                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-25-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1455




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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 03-1455
                                 ________________

                          UNITED STATES OF AMERICA

                                          v.

                          RONALD ANTHONY DOMIAN
                                  a/k/a Ron,

                                               Ronald Domian, Appellant.

                     ____________________________________

                   On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                           (D.C. Crim. No. 02-cr-00015-7E)
                   District Judge: Honorable Maurice B. Cohill, Jr.
                            __________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 19, 2003

            Before: ROTH, MCKEE AND CUDAHY, CIRCUIT JUDGES*

                               (Filed March 25, 2004)

                                 _________________

                                     OPINION
                                 _________________




* Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
ROTH, CIRCUIT JUDGE.

       Appellant Ronald Anthony Domian appeals from a judgment of the District Court

for the Western District of Pennsylvania entered on February 4, 2003. Defense counsel

has filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386

U.S. 738 (1967). Domian has filed a pro se brief in support of his appeal following being

advised of the opportunity to do so by this Court, and he also has filed a motion for

appointment of new counsel.

       A grand jury sitting in the Western District of Pennsylvania handed down an 18

count indictment against 23 defendants, three counts of which were directed at Domian,

including conspiracy to possess and distribute 5 kilograms of cocaine in violation of 21

U.S.C. §§ 841 and 846 (Count One), and two counts for using a telephone to facilitate the

conspiracy in violation of 21 U.S.C. § 843(b) (Counts Nine and Ten). Domian pleaded

guilty to Count One; Counts Nine and Ten were dismissed. The parties stipulated at the

change of plea hearing that Domian was responsible for between 500 grams and 2

kilograms of cocaine. In addition, Domian answered “yes” when the court asked whether

he had ample opportunity to discuss the case with counsel, and whether he was satisfied

with the job counsel had done for him.

       Two months after pleading guilty to Count One, but prior to sentencing, Domian

wrote a six-page letter to the District Court, seeking modification of his pretrial detention

and appointment of new counsel for sentencing. In the alternative he asked to be given



                                              2
the right to speak on his own behalf. Domian expressed concern in the motion that

counsel would not pursue to his satisfaction his argument that he was merely an addict

selling cocaine to offset the cost of his addiction, rather than a major distributor of drugs.

The District Court denied the requests for modification of detention and appointment of

new counsel.

        At sentencing the District Court determined that Domian had an offense level of

23 and a criminal history category of III, resulting in a guideline range of 57 to 71

months. 1 Domian received two additional criminal history points because he was on

probation at the time of the offense. He received a third additional criminal history point

for committing an offense while on release from a halfway house. The court sentenced

Domain to a term of 64 months imprisonment to be followed by 4 years of supervised

release. Domian appeals.

        We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. When

evaluating the merits of counsel's motion to withdraw, our inquiry is twofold. We must

evaluate (1) whether counsel's brief adequately fulfills the Anders requirements, and (2)

whether an independent review of the record presents any non-frivolous issues. See

United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). Under Anders, if, after a

conscientious examination of the case on appeal, court-appointed counsel "finds his case

to be wholly frivolous ... he should so advise the court and request permission to



   1
       The court appears to have misstated the range at 60 to 71 months.

                                              3
withdraw." 386 U.S. at 744. The request must be accompanied by "a brief referring to

anything in the record that might arguably support the appeal." Id. The brief must (1)

"satisfy the court that counsel has thoroughly examined the record in search of appealable

issues," Youla, 241 F.3d at 300; (2) identify issues “arguably supporting the appeal,” see

Smith v. Robbins, 528 U.S. 259, 285 (2000); and (3) “explain why the issues are

frivolous,” Youla, 241 F.3d at 300.

       Counsel identifies the following separate and distinct issues as arguably supporting

an appeal: (1) whether the plea comported with controlling constitutional and statutory

standards, (2) whether the District Court properly refused to adjust the offense level

pursuant to U.S.S.G. § 3B1.2 to reflect that Domian was a minimal or minor participant in

the offense, (3) whether the District Court properly found as a matter of fact that Domian

was on probation at the time of the offense, and (4) whether the District Court properly

refused to adjust the criminal history level pursuant to U.S.S.G. § 4A1.3 because it

overstated the seriousness of Domian’s criminal history.

       Although we generally rely on the Anders brief to identify the issues raised for

appeal, we look at the appellant’s pro se brief as well. See Youla, 241 F.3d at 301.

Domian contends in his pro se brief that (1) the District Court erred in refusing a

downward adjustment for a less culpable role without considering the factors mandated

by United States v. Isaza-Zapata, 148 F.3d 236 (3d Cir. 1998), especially the third factor;

(2) the District Court erred in refusing to appoint new counsel without making the



                                             4
necessary inquiries required by United States v. Welty, 674 F.2d 185 (3d Cir. 1982); and

(3) counsel provided ineffective assistance on appeal by filing an Anders brief because

these issues are not frivolous.

       We conclude that counsel’s Anders brief is inadequate based upon our independent

examination of the record. Both counsel and Domian noted that a minor participation

adjustment pursuant to U.S.S.G. § 3B1.2 was an important issue at sentencing. Domian

contends that the District Court erred by not considering the Isaza-Zapata factors and by

not making certain required findings, but we conclude that the issue arises in this appeal

because counsel inadequately requested a 2-level adjustment for a minor role in the

offense. The appeal thus is not wholly frivolous. However, we will grant counsel’s

motion to withdraw, and we will not appoint new counsel, because the appeal, although

not wholly frivolous, is nonetheless lacking in merit. Moreover, Domian has

demonstrated that he is capable of, and desires to, argue his own case in the future to the

extent that there are any further appeals.2

       Importantly, we review only for clear error where a district court's decision to deny

an adjustment for minor participation rests on a factual determination, as it did here. See



   2
       Third Circuit LAR 109.2(a) provides that if the court finds no arguable merit it will
grant the motion to withdraw, while if the court finds arguable merit, it will discharge
counsel and appoint substitute counsel. The rule does not provide for the circumstance in
which the court makes a determination that an appeal is not wholly frivolous, but is
nonetheless lacking in merit and does not require additional briefing. Cf. United States v.
Marvin, 211 F.3d 778, 782 n.4 (3d Cir. 2000) (discussing circumstance not contemplated
by rule).

                                              5
Isaza-Zapata, 148 F.3d at 237. Under § 3B1.2 of the sentencing guidelines, a district

court is authorized to decrease a defendant’s offense level by four levels if the defendant

was a “minimal participant” in the crime, by two levels if he was a “minor” participant,

and by three levels if he falls somewhere in between. A minimal participant is one who is

plainly among the least culpable of those involved in the offense, while a minor

participant is one who is less culpable than most other participants, but whose role could

not be described as minimal. U.S.S.G. § 3B1.2, cmt. n.4-5 (2003). The District Court’s

determination that Domian was not entitled to either a 3 or 4-level reduction was not

clearly erroneous, see United States v. Haut, 107 F.3d 213, 216 (3d Cir. 1997), and any

contention to the contrary lacks arguable merit.

       In evaluating whether the defendant’s role was minor, district courts should

consider “the nature of the defendant's relationship to the other participants, the

importance of the defendant's actions to the success of the venture, and the defendant's

awareness of the nature and scope of the criminal enterprise." Isaza-Zapata, 148 F.3d at

239 (citing United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991)). 3 The District

Court concluded that Domian was not entitled to a 2-level reduction for minor

participation under § 3B1.2 after comparing his culpability to that of the other 22

defendants in the conspiracy. Domian was not at the top certainly, but he had dealt

between 500 grams and 2 kilograms of cocaine during the life of the conspiracy, a figure

   3
    These factors originated in this circuit in Headley and are also referred to as the
Headley factors. Because Domian refers to them as the Isaza-Zapata factors we will also.

                                              6
that put him in the middle of the other dealers involved in the conspiracy. Moreover,

Domian was buying and selling approximately $1,000 worth of cocaine a week during the

life of the conspiracy, which the court concluded was sufficient to establish that his role

was not minor.

       Domian argues that the District Court did not specifically refer to the Isaza-Zapata

factors, and in particular, did not make any findings concerning the third factor, his lack

of knowledge of the scope of the conspiracy. Instead, the court placed too much

emphasis on the quantity of drugs attributable to him. The defendant, however, “bears the

burden of demonstrating that other participants were involved and that, under the [factors]

and the facts of his particular case, the minor role adjustment should apply.” 148 F.3d at

240 (citing United States v. Price, 13 F.3d 711, 735 (3d Cir. 1994)). Defense counsel did

not list the Isaza-Zapata factors in his sentencing memorandum, did not ask the court to

make a finding concerning Domian’s awareness of the scope of the conspiracy, nor did

counsel appropriately establish Domian’s lack of knowledge through testimony. To some

extent this is true with respect to the second factor – the importance of the defendant's

actions to the success of the venture – as well.

       In fairness to counsel, he actually requested an adjustment under § 3B1.2, and the

arguments he made showed some awareness of the appropriate considerations. In

objections to the presentence report, counsel argued that Domian was a minimal




                                              7
participant in an extensive conspiracy and entitled to a 4-level downward departure.4 At

sentencing counsel argued that Domian was unaware of the scope of the conspiracy, as

follows: “He didn’t know that Mr. Licato and others were purchasing real estate, that they

had a money laundering business going on with check cashing, nor was he aware of the

source of the cocaine. His role relative to that of others in the conspiracy, especially

those that were in the higher up levels indicates that he is not – he should be afforded at

least a minor role reduction.”

       Describing Domian’s role as minimal or minor, however, is insufficient to raise the

Isaza-Zapata factors and thus the § 3B1.2 minor participation issue. As a general matter,

counsel cannot properly invoke this provision “merely by reciting to the court a list of

mitigating facts” where, as in the case of § 3B1.2, a district court is required “to make

empirical judgments and where factual subtleties can make a real difference.” United

States v. Soto, 132 F.3d 56, 58 (D.C. Cir. 1997) (internal quotations removed). Whether



   4
      Counsel stated: “Investigation by the undersigned counsel for the defendant revealed
the existence of a complex coordinated scheme involving interstate and international drug
smuggling, exchange of hundreds of thousands of dollars, a complex communication and
delivery network, operation of a check cashing business for the laundering of illegally
obtained funds, and the purchase of real property using funds derived from drug
transactions. Ronald Domian’s role ... was limited to that of a low level drug user. He
was an addict who purchased cocaine to satisfy his own chemical dependency,
occasionally reselling to others.... He was not aware of the scope and structure of the
enterprise, nor of the activities of the others involved in the conspiracy. He did not profit
financially from his involvement. There is no evidence that he had any knowledge or
understanding of the size of the illegal operation, nor the source of the cocaine, other than
that he had a source to fill his own needs as an addict.” (Position of Defendant W ith
Respect to Sentencing Factors, at 3-4.)

                                              8
Domain’s role was minor “depends on the particular facts of the case and how well

counsel marshals them,” id., and supports them through testimony. For example, Special

Agent Gorham of the Federal Bureau of Investigation coordinated the Erie Area Gang

Law Enforcement (EAGLE) Task Force and investigated the drug dealing activities of

Paul A. Licato, Jr. and Michael Colegrande. He could have been cross-examined on the

scope of the conspiracy. We note that Domian testified at sentencing that he and his

female friend used cocaine themselves and on some occasions sold small quantities to

others to help offset the cost, but this does little to establish that Domian had no

knowledge of the nature and scope of the conspiracy, because the District Court is not

required to “believe the defendant's own characterization that his role was minor.”

United States v. Rodriguez, 342 F.3d 296, 299 (3d Cir. 2003).

       We need not decide, however, whether the failure to adequately argue the Isaza-

Zapata factors and introduce evidence in support of an adjustment for minor participation

is substandard professional conduct, just as the failure altogether to request the departure

may be, see Headley, 923 F.2d at 1083-84, because Domian was not prejudiced by

counsel’s conduct at sentencing. There is no reasonable probability that, but for counsel's

arguable errors, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 694 (1984).5 A two-level adjustment for minor participation

   5
     Ineffective assistance of counsel claims generally are not entertained on direct
appeal. See United States v. Headley, 923 F.2d at 1083. The proper avenue for raising
such claims is through a collateral proceeding. Id. However, in certain limited cases, we
will permit a defendant to pursue the claim on direct appeal where the record is sufficient

                                              9
would have reduced the guideline range to 46 to 57 months, but Domian is not the sort of

person the minor participation provision covers. Even the least culpable member of a

conspiracy is not a minor participant if the extent of that member’s participation is not

minor. See United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001). Domian’s conduct

with respect to the conspiracy involved several contacts with a major figure in the

conspiracy from whom he received cocaine, without prepayment, and he, in turn, was

supplying cocaine to other individuals. This is active, integral participation in the

conspiracy and renders Domian ineligible for a minor role adjustment even if he was

unaware of the complete scope of the conspiracy. Domian’s level of culpability in the

conspiracy was average, not substantially less so. U.S.S.G. § 3B1.2, cmt. n.3(A); Isaza-

Zapata, 148 F.3d at 238.

       We thus do not find fault with the District Court’s determination that Domian was

not a minor participant even though the court made no findings with respect to his

awareness of the scope of the conspiracy. Haut, 107 F.3d at 218 (under clearly erroneous

standard finding of fact may be reversed only if it is completely devoid of credible

evidentiary basis). Moreover, the District Court’s comments indicate an awareness of the

other two Isaza-Zapata factors, even though they were not specifically mentioned. We

must necessarily conclude that, even if we were to find that counsel’s handling of the

request for a minor participation adjustment was substandard professional conduct,



and an evidentiary hearing to develop the facts is not needed. Id.

                                             10
Domian suffered no prejudice. Strickland, 466 U.S. at 694.

       The remaining issues lack any arguable merit and do not require extended

discussion. As to the first issue identified by counsel, the District Court informed

Domian of his constitutional rights and advised him that he was waiving those rights by

pleading guilty. The terms of the plea agreement were discussed and the government

outlined the evidence it would introduce at trial. The District Court advised Domian

about the minimum and maximum sentence he could receive and told him that he would

serve a term of supervised release. Domian was advised that his sentence would be

determined by the District Court and might be different from what either his lawyer or the

government predicted. Domian then admitted that he committed the offense with which

he was charged. The plea clearly comports with constitutional due process, see Parry v.

Rosemeyer, 64 F.3d 110, 113-14 (3d Cir. 1995), and Federal Rule of Criminal Procedure

11.

       As to the third issue identified by counsel, the District Court added two points to

Domian’s criminal history score based on a finding that he was on probation at the time

of the offense. Domian pleaded guilty in state court to harassment and was placed on

probation, which ended on August 9, 2001. The District Court received evidence on the

matter and found, as a matter of fact, that Domian engaged in drug transactions before his

probation ended, specifically in June 2001. The District Court’s finding of fact is

supported by the record and is not clear error. Haut, 107 F.3d at 218.



                                             11
       As to the fourth issue, we are without jurisdiction to review a district court’s

refusal to depart downward, unless that refusal resulted from the court’s erroneous belief

that it lacked authority to depart. See United States v. Stevens, 223 F.3d 239, 247 (3d Cir.

2000). Section 4A1.3 of the guidelines authorizes the court to depart downward if it

concludes that a defendant’s criminal history category significantly overstates the

seriousness of the defendant’s criminal history. We have carefully reviewed the transcript

of sentencing and conclude that the District Court knew that it had the authority pursuant

to § 4A1.3 to adjust the criminal history level if it overstated the seriousness of Domian’s

criminal history. The court heard argument on the issue, invited additional testimony, and

posed questions of counsel.

       As to the issues raised by Domian in his pro se brief, we conclude that the District

Court properly denied the post-guilty plea request for new counsel without making the

Welty inquiry, see United States v. Welty, 674 F.2d 185 (3d Cir. 1982), and that

Domian’s Sixth Amendment right to counsel was not violated. The Welty inquiry was

not required because the District Court was aware from Domian’s six-page letter why he

sought new counsel. Id. at 188. Moreover, the District Court did not abuse its discretion

in denying new counsel, because Domain did not show good cause, such as a conflict of

interest, a failure to prepare for the sentencing hearing, or a complete breakdown in

communication. See United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995).

       Counsel continued to represent Domian aggressively at the sentencing hearing,



                                             12
notwithstanding the shortcomings we have identified. We note in particular that Domian

did not raise a single objection to counsel’s conduct at the sentencing hearing or in his pro

se brief on appeal. We further conclude that Domian did not adequately assert his right of

self-representation, Faretta v. California, 422 U.S. 806 (1975), with a single statement in

a six-page letter that he wished to speak for himself. See United States v. Peppers, 302

F.3d 120, 132 & n.10 (3d Cir.), cert. denied, 537 U.S. 1062 (2002). Again, we note that

Domian did not request to proceed pro se at the sentencing hearing even when he was

permitted to address the court.

       Finally, we conclude that Domian was not prejudiced by the filing of the Anders

brief. Headley, 923 F.2d at 1083 (ineffective assistance of counsel claim may be decided

on direct appeal only where record is sufficient). Although we have identified an issue

we do not believe is frivolous, we have nonetheless found it lacking in merit. There is no

reasonable probability that, but for counsel’s Anders brief, the result of this appeal would

have been different. Strickland, 466 U.S. at 694.

       We will grant counsel's motion to withdraw and affirm the judgment of the District

Court. Domian’s motion for appointment of new counsel is denied.
