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


8-16-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 99-1606




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Recommended Citation
"USA v. Mellot" (2002). 2002 Decisions. Paper 511.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/511


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                              NOT PRECEDENTIAL

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           No. 99-1606
                        __________________

                    UNITED STATES OF AMERICA

                                v.

                 LAWRENCE MELLOTT a/k/a TWISTED
            Lawrence Raymond (Ray) Mellot, Appellant
             _______________________________________

         On Appeal From the United States District Court
             For the Eastern District of Pennsylvania
                     (D.C. No. 98-cr-00291-5)
          District Judge: Honorable Clarence C. Newcomer
                 ________________________________

            Submitted Under Third Circuit LAR 34.1(a)
                          July 29, 2002
          Before: BECKER, Chief Judge, ROTH and RENDELL
                         Circuit Judges.

                     (Filed: August 16, 2002)
                     _______________________

                             OPINION
                     _______________________

BECKER, Chief Judge.
     Lawrence Mellot appeals from a judgment in a criminal case entered pursuant to
his plea of guilty to one count of conspiracy to distribute cocaine and methamphetamine.
Mellot’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 728 (1967),
representing that there are no non-frivolous issues for appeal. The brief refers to those
portions of the record that might arguably support an appeal and to the relevant law.
     The putative appellate issues all deal with the District Court’s sentence of Mellot
to a term of imprisonment of 84 months (Br. 17; Supp. App. 95a-96a). In imposing the
sentence, the court granted the government’s motion for departure from the Sentencing
Guidelines range pursuant to U.S.S.G. 5K1.1, filed as a result of Mellot’s cooperation.
In so doing, the Court imposed a term of imprisonment below the 92 to 115 month
Sentencing Guidelines range Mellot otherwise faced, and well below the U.S. Probation
Office’s recommended sentence of 104 months. However, this sentence was well above
the government’s recommendation for a sentence of 48 months.
     Mellot’s trial counsel did not file or make any motions for a downward departure
at sentencing. However, in his notice of appeal, trial counsel identified a number of
reasons why he believed Mellot’s sentence was improper. Counsel asserted that the court
should have further reduced Mellot’s sentence on the basis of his "minor" role in the
offense (Paragraphs 1, 2, 2, and 9 of Notice of Appeal, his post-offense rehabilitation
(Paragraphs 5 and 8; his physical disability as an amputee (Paragraph 9); and the fact that
his criminal history category overstates the seriousness of his prior convictions
(Paragraphs 6, 7, and 10).
     In our recent opinion in United States v. Marvin, 211 F.3d 778 (3d Cir. 2000), we
reconfirmed the duty of counsel filing Anders briefs to attempt to uncover the best
arguments for his or her client, and to explain the faults in possible arguments. We have
examined the scant record in this case, but find nothing that would require counsel to do
more than he has already.
     With respect to the suggested downward adjustment for a minor role in the
offense, the record contains no basis for such an evaluation. The record reflects that
Mellot, along with several defendants, was a dealer who participated in acquiring the
drugs that the defendants distributed in the community. The mere fact that Mellot did not
sell cocaine but only methamphetamine does not affect this conclusion. Mellot’s claim
that the record establishes post-offense rehabilitation, that he has become a better and
more responsible person, especially a better and quite responsible parent, which we
commend, does not even approach the very high standard required for a downward
departure on that ground. Neither does his physical disability as an amputee. We also
see no basis for the claim that the criminal history category overstates the seriousness of
his prior convictions. We note in this regard that the testimony that the prior convictions
should never have been entered does not permit us to ignore them.
           Two additional points need to be made. First, we note that Mellot did not ask the
District Court to consider these factors as grounds for a downward departure separate
from the departure the Court granted pursuant to the government’s 5K1.1 motion.
Accordingly, Mellot waived these issues on appeal, and they may be reviewed only for
plain error. United States v. Olano, 507 U.S. 725, 733-34 (1993).
     Second, even if Mellot’s trial counsel had raised these factors as grounds for a
separate motion for downward departure, it is apparent from the sentence imposed by the
District Court, that the Court was not disposed towards a more substantial departure.
(Supp. App. 103a-104a). We also note that, had the District Court been requested to
depart downward under Guidelines Section 5K1.2, and evinced knowledge of its power
to depart but declined to do so, its decision would not even be reviewable on appeal. The
challenge would be dismissed for lack of appellate jurisdiction. United States v.
Georgiadis, 933 F.2d 1219 (3d Cir. 1991); United States v. Denardi, 892 F.2d 269
(3d Cir. 1989).
     In our independent examination of the record, we have found that it presents no
issues that would justify further review. Accordingly, we will grant counsel’s motion to
withdraw and affirm the judgment of the District Court.                    ___________________
TO THE CLERK:

          Please file the foregoing Opinion.

                              BY THE COURT:



                                      /s/ Edward R. Becker
                              Chief Judge
