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


5-22-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2269




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                                                    NOT PRECEDENTIAL


  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                             No. 02-2269


                  UNITED STATES OF AMERICA

                                  v.

                      DOUGLAS M. SHAW, JR.
                            a/k/a D

                        Douglas M. Shaw, Jr.,
                                             Appellant


            On Appeal from the United States District Court
                    for the District of New Jersey
                      (D.C. No. 01-cr-00267-02)
               District Judge: Hon. Faith S. Hochberg


              Submitted Under Third Circuit LAR 34.1(a)
                           May 22, 2003

Before: SCIRICA, Chief Judge, SLOVITER and NYGAARD, Circuit Judges

                        (Filed May 22, 2003)




                     OPINION OF THE COURT
SLOVITER, Circuit Judge.

       In this appeal from his conviction for conspiracy to distribute and possess with

intent to distribute more than 50 grams of crack cocaine, Appellant Douglas Shaw argues

that the Government did not prove that the cocaine base he sold was in fact crack.

                                             I.

       Shaw entered into a plea agreement dated June 8, 2001, in which he agreed that, on

or about January 2001 until April 17, 2001, he conspired with others to distribute and

possess with intent to distribute in excess of 50 grams of crack cocaine. At the change of

plea hearing, he confessed to distribution of approximately 60 grams of crack cocaine on

April 17, 2001 to Leron Jackson at a Burger King restaurant. In response to an inquiry by

the District Court, Shaw stated that he understood the terms of his plea agreement which

contained the words “crack cocaine.” App. at 27-8. The District Court then accepted

Shaw’s guilty plea.

       At the sentencing hearing, Shaw’s counsel moved for a downward departure, on

various grounds which were, as the Government stated, “eloquently advanced.” App. at

53. The court denied the motion. Thereafter, counsel sought reconsideration of Shaw’s

career offender status and was successful on that motion. Shaw was sentenced to 144

months in prison, instead of being subject to a sentencing range of 262 to 327 months

applicable to a career offender.

       On appeal, Shaw argues that the Government did not prove that the cocaine base in


                                             2
his possession on April 17, 2001 was crack. His counsel filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967). To satisfy the Anders requirements, appellant’s

counsel must “satisfy the court that he or she has thoroughly scoured the record in search

of appealable issues” and “explain why the issues are frivolous.” United States v.

Marvin, 211 F.3d 778, 780 (3d Cir. 2000). Under Anders, if, after review of the district

court record and a conscientious investigation, counsel is convinced that the appeal

presents no issue of arguable merit, counsel may properly ask to withdraw while filing a

brief referring to anything in the record that might arguably support the appeal. 386 U.S.

at 744. The defendant is given an opportunity to file a brief, and Shaw filed a pro se

brief.

                                            II.

         As noted above, Shaw argues that the Government should have been required to

prove that the substance in his possession was in fact “crack cocaine” for purposes of

sentencing. He does not argue that the substance was not crack and, significantly, has

admitted that he was selling crack. In an exhaustive colloquy with the District Court,

Shaw answered as follows:

               Q       On that date did you get approximately 60.4 grams
               gross of crack cocaine from an individual known to you as ‘E’
               and sometimes referred to you as Esai, which you planned to
               sell to the individual?

               A      Yes.

               Q      Later on April 17th, 2001, did you appear at the Burger

                                             3
              King parking lot with approximately 60.4 grams gross of
              crack cocaine, get into a vehicle with Leron Jackson and the
              individual and hand the crack cocaine to Leron?

              A       Yes.
                                            .   .   .

              Q     In or about March 2001 did you purchase
              approximately 100 hundred grams of crack cocaine from a
              New York City source known to you as Mohan also known as
              ‘Moo’?

              A       Yes.

App. at 37.

       He also admitted that he fully understood the terms of his agreement and the crime

to which he was pleading guilty. Under the circumstances, we reject Shaw’s argument

that the Government failed to prove that the substance was crack cocaine. There was no

need to prove something Shaw had admitted.

       Shaw also argues that his trial counsel gave ineffective assistance. We have held

that such challenges should be brought in collateral actions and not on direct appeal.

United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). In Haywood, this court

reiterated that the only exception to this rule is “‘[w]here the record is sufficient to allow

a determination of ineffective assistance of counsel, [and] an evidentiary hearing to

develop the facts is not needed.’” Id. (quoting United States v. Headley, 923 F.2d 1079,

1083 (3d Cir. 1991)). This is not such a case.




                                                4
                                           III.

      For the reasons set forth, we will affirm the judgment of conviction and sentence.

We will grant counsel’s motion to be relieved.




                                                  /s/ Dolores K. Sloviter
                                                  Circuit Judge
