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


3-28-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 01-3503




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Recommended Citation
"USA v. Crommarty" (2003). 2003 Decisions. Paper 704.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/704


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                                                                           NOT PRECEDENTIAL

                         IN THE UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT
                                    ________________

                                             No. 01-3503
                                          ________________

                                   UNITED STATES OF AMERICA

                                                    v.

                                       ABDUL CROMMARTY,

                                                Appellant

                                         __________________

                           On Appeal From the United States District Court
                               For the Eastern District of Pennsylvania
                                     (D.C. No. 99-cr-00544-1)
                              District Judge: Honorable J. Curtis Joyner
                          _______________________________________

                                      Submitted March 13, 2003
                              Submitted Under Third Circuit LAR 34.1(a)

                          Before: BECKER, Chief Judge, Rendell and Ambro
                                         Circuit Judges.

                                        (Filed March 28, 2003 )

                                     _______________________

                                            OPINION
                                     _______________________

BECKER, Chief Judge.

        This is an appeal by defendant Abdul Crommarty from the judgment of the District

Court in a criminal case following a bargained-for guilty plea to a charge of carrying a
firearm by a convicted felon. Crommarty’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating, inter alia:

                Counsel has concluded that there are no non-frivolous issues for
        appeal in this matter and pursuant to Anders v. California, 386 U.S. 738
        (1967), has submitted the instant brief, which refers to those portions of the
        record that might arguably support the appeal and directs the Court to the
        relevant law.

        Having read the entire record, we agree with counsel that there are no non-frivolous

issues to raise on appeal. Judge Joyner’s plea colloquy was thorough and precise, and there

has been no suggestion of any problem with it. We acknowledge that the Anders brief is

terse. After setting forth the background, basic facts1, and procedural history, 2 it goes on to


  1
                         On or about June 11, 1999, Philadelphia police officers
                Cassidy #2342 and Mahalis #1943 observed a group of males
                drinking bee[r] on the corner of 1300 Chelten Avenue at
                approximately 4:34 p.m., as the officers approached in their
                vehicle, the group began to disperse. Officer Cassidy observed
                appellant, Abdul Crommarty, pull a silver handgun from his
                pocket and drop it to the ground. Appellant went north on Park
                Avenue and was followed by police where he was arrested at
                the rear of 6412 Park Avenue. The gun was recovered and
                placed on property receipt number 2207036.
  2
                        On September 8, 1999, a federal grand jury returned a
                one count indictment charging Abdul Crommarty with
                possession of a firearm by a convicted felon, in violation of 18
                U.S.C. Section 922(g)(1). At his arraignment on November 24,
                2000, appellant entered a plea of not guilty to the indictment.
                On May 3, 2001, appellant appeared before the Honorable J.
                Curtis Joyner and changed his plea to guilty to the one count
                indictment, pursuant to a written guilty plea agreement.
                Appellant was sentenced on August 28, 2001 to eighty-four
                (84) months imprisonment; three (3) years supervised release;
                a two hundred dollar ($200.00) [sic] fine and a one hundred-
                dollar ($100.00) special assessment.

                                                     2
state:




                         The appellant, Abdul Crommarty, asserts that the
                sentence imposed is illegal. Pursuant to U.S.S.G., Chapter
                Five, Part A, based on a total offense level of 21 and a criminal
                history category of VI, the guideline range for imprisonment is
                77 to 96 months. Appellant was sentenced to 84 months
                imprisonment. The $250.00 fine imposed is the least amount
                that can be imposed in his case. The Court may also impose a
                term of supervised release of not more than three years,
                pursuant to 18 U.S.C. Section 3583(b)(2). The Court denied
                additional downward departure under 5K2.0 and 5K2.13 in
                calculating the offense level. In light of these objections, the
                sentencing of appellant was within the proper guideline range.

Notwithstanding the terseness of the brief, our reading of the record reflects that the

succinct statements are accurate and does not suggest that there was more to say.

         Crommarty was given notice that, under the circumstances, he could file a pro se

brief, and he did so. The gravamen of the pro se brief is two-fold. First, Crommarty relates

his dissatisfaction with (Court appointed) counsel’s competence and attention to his case;

he also relates “irreconcilable difference” with counsel. In a related vein, Crommarty

alleges that counsel essentially abandoned him after sentencing (“leaving town”), so that he

had to file his own notice of appeal. Second, and more substantively, Crommarty contends

that counsel should have advanced additional grounds for downward departure, principally

diminished capacity as the result of a head injury sustained in an assault when he was young.3



   3
    The record reflects, however, that Judge Joyner must have been aware of it because it is
referenced in the presentence report. Moreover, the government’s sentencing
memorandum contains the following material:

                                                     3
        Whatever may be the merit of Crommarty’s claims, they sound in ineffective

assistance of counsel, which is not cognizable on direct appeal but only on a petition, which

Crommarty is free to file, under 28 U.S.C. § 2255. See United States v. Jake, 281 F.3d

123 (3d Cir. 2002). Under the circumstances, the appeal is wholly without merit. We will

therefore grant counsel’s request to withdraw, deny the motion by appellant for appointment

of new counsel, and affirm the judgment of the District Court.4




                D. The Defendant’s Request for a Downward Departure

                        The probation officer has notified the government that
                the defendant has filed a motion for a downward departure
                under Section 5K2.0 and 5K2.13, due the defendant’s
                diminished capacity caused by head injuries received during an
                assault at age 14. USSG §5K2.13. . . .
  4
   We also note our view that, because the issues presented in the appeal lack legal merit,
they do not require the filing of a petition for writ of certiorari with the Supreme Court. 3d
Cir. LAR 109.2(b)(2000).

                                                     4
TO THE COURT:

          Please file the foregoing opinion.




                                   / s/ Edward R. Becker
                                   Chief Judge




                                               5
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