                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-1-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3090




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-3090


                          UNITED STATES OF AMERICA

                                           v.

                                MAJOR LEE RUFFIN,
                                             Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                              D.C. Crim. 04-cr-00422
                 District Judge: The Honorable Freda L. Wolfson


                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 9, 2006


               Before: BARRY, SMITH and ALDISERT, Circuit Judges


                             (Opinion Filed: June 1, 2006 )


                                       OPINION




BARRY, Circuit Judge

      Major Lee Ruffin appeals his conviction and sentence. Ruffin’s counsel has filed

a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), claiming
that there are no nonfrivolous grounds for appeal. Ruffin has chosen not to file a pro se

brief. We will affirm Ruffin’s conviction and sentence, and grant counsel’s motion to

withdraw.

                                             I.

       On March 28, 2003, Ruffin was arrested after arriving at a motel where he had

arranged to sell drugs to a confidential informant. The police seized 63.4 grams of crack

cocaine from Ruffin’s car. Ruffin pled guilty on February 10, 2005 to one count of

conspiracy to distribute and possession with intent to distribute cocaine. At sentencing,

the District Court rejected the two-level increase in the offense level recommended in the

Presentence Investigation Report for Ruffin’s managerial or supervisory role in the

offense, granted a three-level decrease in the offense level for acceptance of

responsibility, and found that Ruffin should be accorded the benefits of a two-level

decrease by virtue of the safety valve provision of the U.S. Sentencing Guidelines, which

further allowed him to be sentenced below the mandatory minimum ten-year sentence.

The Court sentenced Ruffin to 70 months imprisonment, the lowest possible term under

the applicable Guidelines range of 70-87 months.

                                             II.

       “[W]here, upon review of the district court record, trial counsel is persuaded that

the appeal presents no issue of even arguable merit, trial counsel may file a motion to

withdraw and supporting brief.” 3d Cir. LAR Misc. 109.2(a). In reviewing that motion



                                             2
to withdraw, we must determine “(1) whether counsel adequately fulfilled the rule’s

requirements; and (2) whether an independent review of the record presents any

nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citations

omitted).

                                             A.

       We must be satisfied “that counsel has thoroughly examined the record in search

of appealable issues” and has “explain[ed] why the issues are frivolous” in his or her

Anders brief. Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). Our

review convinces us that Ruffin’s counsel searched the record and presented all possible

grounds for appeal. Indeed, after counsel informed Ruffin that he could find no

nonfrivolous issues for appeal, Ruffin suggested four possible issues, which counsel

explored in his brief, and which we will address.

                                             B.

       When conducting an independent review of the trial court record, we “confine our

scrutiny to those portions of the record identified by an adequate Anders brief.” Id. at

301. The four issues raised by Ruffin’s counsel are: (1) the soundness of Ruffin’s guilty

plea; (2) whether Ruffin was entitled to a jury trial on the issue of Guidelines sentencing

enhancements; (3) whether the District Court properly counted Ruffin’s prior conviction

for possession of cocaine when computing his criminal history category; and (4) whether

Ruffin’s prior counsel was ineffective.



                                             3
       As to the first issue, a guilty plea must be “a voluntary and intelligent choice

among alternative courses of action.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting

North Carolina v. Alford, 400 U.S. 25, 31 (1970)). The record leaves no doubt that

Ruffin’s plea was knowing and voluntary. His signature appears on his application for

permission to enter a plea of guilty and on his plea agreement, which he had ample time

to review with counsel. The plea colloquy was thorough, with Ruffin stating that he was

not under the influence of any drugs or alcohol and indicating his understanding of the

significance of the rights he was surrendering and the ramifications of his guilty plea.

       Second, Ruffin was not entitled to a jury trial on Guidelines sentencing

enhancement issues. Aside from the fact that United States v. Booker, 543 U.S. 220

(2005), created no such right, Ruffin did not receive any enhancement and admitted all of

the facts upon which his sentence was based.

       Third, Ruffin’s October 2000 conviction for cocaine possession, for which he

received two years probation, was properly considered in determining his criminal history

category. Any probationary sentence “that was imposed within ten years of the

defendant’s commencement of the instant offense is counted” in computing the

defendant’s criminal history. U.S.S.G. § 4A1.2(e)(2). The instant offense was committed

on March 28, 2003, not even three years after the previous offense.

       Finally, Ruffin asserts that he received ineffective assistance of counsel from the

attorney who represented him during his change of plea hearing. Prior to that hearing,



                                              4
Ruffin informed the District Court that he wished to discharge that attorney, but then

changed his mind, and submitted a letter to the Court during the hearing expressing his

satisfaction with the attorney’s representation of him. For reasons unclear in the record,

his current attorney, who now seeks to withdraw, took over the representation at some

point between the change of plea hearing and the sentencing hearing. Regardless of what

formed the basis of Ruffin’s initial, and now current, dissatisfaction with his first

attorney, his ineffective assistance claim is premature, because such claims must

ordinarily be raised in a collateral attack pursuant to 28 U.S.C. § 2255, and not on direct

appeal. United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002).

                                             III.

       We are satisfied that counsel has thoroughly examined the record in search of

appealable issues and has explained why any such issues are frivolous. Our own

independent review of the record reveals no nonfrivolous issues. Therefore, we will

affirm the judgment of conviction and the sentence, and we will grant counsel’s motion to

withdraw.




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