                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1399




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                                                               NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 06-1399

                          UNITED STATES OF AMERICA

                                            v.

                               KWAME DWUMAAH,

                                             Appellant


                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                   District Judge: Honorable Christopher C. Conner
                            District Court No.: 05-CR-00157


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   May 12, 2006

              Before: BARRY, SMITH, and TASHIMA,* Circuit Judges

                                (Filed: May 31, 2006)


                             OPINION OF THE COURT


TASHIMA, Circuit Judge.

      Appellant Kwame Dwumaah entered a guilty plea to one count of theft of

government monies, in violation of 18 U.S.C. § 641. He received a five-month term of



      *
        The Honorable A. Wallace Tashima, Senior United States Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.
imprisonment. On appeal, he contends that his prior counsel was ineffective for failing to

object to the amount of loss calculated in the Presentence Investigation Report (“PSR”).

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction

over the final order of the district court pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a).

                                             I.

       Dwumaah, a citizen of Ghana, was indicted on numerous charges related to his

receipt of student loans from the United States Department of Education. Dwumaah

claimed to be a United States citizen on the loan application forms. After entering a plea

of not guilty, Dwumaah entered into a plea agreement with the government, in which he

agreed to plead guilty to an information charging him with one count of theft of public

monies, in violation of 18 U.S.C. § 641, based on his receipt of a $500 student loan in

November 2000. Under the agreement, the government and Dwumaah agreed “that the

loss to the victim for the offense to which the defendant is pleading guilty is $500.”

However, they further agreed that “the Court will also determine the amount of the loss in

this case under the U.S. Sentencing Guideline provisions governing ‘relevant conduct,’

for the purposes of adjusting the defendant’s base level.” The government agreed to

recommend a sentence within the “advisory guideline range,” but warned that the court

would not be bound by “any recommendations or agreements made by the parties.”

              According to the PSR, the government submitted that the total loss,

including all of the loans and grants Dwumaah received at two schools, as well as

                                             2
interest paid by the Department of Education on some of the loans, was $75,192.

Dwumaah’s Sentencing Memorandum, filed in response to the PSR, acknowledged that

the loss was in excess of $70,000.

       At the sentencing hearing, Dwumaah’s counsel agreed that the amount of the loss

was $75,192. He did object to the denial of an adjustment for acceptance of

responsibility, contending that Dwumaah believed that he obtained the loans properly.

He further argued that Dwumaah was entitled to the acceptance of responsibility

adjustment because he was willing to make restitution in the full amount.

       The district court relied on the $75,192 figure in calculating Dwumaah’s offense

level but granted a two-level reduction for acceptance of responsibility, resulting in a

guideline range of 10-16 months, reduced by the statutory maximum to 10-12 months.

The court sentenced Dwumaah to five months’ imprisonment and ordered him to pay

$75,192 in restitution.

                                             II.

       Ineffective assistance of counsel claims generally are not addressed on direct

appeal because “‘such claims frequently involve questions regarding conduct that

occurred outside the purview of the district court and therefore can be resolved only after

a factual development at an appropriate hearing.’” United States v. McLaughlin, 386

F.3d 547, 555-56 (3d Cir. 2004) (quoting Gov’t of Virgin Islands v. Zepp, 748 F.2d 125,

133 (3d Cir. 1984)). “Where a claim of ineffective assistance of counsel is based on

attorney incompetence, the lack of a fully developed record often precludes a

                                              3
comprehensive inquiry into the elements of strategy or tactics that may have entered into

defense counsel’s challenged decision.” Id. at 556. The court accordingly reserves such

claims “for disposition in section 2255 proceedings.” United States v. Barnes, 324 F.3d

135, 139 (3d Cir. 2003). A narrow exception to this rule exists where the record is

sufficient to allow determination of an ineffective assistance claim. McLaughlin, 386

F.3d at 556; see also United States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003).

       Dwumaah contends that his former counsel’s failure to object to the $75,192 figure

determined to be the amount of the loss constituted ineffective assistance. He argues that

the usual rule precluding an ineffective assistance claim on direct appeal does not apply

because the record clearly reveals how he was prejudiced by his counsel’s failure to

challenge the amount.

       The narrow exception to our general rule does not apply here because the record is

not sufficient to determine Dwumaah’s ineffective assistance claim. Government counsel

stated at the change of plea hearing that he would present evidence of the amount of the

loss to the court, that he already had given Dwumaah’s counsel a spreadsheet regarding

the amount, and that he would be prepared to establish the amount at an evidentiary

hearing if necessary. None of this evidence is in the record. Thus, similar to Barnes,

where we declined to make factual findings regarding the defendant’s ineffective

assistance claim, we decline to address Dwumaah’s claim. We will therefore affirm the

sentence imposed by the district court and dismiss the appeal without prejudice with

respect to the ineffective assistance of counsel claims. See McLaughlin, 386 F.3d at 556

                                             4
(dismissing without prejudice the appeal “to the extent that it claims ineffective assistance

of counsel”).

       Sentence AFFIRMED; ineffective assistance of counsel claims DISMISSED

without prejudice.




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