                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-21-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4910




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Recommended Citation
"USA v. McElheney" (2008). 2008 Decisions. Paper 1554.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1554


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4910


                           UNITED STATES OF AMERICA

                                           v.

                               DANIEL McELHENEY,
                                            Appellant


                    On Appeal from the United States District Court
                            for the District of New Jersey
                           D.C. Criminal No. 04-cr-00682
                          (Honorable Joseph H. Rodriguez)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 17, 2008
          Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges.

                               (Filed February 21, 2008)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

       Daniel McElheney appeals his criminal sentence and conviction. We will affirm.1



   1
     McElheney’s attorney filed a brief under Anders v. California, 386 U.S. 738 (1967),
and a motion to withdraw as court-appointed counsel. McElheny filed a pro se brief with
this Court on November 1, 2006.
       McElheney pled guilty to a one-count information charging conspiracy to

distribute and to possess with intent to distribute more than 1.5 kilos of crystal

methamphetamine under 21 U.S.C. § 846. In exchange for his guilty plea, the

government agreed not to bring additional charges. Additionally, McElheney waived his

right to appeal the District Court’s determination of the offense level if found to be equal

to or less than 35, and the government likewise waived the right to appeal if the total

offense level was equal to or greater than 33. In the plea agreement, both parties agreed

the total offense level was 35.2 Defense counsel and the court discussed with McElheney

the proposed plea agreement, as well as his right to a jury trial, the risks associated with

trial and pleading, and the advisory nature of the sentencing guidelines. McElheney

entered his plea knowingly, intelligently, and voluntarily.

       The District Court agreed the total offense level was 35 with a corresponding

guideline range of 188 to 235 months. When given the chance to offer mitigating factors,

defense counsel argued McElheney’s need to pay for counsel in a separate pending

lawsuit spurred his participation in the drug conspiracy. The court sentenced McElheney

to 94 months, departing downward from the guideline minimum.

       Our review reveals defense counsel thoroughly considered all plausible bases for

appeal and set forth in the Anders brief why such issues were legally frivolous. Counsel




   2
    The base offense level was at least 38 with a three-level reduction for acceptance of
responsibility and for a timely plea of guilty.

                                              2
examined at length the guilty plea colloquy transcript, the sentencing transcript, the

Presentence Investigative Reports, and other documents. McElheney knowingly and

voluntarily entered into the guilty plea agreement, waiving his Constitutional rights.

McElheney acknowledged he understood the charges and essential elements to which he

pled guilty. The District Court’s sentence was half of the guideline minimum. Based on

our own examination of the record, we conclude that counsel satisfied the requirements of

Third Circuit Local Appellate Rule 109.2(a) under Anders.

       McElheney also submitted a brief, raising two issues: 1) ineffective assistance of

counsel, and 2) the total offense level should have been reduced under U.S.S.G. § 5K2.12

for “coercion and duress”. We do not ordinarily consider ineffective assistance claims on

direct review, as such claims are “best decided in the first instance in a collateral action.”

United States v. Thornton, 327 F.3d 268, 272 (3d Cir. 2003).

       Turning to McElheney’s second contention, under U.S.S.G. § 5K2.12 “[o]rdinarily

coercion will be sufficiently serious to warrant departure only when it involves a threat of

physical injury, substantial damage to property, or similar injury resulting from the

unlawful action of a third party . . . . [P]ersonal financial difficulties . . . do not warrant a

downward departure.” The “need” to pay defense counsel fees in a separate action does

not rise to the level of coercion or duress described by U.S.S.G. § 5K2.12.

       Accordingly, there are no non-frivolous arguments raised in this appeal.




                                                3
      For the foregoing reasons, we will affirm the judgment and sentence of the District

Court. Defense counsel’s motion to withdraw is granted.




                                           4
