 F.3d 557, 563 (3d Cir. 2001).5 If a waiver is valid, “we


       4
    We also appointed Shedrick new counsel to pursue this
appeal.
       5
     Our decision in Khattak leaves the miscarriage-of-justice
determination open-ended, depending on various factors
identified in United States v. Teeter, 257 F.3d 14, 25–26 (1st

                                12
have no jurisdiction to consider the merits of [an] appeal.” Id.
 However, “a federal court always has jurisdiction to determine
its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628
(2002); see Rosado v. Wyman, 397 U.S. 397, 403 n.2 (1970)
(same). Thus, we have jurisdiction to examine the waiver
provision of Shedrick’s plea agreement to determine its validity
and, even if valid, what its terms do and do not allow.

       On initial review, it does appear that Shedrick expressly
waived his right to appeal and collaterally attack his sentence in
paragraph 10 of the plea agreement. However, the agreement
goes on to state that an appeal is preserved if any of three
conditions occurs. They are, to repeat, (1) a Government appeal,
(2) a sentence exceeding the statutory maximum, or (3) an
erroneous upward departure from the otherwise applicable
Sentencing Guidelines range.




Cir. 2001), e.g., how clear and grave an error existed, the effect
of that error on the parties, and the extent to which the defendant
acquiesced in the error. Khattak, 273 F.3d at 563. We noted,
however, that the Seventh Circuit Court of Appeals specifically
held that ineffective assistance of counsel invalidates waiver-of-
appeal provisions. Id. at 562 (citing United States v. Joiner, 183
F.3d 635, 645 (7th Cir. 1999)); see also Teeter, 257 F.3d at 25
n.9; United States v. Hernandez, 242 F.3d 110, 113–14 (2d Cir.
2001); United States v. Jemison, 237 F.3d 911, 916 n.8 (7th Cir.
2001).

                                13
        It is undisputed that the first two predicates do not apply
here; the Government did not appeal, and Shedrick’s sentence
of 96 months’ imprisonment does not exceed the statutory
maximum of ten years. Shedrick maintains, however, that the
third condition applies, he is entitled to seek a collateral review,
and we have jurisdiction over appeals denying § 2255 petitions.
Specifically, he argues, inter alia, that he was denied the right
to appeal the District Court’s erroneous upward departure from
his otherwise applicable Guidelines range.6

        The Government, on the other hand, claims that Shedrick
“is not arguing that the Court erroneously granted an upward
departure, but merely is arguing that counsel was ineffective for
(1) allegedly not informing him that the potential for an upward
departure existed.” Gov’t Br. at 28. We disagree here as well.
At its essence, Shedrick’s argument is that, as a result of trial

  6
   Shedrick’s brief mistakenly lumps together his enhancement
and his upward departure. An “enhancement” is an adjustment
to the base offense level as specifically provided by the
Guidelines, whereas an “upward departure” is a discretionary
adjustment to the Guidelines range once calculated. After
United States v. Booker, 543 U.S. 220 (2005), the difference is
now represented in the distinction between steps one and two as
set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.
2006). While Shedrick has a right to appeal the District Court’s
upward departure under his plea waiver, the literal words of that
waiver make clear that he has no concomitant right to appeal an
upward enhancement.

                                14
counsel’s deficient performance, he failed to appeal timely the
District Court’s upward departure, which he was entitled to
appeal under the express terms of the plea agreement waiver.
Enforcing a collateral attack waiver where constitutionally
deficient lawyering prevented him from a direct appeal
permitted by the waiver would result in a miscarriage of justice.
Thus, we have jurisdiction to consider any ineffective-
assistance-of-counsel issue.

IV.    Merits

       A. Ineffectiveness of Counsel for Failure to Advise

          Shedrick first argues that he received ineffective
assistance of counsel during his plea process as a result of
counsel’s failure to advise him about, inter alia, a potential
upward departure at sentencing. According to Shedrick, a
“fundamental consideration for [him] in determining whether
. . . to accept the guilty plea was the length of sentence he could
expect to receive.”

       Under the two-part test of Strickland v. Washington, 466
U.S. 668, 687 (1984), Shedrick must demonstrate that his
attorney’s performance was deficient and that he was prejudiced
by the deficiency. That is, he must prove that counsel’s
performance “fell below an objective standard of
reasonableness,” id. at 688, and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the

                                15
result of the proceeding would have been different.” Id. at 694.

       Shedrick cannot satisfy these requirements. Indeed, we
have long held that an erroneous sentencing prediction by
counsel is not ineffective assistance of counsel where, as here,
an adequate plea hearing was conducted. See, e.g., United
States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (counsel not
ineffective for allegedly promising defendant a sentence of “no
more than 71 months” where defendant was advised in open-
court colloquy of potential maximum sentence and there were
no other promises regarding sentence); United States v. Mustafa,
238 F.3d 485, 492 (3d Cir. 2001) (“[A]ny alleged
misrepresentations that [defendant’s] former counsel may have
made regarding sentencing calculations were dispelled when
[defendant] was informed in open court that there was no
guarantee as to sentence, and that the court could sentence him
to the maximum.”); Masciola v. United States, 469 F.2d 1057,
1059 (3d Cir. 1972) (per curiam) (holding that “[a]n erroneous
prediction of a sentence by defendant’s counsel does not render
a guilty plea involuntary” where record demonstrates that a
proper plea colloquy took place during which defendant
acknowledged that he was aware of his maximum potential
sentence). As stated in Mustafa,

       [w]e recognize that the maximum sentence
       authorized by law is often so extraordinarily long
       that few defendants other than “career criminals”
       plead guilty with the expectation that the

                              16
       maximum sentence applies to them. However, all
       that the law requires is that the defendant be
       informed of his/her exposure in pleading guilty.
       The law does not require that a defendant be
       given a reasonably accurate “best guess” as to
       what his/her actual sentence will be; nor could it,
       given the vagaries and variables of each
       defendant’s circumstances and offending
       behavior.

238 F.3d at 492 n.5.

       This case falls squarely within well-established
precedent: defense counsel’s conjectures to his client about
sentencing are irrelevant where the written plea agreement and
in-court guilty plea colloquy clearly establish the defendant’s
maximum potential exposure and the sentencing court’s
discretion. Shedrick’s written, signed agreement stated that (1)
he faced a maximum potential sentence of ten years’
incarceration; (2) the parties were free to argue any other
sentencing issues (explicitly including departures); (3) the
District Court retained ultimate discretion over the sentence; and
(4) there were no other agreements or promises regarding
Shedrick’s potential sentence.

        The District Court repeated these facts in open court,
starting the guilty plea colloquy by confirming with Shedrick
that

                               17
       most importantly, although the plea agreement
       states all of the agreements and understandings
       that exist [among] the defendant, defense counsel,
       and the Government, it does not recommend a set
       term of incarceration as binding upon this Court.
       Ultimately, the appropriate sentence would be left
       to the exercise of the Court’s discretion based
       upon information presented by both sides and
       based upon a review of the Sentencing
       Guidelines.

It then confirmed that Shedrick (1) had read, signed and fully
understood the plea agreement, (2) understood that there were
no other promises regarding his potential sentence, and (3) had
admitted the facts of the crime. The Court further advised
Shedrick that the maximum potential sentence was ten years’
incarceration and that it retained full discretion over the ultimate
sentence.

       Here, any erroneous sentencing information provided by
defense counsel was corrected by the written plea agreement and
the detailed in-court plea colloquy, both of which accurately
stated Shedrick’s potential sentence. Given this record, it is
inconceivable that Shedrick did not know he potentially faced
a maximum ten-year prison term. In fact, his allegations before
our panel are flatly inconsistent with his written, signed plea
agreement as well as his sworn, in-court answers during his plea
colloquy. Accordingly, the District Court correctly denied

                                18
Shedrick’s § 2255 motion as to his claim that counsel was
ineffective for failing to advise him of the potential for an
enhancement or upward departure.7


    7
      With regard to his failure-to-advise argument, Shedrick
relies heavily on one case—Meyers v. Gillis, 142 F.3d 664 (3d
Cir. 1998)—to advance his claim that bad sentencing
information provided by a defense lawyer equals ineffective
assistance of counsel. Meyers involved a habeas proceeding
from a state court guilty plea. The defendant had pled guilty to
second degree murder, which carried a mandatory life sentence
with no chance of parole. Nonetheless, the defendant was
misinformed by counsel that he would be eligible for parole in
seven years. At his guilty plea, the defendant was repeatedly
informed that he would become eligible for parole. Incredibly,
that advice was never corrected by the prosecutor or the state
trial court. We held that Meyer’s counsel was ineffective and
reversed his life sentence.
        Meyers is readily distinguishable from the case before us.
The former involved review of a state court proceeding lacking
a detailed guilty plea agreement and a Rule 11 guilty plea
colloquy. More importantly, the trial court in Meyers failed to
correct the erroneous sentencing information provided on the
record by defense counsel. In sharp contrast, the District Court
here corrected any alleged misperception by Shedrick about his
potential sentence by accurately informing him that his
maximum prison sentence was ten years and that the Court had
the discretion to sentence him up to that maximum. See
Scarbrough v. Johnson, 300 F.3d 302, 303–04, 306 (3d Cir.
2002) (distinguishing Meyers and finding no error where

                               19
       B. Ineffectiveness of Counsel for Failure to Appeal

        Shedrick’s second contention is that his then-counsel was
ineffective for failing to file a timely appeal in this case. In
resolving this claim, we are guided by the Supreme Court’s
decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000). There,
the Court addressed whether counsel may be found deficient for
failing to file a notice of appeal absent specific instruction from
the defendant not to do so. Because the question concerned
whether counsel’s representation was constitutionally defective,
the Court held that the two-part Strickland test governed its
inquiry. Id. at 476–77. Applying that standard to the particular
facts before it, the Court held that “counsel has a constitutionally
imposed duty to consult with the defendant about an appeal
when there is reason to think either (1) that a rational defendant
would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id. at 480. The Court further
explained that it “employ[ed] the term ‘consult’ to convey a
specific meaning—advising the defendant about the advantages
and disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant’s wishes.” Id. at 478.


defense counsel misinformed defendant that he was eligible for
parole but state court repeatedly and correctly informed
defendant that his penalty was an “automatic life sentence” with
no chance of parole).

                                20
Additionally, the Court instructed that courts undertaking this
inquiry, as with all ineffective assistance claims, “take into
account all the information counsel knew or should have
known.” Id. at 480 (citing Strickland, 466 U.S. at 690).

       With respect to Strickland’s prejudice prong, the Court
held that the harmless error inquiry applied and that relief could
not be granted unless the defendant “demonstrate[s] that there
is a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have
timely appealed.” Id. at 484. The Court did not identify any
determinative factors in this regard, but did stress that “evidence
that there were non-frivolous grounds for appeal or that the
defendant at issue promptly expressed a desire to appeal will
often be highly relevant.” Id. at 485.

       A review of the record reveals that Shedrick “reasonably
demonstrated to counsel that he was interested in appealing” by
vehemently contesting the factual issues that led to his
enhancement and upward departure throughout the District
Court proceedings. See Gov’t Br. at 18 (acknowledging that
Shedrick “hotly contested” the factual issues leading to his
enhancement and upward departure both prior to and during his
sentencing proceedings); see also Appellant’s App. at 78–79
(demonstrating that Shedrick, during his plea colloquy and prior
to pleading guilty, specifically ensured that he was not
conceding any involvement in the van shooting incident or any
attempt to fire the weapon at police). In this context, Shedrick’s

                                21
counsel had “a constitutionally-imposed duty to consult with”
him concerning a possible appeal. Flores-Ortega, 528 U.S. at
480; see id. at 481 (“We expect that courts evaluating the
reasonableness of counsel’s performance using the inquiry we
have described will find, in the vast majority of cases, that
counsel had a duty to consult with the defendant about an
appeal.”).

         The Government argues that Shedrick “makes no
allegation that he ever directed counsel to [file an appeal].”
Gov’t Br. at 58. Indeed, Shedrick’s habeas counsel wrote in his
brief to our Court that “[t]he record does not indicate that [trial]
counsel had any discussion with [Shedrick] regarding an appeal.
It is also unclear whether [Shedrick] specifically asked [his trial
counsel] to file an appeal.” Appellant’s Br. at 17. We are
uncertain why such comments were made in light of Shedrick’s
explicit statement in a letter to the District Court, dated February
26, 2003 (before the appeal deadline had passed), that he had
asked his trial counsel to file an appeal on his behalf. In this
context, Shedrick’s trial counsel knew at least one of three
things—Shedrick asked that an appeal be filed, he likely would
want to appeal, or he was interested in appealing—and yet did
not file an appeal.

       There is no indication in the record that Shedrick’s
attorney consulted with him post-sentencing. Indeed, Shedrick
expressly stated in letters submitted to the District Court both
during and after that period that his trial counsel failed to

                                22
consult with him during the appeal period. Even if counsel did
so, there is little question he was deficient for failing to file an
appeal because Shedrick stated on the record that he wished to
appeal while that option was available. If counsel did not
consult with Shedrick during the appeal period, then he was
deficient under Roe-Ortega for not doing so. Under these
circumstances, it is not necessary for us to remand this case to
the District Court for a factual finding that counsel either did or
did not consult with Shedrick because counsel was deficient
either way.

        As it was ineffective assistance of counsel that prevented
Shedrick from timely appealing the upward departure—a
challenge permitted by his plea waiver—we hold that he is
entitled to a direct appeal challenging that departure. Because
it has been thoroughly briefed by counsel, we deem it
unnecessary to call for further briefing, and thus we turn our
attention to the merits of the sentencing.8


  8
    For those concerned that Shedrick gets to appeal because of
a technicality that will prove fruitless (see subsection “C”
below), we note that whether Shedrick has a substantial
likelihood of success on appeal is of no moment here; to satisfy
the prejudice prong of Strickland in this context, Shedrick must
merely establish that his appeal would have been non-frivolous.
Anders v. California, 386 U.S. 738, 744 (1967) (explaining that
an appeal on a matter of law is frivolous only where “[none] of
the legal points [is] arguable on their merits”); Deutsch v. United

                                23
       C. Upward Departure

        As explained above, Shedrick received an eight-level
upward departure under U.S. Sentencing Guidelines Manual §
5K2.6 (stating that “[i]f a weapon or dangerous instrumentality
was used or possessed in the commission of the offense[,] the
court may increase the sentence above the authorized guideline
range”) for firing a gun at an occupied van. Relying on United
States v. Booker, 543 U.S. 220 (2005), he argues that he is
entitled to re-sentencing because the “District Court exceeded its


States, 67 F.3d 1080, 1085–86 (3d Cir. 1995) (defining
frivolousness in a 28 U.S.C. § 1915(d) case as “of little or no
weight, value, or importance; paltry; trumpery; not worthy of
serious attention; having no reasonable ground or purpose”); see
also Robert G. Bone, Modeling Frivolous Suits, 145 U. Pa. L.
Rev. 519, 530, 533 (1997) (rejecting “low-probability” as a
definition of frivolous litigation); Charles M. Yablon, The Good,
the Bad, and the Frivolous Case: An Essay on Probability and
Rule 11, 44 UCLA L. Rev. 65, 67 (1996) (arguing that non-
frivolous cases are “long shots that didn’t pan out, rather than
baseless claims that should never have been brought”). Though
we accept Shedrick’s appeal and rule against him on the merits,
his arguments (as noted below) meet this minimal standard.
Moreover, as the Court explained in Flores-Ortega, 528 U.S. at
486, “it [would be] unfair to require an indigent, perhaps pro se,
defendant to demonstrate that his hypothetical appeal might
have had merit before any advocate has ever reviewed the record
in his case in search of potentially meritorious grounds for
appeal.”

                               24
authority, as limited by the Sixth Amendment, by enhancing
[his] offense level without the requisite jury determination” and
without applying a reasonable-doubt standard. Appellant’s Br.
at 18.9

       The question whether a jury needed to find the facts that
formed the basis for Shedrick’s eight-level departure beyond a
reasonable doubt is a question of law we review de novo.
United States v. Williams, 235 F.3d 858, 861 (3d Cir. 2000).
The District Court’s factual findings are reviewed for clear
error. United States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999).

        In Booker, the Supreme Court held that facts relevant to
the now-advisory Guidelines do not implicate the constitutional
right to trial by jury so long as the sentence does not exceed the
statutory maximum set by the United States Code (in our case,
ten years). 543 U.S. at 259. Thus, the finding of fact at issue
here need not have been submitted to a jury. Moreover, our
Court has expressly stated that “[a]s before Booker, the standard
of proof under the guidelines for sentencing facts continues to



    9
      It does not appear that Shedrick makes the independent
argument (rooted solely in the Fifth Amendment) that, if not the
jury, then the Judge should have found the enhancement beyond
a reasonable doubt. Our analysis of such a claim, however,
would mirror what already is set out here. See United States v.
Grier, No. 05-1698, ___ F.3d ___, 2007 WL 315102, at *1 (3d
Cir. Feb. 5, 2007).

                               25
be preponderance of the evidence.” United States v. Cooper,
437 F.3d 324, 330 (3d Cir. 2006). As such, the District Court’s
application of the preponderance-of-the-evidence standard
comports with the Sixth Amendment under current case law.
Id.; see also Grier, 2007 WL 315102, at *1–8 (explaining how
Booker’s remedial opinion facilitates this conclusion).

       The evidence presented at the sentencing hearing
supports the conclusion that Shedrick fired at the van occupied
by Nguyen and Edwards. Although Nguyen misidentified the
color of Shedrick’s shirt, he testified confidently that Shedrick
was the individual who had shot in his direction. Given
Shedrick’s proximity to Nguyen at the time of the alleged
shooting, his concession that he was in possession of a gun
when the shooting occurred, and the District Court’s ruling that
Nguyen’s testimony was credible, we cannot conclude that the
Court’s finding that Shedrick had shot at the van was clearly
erroneous. Thus, we affirm Shedrick’s sentence.

V.     Conclusion

       For the reasons explained above, we have jurisdiction
over this appeal relating to ineffectiveness-of-counsel claims.
We proceed to affirm the District Court’s denial of Shedrick’s
§ 2255 petition concerning the claim that his counsel was
ineffective for failing to advise him as to sentencing matters.
However, Shedrick has demonstrated that his trial counsel was
ineffective under Roe-Ortega for failing to afford Shedrick his


                               26
appeal rights. We thus reverse the Court’s denial of Shedrick’s
§ 2255 petition on this claim. Because the issue is fully briefed,
we consider the merits of Shedrick’s claim of error relating to
the upward departure of his sentence. That claim we reject, and
thus we affirm his sentence.




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