                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4594




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                                                NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                     _____________

                      No. 07-4594
                     _____________

            UNITED STATES OF AMERICA


                             v.


                   OSMAN GARBA,
                             Appellant




               Appeal from the United States
        District Court for the District of New Jersey
                   (D.C. No. 99-cr-00704)
    District Court Judge: Honorable Mary Little Cooper


                      ___________

      Submitted Under Third Circuit L.A.R. 34.1(a)
                   January 8, 2009
                    ___________

Before: FUENTES, FISHER and ALDISERT, Circuit Judges,

            (Opinion Filed: January 22, 2009)
                      ___________

                       OPINION
                      ___________
FUENTES, Circuit Judge:

       Anthony G. Simonetti, Esq., appellate counsel for Osman Garba (“Garba”),

Defendant below, moves to withdraw as counsel pursuant to Anders v. California, 386

U.S. 738 (1967). We will grant the motion and affirm Garba’s conviction and sentence.

                                             I.

       Because we write primarily for the parties, we set forth only those facts necessary

to our decision. Garba, a native of Ghana, was indicted in the United States District

Court for the District of New Jersey for involvement in an international conspiracy to

distribute cocaine. On February 28, 2002, Garba moved to dismiss the indictment for

Speedy Trial Act violations. The District Court denied the motion. On March 11, 2002,

pursuant to a written agreement, Garba pled guilty to conspiracy to distribute and to

possess with intent to distribute more than 15 kilograms of cocaine in violation of 21

U.S.C. §§ 841 and 846. The government dismissed the rest of the charges.

       Under the agreement, Garba stipulated that, inter alia, the drug amount was

between 15 and 50 kilograms. At sentencing on June 26, 2002, Garba attempted to

dispute the quantity of drugs, claiming that he only pled guilty because he thought he

could raise the issue at sentencing. Garba then moved to withdraw his guilty plea. The

District Court held extensive hearings and ultimately denied the motion.

       The District Court sentenced Garba to 320 months imprisonment on November 18,

2003. Garba appealed the denial of his motion to withdraw the guilty plea, the denial of



                                             2
his Speedy Trial Act claim, and the sentence. We affirmed on June 6, 2005, but

remanded for re-sentencing pursuant to United States v. Booker, 543 U.S. 220 (2005).

        The District Court re-sentenced Garba to 280 months imprisonment on November

28, 2007.1 Garba timely appealed. Simonetti contends there are no non-frivolous issues

for appeal and seeks to withdraw. We have jurisdiction under 28 U.S.C. § 1291.

                                             II.

        The Supreme Court in Anders held that if appointed appellate counsel “finds his

case to be wholly frivolous, after a conscientious examination of it, he should so advise

the court and request permission to withdraw. That request must, however, be

accompanied by a brief referring to anything in the record that might arguably support the

appeal.” 2 386 U.S. at 744.

        We must consider “(1) whether counsel adequately fulfilled [Local Rule

109.2(a)’s] requirements; and (2) whether an independent review of the record presents

any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). The

first prong is dispositive, and “‘except in those cases in which frivolousness is patent, we

will reject briefs . . . in which counsel argue the purportedly frivolous issues aggressively

without explaining the faults in the arguments, as well as those where we are not satisfied

that counsel adequately attempted to uncover the best arguments for his or her client.’”



   1
       Judgment was entered on December 21, 2007.
   2
       This process is mirrored by our Local Appellate Rule 109.2(a). 3d Cir. R. 109.2(a).

                                              3
Id. at 300 (quoting United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000) (alteration

in original)).

       Under the first prong, we find counsel’s Anders brief to be inadequate. Simonetti

did not “fully and intelligently discuss[] the issues” that may arise, nor did he attempt “to

uncover the best arguments for his . . . client” and explain their faults. Marvin, 211 F.3d

at 780 n.3, 781.

       Simonetti focused only on the District Court’s compliance with Federal Rule of

Criminal Procedure 32 and its three-step sentencing procedure. Simonetti recounts the

District Court’s re-sentencing, step-by-step, explaining the calculations at step one, the

consideration of departure motions at step two (noting only that the District Court had

discretion to consider departures), and the consideration of the Section 3553(a) factors at

step three.

       While Simonetti concluded there were no non-frivolous issues for appeal, he did

not explain specific issues his client may raise nor did he provide legal analysis to

discount them. By contrast, Garba filed two pro se briefs, presenting four arguments: (1)

Garba did not waive his Speedy Trial Act rights; (2) the District Court lost its jurisdiction

due to constructive amendment of the indictment or because the indictment failed to state

an offense; (3) Mr. Rhoads, Garba’s trial counsel, provided ineffective assistance because

he failed to inform Garba that an unconditional guilty plea would waive his Speedy Trial

Act claim; and (4) the sentence was unreasonable (based on disparity of sentence, over-



                                              4
representation of criminal history, and the District Court’s failure to depart downwardly).3

       Regardless, after our own review of the record, we find that the issues presented by

Garba are patently frivolous under the exception set forth in Marvin.

                                            III.

                                             1.

       Garba contends that he did not waive his right to appeal the denial of his Speedy

Trial Act motion in light of Zedner v. United States, 547 U.S. 489 (2006) or, alternatively,

that his guilty plea was not knowing and voluntary because at the time he thought he

would be able to appeal. Zedner is not relevant, however, because there the Supreme

Court held that “a defendant may not prospectively waive the application of the [Speedy

Trial] Act.” Id. at 503 (emphasis added). There was no prospective waiver in this case.

Indeed, Garba unsuccessfully moved to dismiss the indictment based on the Speedy Trial

Act.

       Furthermore, Garba cannot attack his guilty plea due to his erroneous impression

that he could appeal the denial of his Speedy Trial Act claim. During the plea colloquy,

the government conceded that there was “nothing in the plea agreement where he waives

any of his rights that he doesn’t normally waive by entering a plea of guilty.” The District

Court emphasized, and Garba understood, that the propriety of the appeal was up to the

Third Circuit. In fact, Rhoads spoke with Garba regarding the appeals and told the

   3
    The government responded to Garba’s briefs with a detailed twenty-two-page
opposition brief.

                                             5
District Court “it may well be that the 3rd Circuit may say it’s not cognizable on appeal. I

wanted [Garba] to be aware of that before we go any further. And he’s aware of that.”

       Moreover, the District Court did not fail to inform Garba of his waiver of appellate

rights. At the time of the guilty plea – March 11, 2002 – we had not yet officially held

that an unconditional guilty plea constituted a waiver of Speedy Trial Act rights. We so

held in Washington v. Sobina, 475 F.3d 162, 164 (3d Cir. 2007), nearly five years later.

Given the state of the law, the District Court accurately informed Garba that we would

have had to decide whether a Speedy Trial Act claim could be heard on appeal despite a

plea of guilty. That we ultimately decided contrary to Garba’s position is of no moment.

Indeed, “a voluntary plea of guilty intelligently made in the light of the then applicable

law does not become vulnerable because later judicial decisions indicate that the plea

rested on a faulty premise.” Brady v. United States, 397 U.S. 742, 757 (1970).

                                              2.

       Garba’s jurisdictional argument is frivolous. Garba claims that overly broad facts

set forth by the government at the plea colloquy constructively amended the indictment to

charge him with exportation crimes. Garba thus argues that he was convicted of a crime

he was not indicted for, and/or that the indictment failed to state an offense.

       In his first appeal Garba did not challenge the District Court’s jurisdiction or allege

a constructive amendment of the indictment. Therefore, because this “allegation[] of

error could and should have been raised” in his first appeal, Garba “failed to preserve



                                              6
these issues” and we are accordingly without jurisdiction to review this argument now.

United States v. Pultrone, 241 F.3d 306, 307 (3d Cir. 2001).4

                                             3.

       Garba’s ineffective assistance of counsel claim is also frivolous.

              It has long been the practice of this court to defer the issue of
              ineffectiveness of trial counsel to a collateral attack.
              Nonetheless, we have held that we may address the claim of
              ineffective assistance of counsel on direct appeal when the
              record is sufficient to allow determination of the issue.

United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003) (internal citation omitted).

Garba argues that the exception applies here. We do not agree.

       The record is not sufficient for us to evaluate Rhoads’s strategy and advice

regarding Garba’s plea and his Speedy Trial Act claim. The District Court’s opinion only

addressed Rhoads’s effectiveness as it related to the drug amount stipulation in the plea

agreement. We lack a record of Rhoads’s reasoning for his actions and do not have

Rhoads’s own account of his advice to Garba. Thus, to engage in an ineffective

assistance of counsel analysis now would be entirely speculative. Garba’s claim is more

appropriately raised in a collateral action pursuant to 28 U.S.C. § 2255.

                                             4.



   4
     Nonetheless, we note that the Supreme Court “has long recognized that when an act
violates more than one criminal statute, the Government may prosecute[] under either so
long as it does not discriminate against any class of defendants.” United States v.
Batchelder, 442 U.S. 114, 123-24 (1979). Garba clearly violated the statutes under which
he was indicted.

                                             7
       Garba’s claim that his sentence was unreasonable is similarly without merit.

Under Gall v. United States, 128 S. Ct. 586 (2007), our review of a sentence is a two-step

process. We

              must first ensure that the district court committed no significant
              procedural error in arriving at its decision, “such as failing to
              calculate (or improperly calculating) the Guidelines range,
              treating the Guidelines as mandatory, failing to consider the §
              3553(a) factors, selecting a sentence based on clearly erroneous
              facts, or failing to adequately explain the chosen sentence . . . .”

United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008) (quoting Gall, 128 S. Ct. at 597).

Here, the District Court committed no procedural errors—Garba’s challenges are

substantive. Accordingly, we review for abuse of discretion. Id. at 218. If the sentence

“falls within the broad range of possible sentences that can be considered reasonable in

light of the § 3553(a) factors, we must affirm.” Id.

       Garba claims he received a greater sentence than similarly situated co-defendants.

“[T]he kind of ‘disparity’ with which § 3553(a)(6) is concerned is an unjustified

difference across judges (or districts) rather than among defendants to a single case.”

United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006); United States v. Parker,

462 F.3d 273, 277 (3d Cir. 2006) (“We have concluded that Congress’s primary goal in

enacting § 3553(a)(6) was to promote national uniformity in sentencing rather than

uniformity among co-defendants in the same case.”). Thus, “a defendant cannot rely

upon § 3553(a)(6) to seek a reduced sentence designed to lessen disparity between




                                               8
co-defendants’ sentences.” Parker, 462 F.3d at 277.5

       Garba next argues that the District Court erred in failing to depart downwardly

based upon Garba’s acceptance of responsibility, over-representation of his criminal

history, and risk of deportation. All three grounds are frivolous because we are without

jurisdiction to review a District Court’s lawful discretionary decision not to depart

downward. See United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006); United

States v. Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989).

                                             IV.

       Although Simonetti’s brief is inadequate, Garba’s grounds for appeal are frivolous.

Thus, we will grant Simonetti’s motion and affirm Garba’s conviction and sentence.




   5
     Even so, the District Court explained that co-defendant Albert Kittoe was not
“similarly situated” because he received a departure for cooperation, while co-defendants
Joe Mensah and Felix Yaw Oppong received slightly shorter sentences because of lower
criminal history categories.

                                             9
