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


7-23-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3970




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"USA v. Queen" (2003). 2003 Decisions. Paper 347.
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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 02-3970


                            UNITED STATES OF AMERICA

                                             v.

                             KEVIN QUEEN, a/k/a “Ya Ya,”
                                                  Appellant
                                   ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                             (D.C. Crim 01-cr-00615)
                  District Judge: Honorable Mary Little Cooper
                                  ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    July 18, 2003
                  Before: McKEE, BARRY, and W EIS, Circuit Judges.
                                 (Filed : July 23 2003)
                                   ____________

                                         OPINION


WEIS, Circuit Judge.

              As a result of a plea bargain with the prosecution, defendant pleaded guilty

to one count of distribution, and possession with intent to distribute crack-cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). As part of the agreement, defendant



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stipulated that he was a career criminal.

              The District Court sentenced the defendant to 151 months of imprisonment,

a $500 fine, and a three-year term of supervised release. At the defendant’s request, his

counsel filed this appeal and, following a review of the record, prepared an Anders brief.

The defendant also filed a pro se brief on his own behalf, raising a number of issues.

              Defendant first alleges error because counsel failed to argue that defendant

was taking medicine for mental illness. Upon review of the record, though, it appears that

the District Court was aware of this fact, but nevertheless declined a downward

adjustment on the basis of diminution of responsibility. As a result, this Court lacks

jurisdiction to hear such a discretionary ruling. United States v. McQuilken, 97 F.3d 723

(3d Cir. 1996).

              Insofar as defendant’s assertions can be considered as a claim for

ineffective assistance of counsel, the matter is not properly before the Court on direct

appeal, but may be raised in a motion under 28 U.S.C. § 2255.

              Defendant also alleges that the Court erroneously assigned criminal history

points for convictions that were 15 and 16 years old. However, because defendant was

still serving sentences for those crimes after M ay 1996, they were properly considered in

the Guideline computation. In any event, the defendant would have been placed in the

career criminal category because of his other convictions and the stipulation in the plea

agreement.



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              Defendant also alleges that he was “set up” by the police on August 30,

2002. Even if true, the assertion is irrelevant because the defendant was sentenced on the

basis of count one, which did not refer to any incident on August 30, 2002. Rather, the

judgment referred only to a sale of crack-cocaine that occurred on M ay 15, 2001.

              Defendant also contends that he should have received “credit” for

participating in a proffer session. Defendant did not raise this issue in the District Court

and, moreover, did not enter into a cooperating plea agreement with the government.

This contention must be considered to have been waived. We find no plain error in the

failure to apply a downward departure. See United States v. Brannan, 74 F.3d 448 (3d

Cir. 1996).

              Defendant also asserts error because defense counsel failed to object to the

offender designation. However, the record demonstrates that defense counsel did contend

that the career offender status over-represented the defendant’s actual criminal history.

Over this objection, nonetheless, the District Court found that the defendant had at least

five predicate convictions which suffices to establish career offender status. The record

before us refutes any claim of inadequate representation because those points were

specifically raised and carefully considered.

              Finally, defendant points out that individuals with more extensive criminal

histories have received downward departures. Plaintiff submits no evidence of analogous

cases to support that allegation and, therefore, it lacks merit.



                                                3
              We have studied the record of the plea hearing and the sentencing

proceedings and find no error.

              Accordingly, we will affirm the Judgement of the District Court, and grant

defense counsel’s motion to withdraw. The issues presented in this appeal lack legal

merit and, thus, counsel is not required to file a petition for certiorari with the Supreme

Court. See Third Circuit L.A.R. 109.2. Insofar as the first contention of the claim of

inadequate representation may be considered, it will be reserved for any section 2255

motion that defendant may file.




                                              4
______________________________

TO THE CLERK:


           Please file the foregoing Opinion.




                                       /s/ Joseph F. Weis, Jr.
                                      United States Circuit Judge




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