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


6-13-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 00-2791




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 00-2791


                          UNITED STATES OF AMERICA

                                           v.

                                   SHAYNE LOVE,
                                             Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                            D.C. Crim. No. 98-cr-00452-1
                 District Judge: The Honorable Jerome B. Simandle


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 6, 2003


   Before: BARRY, FUENTES, Circuit Judges, and McLAUGHLIN,* District Judge


                            (Opinion Filed: June 13, 2003 )


                                       OPINION




   *
    Honorable Mary A. McLaughlin, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

       On October 28, 1999, appellant Shayne Love pled guilty to a one-count indictment

charging him with conspiracy to distribute and to possess with intent to distribute more

than 100 grams of heroin in violation of 21 U.S.C. § 846. Love’s plea agreement with the

government stipulated that the reasonably foreseeable weight of the total heroin involved

in the charged conspiracy was between one and three kilograms, and that the applicable

guideline for the offense charged was section 2D1.1 of the United States Sentencing

Guidelines. Love’s plea agreement further acknowledged that the sentence to be imposed

was within the sole discretion of the sentencing judge and could be up to a maximum of

forty years imprisonment and a $2,000,000 fine. On the last page of the plea agreement,

Love signed a statement that he had received the plea agreement from his attorney, had

read it, and fully understood it.

       At his sentencing hearing on September 14, 2001, Love objected to the

Presentence Report (“PSR”), arguing that although he had intended to plead guilty, he had

not intended to stipulate that the charged conspiracy involved between one and three

kilograms of heroin, as stated in the plea agreement. Love also requested a downward

departure based on the harsh conditions of his pre-trial confinement at the Camden

County Jail. After considering Love’s arguments, the District Court found that he had

knowingly entered into the challenged stipulation, and that the PSR had thus correctly

calculated his offense level as 35. The District Court also found, after questioning Love



                                            2
about the conditions of his pre-trial confinement, that it was not so harsh or inappropriate

as to warrant a downward departure, but did take the issue into consideration in

determining Love’s sentence within the applicable Guideline range. The District Court

then sentenced Love to 230 months of imprisonment, a $5,000 fine, four years of

supervised release and a special assessment of $100.

       Because Love entered an unconditional guilty plea on the record in open court, his

arguments on appeal are limited to challenging the jurisdiction of the District Court, the

validity of the plea, and the legality of the sentence imposed. See United States v. Broce,

488 U.S. 563, 569 (1989). The District Court had jurisdiction pursuant to 18 U.S.C. §

3231. Our review of the record, just as the review of appellate counsel who has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967) and moved to withdraw,

indicates that Love’s guilty plea was knowing and voluntary and that the District Court

complied with the requirements of Rule 11 of the Federal Rules of Criminal Procedure in

accepting the plea. There is simply no evidence proffered by Love that would suggest

that his own statement in the plea agreement that he understood the agreement and

accepted its terms was unreliable or incorrect, including the stipulation that the charged

conspiracy involved between one and three kilograms of cocaine.

       It follows from this conclusion that Love’s 230 month sentence was proper.

Section 2D1.1 of the Guidelines clearly indicates that the appropriate offense level for a

drug conspiracy involving between one and three kilograms of heroin is 32. Given



                                             3
Love’s stipulations in the plea agreement, the District Court correctly applied both a three

level enhancement for supervising more than five participants in the conspiracy pursuant

to section 3B1.1 of the Guidelines, and a three-level reduction for acceptance of

responsibility, resulting in a final offense level of 32 and a sentencing range of 210-262

months of imprisonment after factoring in Love’s criminal history category.

       Finally, we do not have jurisdiction to review the District Court’s discretionary

denial of Love’s motion for a downward departure for what he alleged were particularly

harsh conditions of pretrial confinement. See 18 U.S.C. § 3742; United States v. Ruiz,

536 U.S. 622, 627 (2002). The District Court expressly recognized its discretion to

downwardly depart, and declined to do so.

       Because our independent review of the record shows no additional non-frivolous

issues, the judgment of the District Court will be affirmed and counsel’s motion to

withdraw will be granted.


TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.




                                                 /s/ Maryanne Trump Barry
                                                 Circuit Judge




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