                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2001

United States v. Pultrone
Precedential or Non-Precedential:

Docket 98-1535




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Recommended Citation
"United States v. Pultrone" (2001). 2001 Decisions. Paper 35.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/35


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Filed January 26, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1535

UNITED STATES OF AMERICA

v.

RALPH PULTRONE,

       Appellant.

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 96-cr-00156-1)
District Judge: Honorable James McGirr Kelly

Submitted Under Third Circuit LAR 34.1(a)
September 12, 2000

Before: NYGAARD, ROTH and BARRY, Circuit Judges.

(Filed: January 26, 2001)

       Michael G. Paul, Esquire
       441 Main Street
       Metuchen, NJ 08840

        Attorney for Appellant
       Richard P. Barrett, Esquire
       Office of the United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106

        Attorney for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

Ralph Pultrone appeals from a Judgment in a Criminal
Case entered pursuant to our March 9, 1998 order
remanding for resentencing following the government's
appeal from the initial Judgment. Pultr one contends that
there was insufficient evidence to sustain his conviction for
attempting to possess cocaine with intent to distribute; that
the District Court erred in applying a pr eponderance of the
evidence standard to determine the amount of cocaine for
which he was responsible; and that he r eceived ineffective
assistance of counsel when his attorney failed to challenge
the District Court's application of the preponderance of the
evidence standard. Because we are convinced that Pultrone
waived each of these allegations of error when he failed to
pursue a direct appeal from the initial Judgment, we will
dismiss this appeal for lack of jurisdiction.

I.

On June 19, 1996 a federal grand jury retur ned a
superseding indictment, charging Pultr one with one count
of conspiracy to possess cocaine with intent to distribute
and one count of attempted possession of cocaine with
intent to distribute, both in violation of 21 U.S.C.S 846.

In September 1996 a jury convicted Pultrone of
attempted possession; he was found not guilty on the
conspiracy count. At the sentencing hearing on April 2,
1997, the District Court rejected Pultr one's contention that
he was responsible for only four ounces of cocaine and
found that Pultrone had attempted to possess one kilogram
of the drug. Accordingly, the Court assigned Pultrone a

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base offense level of 26 in criminal history category II and
sentenced him to a 76-month term of imprisonment, a
sentence which fell below the midpoint of the applicable
Guidelines range.

On April 4, 1997, the government filed a motion to
correct sentence under Fed. R. Crim. P. 35(c), requesting
that the District Court resentence Pultr one to the statutory
minimum prison term mandated by 21 U.S.C.S 841(b)(1)(B).1
A hearing on the motion was set for May 6, 1997. On April
10, 1997, Pultrone filed a notice of appeal.

On May 2, 1997, the government requested that the
hearing on its Rule 35(c) motion be canceled because the
seven-day period for decision specified in the rule had
expired. On the same day, the governmentfiled a notice of
cross-appeal contending only that the District Court
committed clear error in failing to sentence Pultrone to the
ten-year statutory minimum term of imprisonment.
Pultrone voluntarily withdrew his appeal.

We considered the government's appeal and agreed that
the District Court should have sentenced Pultr one in
accordance with the provisions of section 841(b)(1)(B). In
the Judgment filed in March 1998, we dir ected "that the
judgment of the . . . District Court entered April 3, 1997, be
. . . vacated and the cause . . . remanded for further
proceedings consistent with this opinion." United States v.
Pultrone, No. 97-1327 (3d Cir. Mar ch 9, 1998).
_________________________________________________________________

1. This section provides, in relevant part as follows:

       (B) In the case of a violation of subsection (a) of this section
       involving--

       (ii) 500 grams or more of a mixture or substance containing a
       detectable amount of --

       (II) cocaine . . .

       such person shall be sentenced to a term of imprisonment which
       may not be less than 5 years. . . . If any person commits such a
       violation after a prior conviction for a felony drug offense has
       become final, such person shall be sentenced to a term of
       imprisonment which may not be less than 10 years. . . .

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On June 9, 1998, the District Court resentenced Pultrone
to a 120-month term of imprisonment in accor dance with
our order. This timely appeal followed.

II.

In its brief, the government argues that because Pultrone
failed to pursue the allegations of error raised here "when
he first filed a direct appeal in 1997,[we are] without
jurisdiction to review [those] argument[s] now." We agree.
Each of these allegations of error could and should have
been raised in that direct appeal; because Pultrone
voluntarily withdrew the appeal, he failed to preserve these
issues. "By withdrawing his [initial] notice of appeal,
[Pultrone] has waived his right to appeal issues conclusively
established by that judgment, in this case his conviction on
count [two] of the indictment[,]" and the District Court's
calculation of the amount of cocaine attributable to him.
United States v. Mendes, 912 F.2d 434, 438 (10th Cir.
1990).

At resentencing, the action taken by the District Court
reflected only our direction that the statutory minimum
sentence be imposed; because Pultrone abandoned his
appeal, no other aspect of his conviction or sentence was at
issue. In this circumstance, "[t]he grant of remand on
appeal does not reopen the order appealed from; instead,
remand commences a new proceeding which will ultimately
terminate in another final order ." Id. at 437-38 (citing 15 C.
Wright, A. Miller & E. Cooper, Federal Practice and
Procedure S 3901, at 1 (Supp. 1990)). We will not revisit
here allegations of error which wer e conclusively
determined by the original Judgment.

Our conclusion with respect to Pultrone's allegation that
he received ineffective assistance of counsel is similar. As a
general matter, we do not entertain claims r elating to
ineffective assistance of counsel on dir ect appeal. United
States v. Cocivera, 104 F.3d 566 (3d Cir . 1996). To the
extent that this issue might have been appropriate for
evaluation on direct appeal under the narr ow exception
described in United States v. Headley, 923 F .2d 1079, 1083
(3d Cir. 1991), this issue, too, was waived when Pultrone

                               4
abandoned his original appeal. Any claim which Pultr one
may have based on ineffective assistance of counsel must
be raised under the provisions of 28 U.S.C.S 2255.

III.

Because Pultrone has waived each of the allegations of
error raised here, we will dismiss this appeal for lack of
jurisdiction.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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