                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-24-2003

USA v. Barnes
Precedential or Non-Precedential: Precedential

Docket 02-1002




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"USA v. Barnes" (2003). 2003 Decisions. Paper 679.
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                                  PRECEDENTIAL

                                            Filed March 24, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                  Nos. 02-1002 and 02-1592


                UNITED STATES OF AMERICA
                                  v.
                       WALTER BARNES,
                                        Appellant in No. 02-1002


                UNITED STATES OF AMERICA
                                  v.
                       WALTER BARNES,
                                        Appellant in No. 02-1592

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                 (D.C. Crim. No. 00-00060)
       Honorable Eduardo C. Robreno, District Judge

         Submitted under Third Circuit LAR 34.1(a)
                    February 28, 2003
     BEFORE: SCIRICA, GREENBERG, and GIBSON,*
                   Circuit Judges

                     (Filed: March 24, 2003)

* Honorable John R. Gibson, Senior Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
                             2


                      Mark D. Mungello
                      103 LaCosta Drive
                      Blackwood, NJ 08012
                        Attorney for Appellant
                      Patrick L. Meehan
                      United States Attorney
                      Laurie Magid
                      Deputy United States Attorney
                      for Policy and Appeals
                      Robert A. Zauzmer
                      Assistant United States Attorney
                      Senior Appellate Counsel
                      M. Taylor Aspinwall
                      Assistant United States Attorney
                      615 Chestnut Street, Suite 1250
                      Philadelphia, PA 19106
                        Attorneys for Appellee


                OPINION OF THE COURT

GREENBERG, Circuit Judge:
  These consolidated proceedings come on before this court
on appeals from a judgment of conviction and sentence
entered December 26, 2001, and from an order entered on
February 19, 2002, denying bail. We set forth the case’s
rather convoluted procedural history in detail as that
history caused us to question whether we have jurisdiction
and thus to request the parties’ views on that point. The
parties have stated their views, both urging that we have
jurisdiction. We independently have determined that we do
have jurisdiction and thus adjudicate the case on the
merits insofar as the issues raised are properly before us.
See United States v. Scarfo, 263 F.3d 80, 87 (3d Cir. 2001).
    The background of the case is as follows. Appellant
Walter Barnes was charged in a ten-count indictment with
filing false claims for refunds with the Internal Revenue
Service and with aiding and abetting the presentation of the
claims contrary to 18 U.S.C. §§ 287 and 2. The indictment
                              3


arose out of a scheme in which Barnes and Joseph
Johnson, who also was indicted but pleaded guilty and
testified at Barnes’ trial, cooperated in a scheme to prepare
and file false income tax returns for a fee, thereby obtaining
for the taxpayers refunds to which they were not entitled.
The scheme included making unjustified claims for
deductions for dependents on the taxpayers’ returns and
improperly claiming “Head of Household” instead of “Single”
filing status on certain returns. Barnes pleaded not guilty
to the indictment but was convicted on nine of the ten
counts at a jury trial.
   The Probation Office prepared a presentence report and
neither party, though having the opportunity to do so,
objected to the proposed total offense level or any other
guideline calculation. Thus, the Probation Office’s
calculation of a total offense level of 18 which, with a
criminal history category of I, yielded a guideline range of
27 to 33 months, went unchallenged. The Probation Office
calculated the total offense level on the basis of tax offense
rather than fraud guidelines and included a 4-level increase
for Barnes’ leadership role under U.S.S.G. § 3B1.1(a). The
use of the tax guidelines resulted in a 2-level higher offense
level than the fraud guidelines would have yielded. The
district court sentenced Barnes on December 13, 2000, to
a 33-month custodial term to be followed by a three-year
term of supervised release. In addition, the court ordered
Barnes to pay restitution but we are not concerned with
that aspect of the sentence on this appeal. The judgment of
conviction and sentence was entered on January 3, 2001.
  Following the sentencing there was some confusion
regarding whether Barnes intended to appeal and, as a
result, his attorney did not file a notice of appeal for him.
Barnes, however, filed an untimely pro se notice of appeal
on March 6, 2001, but we dismissed the appeal on July 11,
2001.
   After Barnes filed his notice of appeal but before we
dismissed the appeal, he filed a motion on May 23, 2001,
under 28 U.S.C. § 2255 in the district court seeking relief
on the theory that his attorney had been ineffective for
failing to file a notice of appeal. On May 25, 2001, the
district court, as required by United States v. Miller, 197
                               4


F.3d 644, 652 (3d Cir. 1999), entered an order that advised
Barnes of the necessity to include all of his claims for relief
in his section 2255 petition because of the statutory
impediment in section 2255 to filing a second or successive
petition under that section. In response, Barnes filed a
notice on June 22, 2001, that he wished to withdraw his
original motion. The district court granted Barnes’ motion
and on July 2, 2001, entered an order dismissing the
section 2255 motion without prejudice.
   On August 30, 2001, Barnes filed a new section 2255
motion which, in view of the order dismissing his original
motion without prejudice, was a substituted rather than a
second or successive motion. The substituted motion
sought relief on three bases by reason of Barnes’ trial
attorney having been ineffective: (1) for failing to appeal; (2)
for not objecting to the use of tax rather than fraud
guidelines in the calculation of his offense level; and (3) for
failing to object to the 4-level offense level increase for a
leadership role. The district court appointed a new attorney
to represent Barnes on the substituted section 2255 motion
but Barnes nevertheless filed a pro se brief raising a fourth
point, i.e., that he was entitled to a downward sentencing
departure because the Bureau of Prisons was not providing
him with necessary medical care.
  The district court held a hearing on Barnes’ motion and
granted it on December 21, 2001, but only to the extent
that the court vacated the judgment of conviction and
sentence entered on January 3, 2001, and entered an
identical judgment of conviction and sentence on December
26, 2001. The December 21, 2001 order further provided
that “All other issues will be taken under advisement.” This
substitution of a new but identical judgment in the place of
the original judgment permitted Barnes to file a timely
notice of appeal. In fact, Barnes appealed on December 31,
2001, but only from the substituted judgment of conviction
and sentence entered on December 26, 2001. This appeal
was docketed as No. 02-1002.
   Subsequently, on January 17, 2002, Barnes moved for
bail pending appeal but on February 19, 2002, the district
court denied that motion. On February 27, 2002, Barnes
filed a timely notice of appeal, docketed as No. 02-1592,
                              5


from the February 19, 2002 order denying bail. We have
consolidated the two appeals and adjudicate both in this
opinion.
  When we considered the foregoing procedural history we
were concerned because it was apparent that the district
court largely had not addressed the issues Barnes raised in
his substituted section 2255 motion. It thus occurred to us
that the matter might not be final in all respects in the
district court. We are satisfied, however, that we have
jurisdiction over the appeal from the judgment of conviction
and sentence in No. 02-1002 as the partially pending
substituted section 2255 motion does not make the
judgment of conviction and sentence any less final and
appealable than it otherwise would be.
   Ordinarily a section 2255 motion is filed after a
defendant’s completion of unsuccessful direct appellate
proceedings following the filing of an appeal from a
judgment of conviction and sentence. The district court, by
holding all of Barnes’ contentions under advisement except
his contention that his attorney had been ineffective for not
appealing, and thus allowing an appeal from the judgment
of conviction and sentence, simply replicated that
procedure as far as possible. Furthermore, the only reasons
that there is a jurisdictional question at all are that Barnes’
original attorney failed to file a timely appeal and, in light
of the restrictions on the filing of second or successive
petitions under section 2255, Barnes, contrary to his
original intention, was constrained to raise all of his section
2255 issues in his first motion under that rule. We think
that for purposes of finality and appealability we should
treat the direct proceedings leading to the conviction as
discrete from the section 2255 proceedings. That said, we
also have jurisdiction over the appeal from the denial of bail
pending appeal. See 18 U.S.C. § 3145(c); 28 U.S.C. § 1291.
  In Barnes’ appeal from the judgment of conviction and
sentence he raises the following three contentions:
    I. [He] suffered ineffective assistance of counsel at the
    time of sentencing when his attorney failed to object to
    the court’s application of the tax guidelines found at
    U.S.S.G. sections 2T1.4 and 2T4.1 instead of the
    guidelines called for by U.S.S.G. section 2F1.1.
                              6


    II. [H]is attorney was ineffective for failing to object to
    the lower court’s determination that [he] was a leader
    or organizer under U.S.S.G. section 3B1.1.
    III. [H]is attorney was ineffective for failing to make a
    motion for a departure on the basis of Mr. Barnes’ poor
    physical condition pursuant to U.S.S.G. section 5H1.4.
Br. at i. While the government suggests that we recast the
first two of these contentions and consider them
substantively on a plain error standard not dependent on
an ineffective assistance of counsel argument, we decline to
do so as it seems to us that Barnes should be able to
present his arguments in the way he chooses.
  Nevertheless Barnes’ problem with presenting the
foregoing issues on his appeal from the judgment of
conviction and sentence is obvious. We repeatedly have
emphasized that we ordinarily do not entertain claims
predicated on an attorney’s alleged ineffectiveness on direct
appeal but rather reserve them for disposition in section
2255 proceedings. See, e.g., United States v. Jake, 281 F.3d
123, 132 n.7 (3d Cir. 2002).
   We have recognized, however, a narrow exception to this
practice when the record establishes a basis for the review
of the claims. See United States v. Headley, 923 F.2d 1079,
1083 (3d Cir. 1991). Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 2064 (1984), supplies a basis to
review Barnes’ first claim under that exception. In
Strickland the Court made clear that an ineffective
assistance of counsel claim to be successful must
demonstrate that the attorney’s performance prejudiced the
defendant. Clearly, an attorney’s performance cannot have
prejudiced a defendant if his alleged ineffectiveness was the
failure to advance an unmeritorious claim that could not
have been successful had it been advanced. See
Government of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d
Cir. 1989).
  We are satisfied that Barnes’ first claim is not
meritorious. Barnes points out that U.S.S.G. § 2F1.1(a), as
applicable in this case, provides that the base offense level
for a conviction under 18 U.S.C. § 287 is 6 and under
U.S.S.G. § 2F1.1(b), as applicable here, inasmuch as the
                                    7


loss was between $20,000 and $40,000, his offense level
would be increased by 4, giving an adjusted base offense
level of 10. However, under U.S.S.G. § 2T1.4, which the
court used here in calculating Barnes’ offense level by
reference to U.S.S.G. § 2T4.1, the adjusted base offense
level was 12.
   Barnes predicates his argument on Appendix A -
Statutory to the Sentencing Guidelines which indicates that
“[t]his index specifies the offense guideline section(s) in
Chapter Two (Offense Conduct) applicable to the statute of
conviction.” The appendix at the time of Barnes’ sentencing
made section 2F1.1 applicable for a section 287 offense. He
then observes that the appendix text continues: “[i]f more
than one guideline section is referenced for the particular
statute, use the guideline most appropriate for the offense
conduct charged in the count of which the defendant was
convicted.” He reasons from the foregoing that inasmuch as
section 287 referenced only section 2F1.1 when he was
sentenced then that section must be used.
  There is some force to Barnes’ argument. The problem
with it, however, is that it only gives part of the guidelines
picture for Application Note 14 to section 2F1.1, as
applicable here, makes clear that a different guideline
should be used if an “offense [is] more aptly covered by
another guideline.” Section 2T1.4 covers “Aiding, Assisting,
Procuring, Counseling, or Advising Tax Fraud” and thus
describes the offenses Barnes committed and is more apt
for use in sentencing here than section 2F1.1.1 See United
States v. Aragbaye, 234 F.3d 1101, 1104-06 (9th Cir.
2000). Accordingly, Barnes’ attorney cannot have been
ineffective for failing to contend that section 2F1.1 rather
than section 2T1.4 should have been applied in calculating
Barnes’ offense level as the court would have rejected that
contention.

1. Section 2F1.1 was deleted as of November 1, 2001. In Appendix A to
the guidelines section 287 now references U.S.S.G. § 2B1.1 which, like
section 2F1.1, provides for a base offense level of 6, subject to increases
depending on the amount of the loss. Application Note 11 to section
2B1.1, as amended in 2001, is similar to Application Note 14 to deleted
section 2F1.1.
                              8


  We, however, cannot reach the same result with respect
to Barnes’ two other claims charging that his attorney was
ineffective because the record does not establish a sufficient
basis for us to pass on them. The first of these two claims
challenges the 4-level increase for Barnes’ leadership role in
the offense. The government acknowledges that in
determining whether Barnes was an organizer or leader of
a criminal activity “that involved five or more participants,”
see U.S.S.G. § 3B1.1(a), the “presentence report swept too
broadly in considering every taxpayer a participant, without
a showing that each was aware of the criminal nature of
the returns.” Br. at 36 n.11. The government nevertheless
makes an analysis of the record in an attempt to
demonstrate that there were sufficient participants with
criminal knowledge so that section 3B1.1(a) was applicable
and urges that “there was substantial evidence in the
record supporting the four-level enhancement.” Br. at 40.
   We are satisfied that if any court should make the finding
of fact that the government urges is appropriate, it should
be the district court as that court imposes sentences.
Moreover, the mere circumstance that evidence could
support a finding does not mean that we should uphold a
finding that the district court never made or, as here, made
on an insufficient basis. The reality is that the district
court, quite understandably in view of the parties’ lack of
objection, indicated that it would “adopt the proposed
findings of fact contained in the presentence investigation
report as the findings of fact of this Court for purposes of
this sentencing.” App. at 30. Those findings were not
grounded properly in the record for, as the government
recognizes, the presentence report “swept too broadly.”
Consequently, we will not say that Barnes’ attorney’s failure
to object to the section 3B1.1(a) finding was not prejudicial
to Barnes as an objection to it may or may not have been
successful. In the circumstances, the district court should
consider the ineffectiveness of counsel argument on this
point in the section 2255 proceedings.
  We reach the same result with respect to Barnes’
argument that his attorney was ineffective for failure to
move for a departure on the basis of his poor physical
condition. The record does not permit us to make a
                                    9


determination on this point. Thus, the district court should
consider the argument in the section 2255 proceedings.
  Finally, we consider but reject Barnes’ argument that he
should have been granted bail pending appeal. In reaching
our conclusion we have not been unmindful that Barnes
already has served a large portion of his sentence.
Nevertheless, exercising plenary review, see United States v.
Messerlian, 793 F.2d 94, 95 (3d Cir. 1986); United States v.
Smith, 793 F.2d 85, 87 (3d Cir. 1986), we conclude that
inasmuch as we are affirming the judgment of conviction
and sentence we should affirm the order denying bail
pending appeal.2 Certainly it would be strange to grant bail
pending appeal at the precise time the appeal was failing.
See 18 U.S.C. § 3143(b)(B). We make our determination
with respect to bail without prejudice to Barnes seeking
bail from the district court in the pending section 2255
proceeding.3
  For the foregoing reasons we will affirm the judgment of
conviction and sentence entered December 26, 2001, and
the order denying bail entered February 19, 2002.

A True Copy:
        Teste:

                        Clerk of the United States Court of Appeals
                                    for the Third Circuit




2. Arguably the appeal in the bail appeal is moot in view of our
disposition of the main appeal. We are satisfied, however, that this is not
so because our opinion does not necessarily terminate Barnes’ direct
appellate proceedings as he may petition for rehearing or seek a writ of
certiorari from the United States Supreme Court.
3. We do not intend to imply that if Barnes seeks bail the court should
grant his application. Rather, we do not reach that question.
