                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4568




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"USA v. Garba" (2005). 2005 Decisions. Paper 1369.
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                                                                 NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 03-4568


                         UNITED STATES OF AMERICA

                                         v.

                                 OSMAN GARBA,
                                     a/k/a Alaji,
                                    a/k/a Ishmael,
                             a/k/a Oussoumanou Garba,

                                                     Appellant




                  On Appeal from the United States District Court
                            for the District of New Jersey
                    (D.C. Criminal Action No. 99-cr-00704-3)
                   District Judge: Honorable Mary Little Cooper


                    Submitted Under Third Circuit LAR 34.1(a)
                                 April 4, 2005

              Before: BARRY, AMBRO and COWEN, Circuit Judges

                               (Filed: April 13, 2005)


                                     OPINION


AMBRO, Circuit Judge

     Osman Garba appeals the District Court’s (1) denial of his motion to withdraw his
guilty plea, (2) denial of his motion to dismiss his indictment under the Speedy Trial Act,

and (3) the sentence it imposed. For the reasons that follow, we affirm the District

Court’s denials of Garba’s motions challenging his conviction. However, in light of

United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005), we vacate his sentence and

remand for resentencing.

        The District Court had jurisdiction under 18 U.S.C. § 3231. Our Court has

jurisdiction pursuant to 28 U.S.C. § 1291. As we write solely for the parties, we do not

restate the facts underlying the appeal.

                                              I.

        Garba argues that the District Court should have granted the motion to withdraw

his guilty plea “because (1) his plea was given under the mistaken belief that he would be

able to contest the amount of cocaine involved at a hearing before the sentencing; (2) his

plea was the result of ineffective assistance of counsel in violation of the Sixth

Amendment; and (3) the plea hearing conducted by the Court violated Rule 11 because

Garba was not made aware that at trial the government would have to prove the quantity

of cocaine involved to the jury beyond a reasonable doubt.” United States v. Garba, 285

F. Supp. 2d 504, 509 (D.N.J. 2003). After conducting an evidentiary hearing, the District

Court carefully considered each of these arguments at length, applying the framework we

described in United States v. Jones, 336 F.3d 245 (3d Cir. 2003), and ultimately rejected

them.



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       “[T]here is no absolute right to withdraw a guilty plea,” but rather “acceptance of

the motion is within the discretion of the trial court.” Gov't of V.I. v. Berry, 631 F.2d

214, 219 (3d Cir.1980). We are satisfied that the District Court properly exercised this

discretion in a manner consistent with our Circuit’s precedent. Its denial of Garba’s

motion to withdraw his plea was thorough, careful and well-reasoned. We therefore

accept its conclusion.

                                              II.

       Having upheld the District Court’s denial of Garba’s motion to withdraw his guilty

plea, we can easily dispense with his Speedy Trial Act argument. His unconditional

guilty plea (without reservation of the right to challenge the denial of his motion under

the Act) operated as a waiver of all claims of pre-existing error (except those going to the

Court’s jurisdiction). As such, Garba has waived the right to invoke on appeal the denial

of his Speedy Trial Act motion.

                                             III.

       Only Garba’s challenge to his sentence under Booker remains. Having determined

that the sentencing issues he raises are best determined by the District Court in the first

instance, we vacate his sentence and remand for resentencing in accordance with Booker.




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