                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4761




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-4761


                           UNITED STATES OF AMERICA

                                            v.

                                 JEROME MCCLARY,

                                                 Appellant


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. Crim. No. 03-00046)
                      Honorable James M. Munley, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                   October 29, 2004

   BEFORE: SCIRICA, Chief Judge, and FISHER and GREENBERG, Circuit Judges

                               (Filed: November 3, 2004)


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

       Jerome McClary appeals from a judgment of conviction and sentence entered on

December 9, 2003, following his plea of guilty in this criminal case. His attorney has

filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and has
filed a motion pursuant to Anders requesting that the court grant him leave to withdraw as

appellate counsel. In addition, McClary has filed a pro se brief addressing the merits of

his appeal. McClary pleaded guilty to the conspiracy count of a two-count indictment

charging him in the first count with conspiracy to distribute and possess with intent to

distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. § 846 and in the

second count with possession with intent to distribute in excess of 500 grams of cocaine.

21 U.S.C. § 841(a)(1); 18 U.S.C. § 2.

       At the sentencing it was conceded that, based on his prior record and the offense

here McClary is a career criminal. McClary sought a departure from this designation on

the theory that it overrepresented his criminal history. The court recognized that it could

depart on this basis but declined to do so. The government, however, moved to depart

pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) to reflect McClary’s substantial

assistance. The court granted this motion and departed downwards 3 levels from the

offense level of 31 to a level of 28 which, with his criminal history category of VI,

reduced his sentencing range from 188 to 235 months to 140 to 175 months. The court

then departed an additional 4 levels to level 24 yielding a range of 100 to 125 months. It

imposed a custodial sentence of 108 months followed by a four-year term of supervised

release. McClary then appealed.

       We deal first with a housekeeping matter. Insofar as we can ascertain, the docket

sheets do not indicate that the second count of the indictment has been dismissed even



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though the parties’ plea agreement provides that “[a]fter sentencing, the United States

will move for dismissal of any remaining counts,” App. at 22, and the judgment of

conviction and sentence recites that “[t]he remaining count of the indictment has been

dismissed upon Government’s motion.” Id. at 1. If the district court has not dismissed

the second count the government may move for its dismissal after completion of this

appeal. On the other hand if the court has dismissed the count the docket sheets should be

corrected to reflect the dismissal.

       On the merits we will affirm insofar as M cClary seems to claim that he was not a

career offender as we reject this contention inasmuch as he had two prior felony

convictions which were separate and not related. To the extent that M cClary is

challenging the court’s refusal to depart further, we do not have jurisdiction for the

district court recognized that it had the authority under U.S.S.G. § 4A1.3 “to further

depart, but . . . did not feel it is warranted in this situation.” App. at 155. See United

States v. Parker, 902 F.2d 221 (3d Cir. 1990); United States v. Denardi, 892 F.2d 269 (3d

Cir. 1989). Consequently, we grant his attorney’s motion to withdraw.

       The judgment of conviction and sentence entered on December 9, 2003, will be

affirmed.




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