                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2007

USA v. Shedrick
Precedential or Non-Precedential: Precedential

Docket No. 04-2329




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Shedrick" (2007). 2007 Decisions. Paper 654.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/654


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                      PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 04-2329


                UNITED STATES

                         v.

               JAMES SHEDRICK,

                                    Appellant


   Appeal from the United States District Court
      for the Eastern District of Pennsylvania
     (D.C. Criminal Action No. 02-cr-00523)
   District Judge: Honorable Legrome D. Davis


               Argued June 1, 2006
         Opinion Filed February 28, 2007
Panel Rehearing Granted and Vacated April 26, 2007

        Before: AMBRO, FUENTES, and
         GREENBERG, Circuit Judges

           (Opinion filed: July 19, 2007)
Peter A. Levin, Esquire (Argued)
1927 Hamilton Street
Philadelphia, PA 19103

      Counsel for Appellant

Patrick L. Meehan
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney
  Chief of Appeals
Thomas P. Hogan, Jr. (Argued)
  Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

      Counsel for Appellee




               OPINION OF THE COURT


AMBRO, Circuit Judge.

       James Shedrick appeals from the District Court’s denial
of his 28 U.S.C. § 2255 petition for habeas corpus alleging
ineffective assistance of counsel on two grounds. The


                              2
Government first contests our jurisdiction, however, because of
an appellate and collateral-review waiver contained in
Shedrick’s signed plea agreement. We conclude that we have
jurisdiction over this appeal relating to ineffective-assistance-of-
counsel claims; to hold otherwise could work a miscarriage of
justice. We next affirm the District Court’s denial of Shedrick’s
claim that his counsel was ineffective for failing to advise him
about sentencing matters, but conclude, contrary to the District
Court, that ineffectiveness of counsel prevented Shedrick from
timely appealing. Therefore, we vacate his sentence and remand
this case with directions for the District Court to re-enter it.
Shedrick will then be able to file a timely direct appeal, which
we will consider in the normal course.

I.     Factual and Procedural Background

       In the early morning of July 11, 2002, Philadelphia Police
Officers Keya Mason, Raymond Rutter, and Joy Gallen-Ruiz,
along with Sergeant Beverly Pembrook, were on patrol in
Philadelphia’s 12th District. Officer Mason responded to a 911
emergency call reporting a man with a gun located at 64th Street
and Greenway Avenue. Upon arriving at that address, Officer
Mason heard gun shots but did not see anyone in the area.

      Sergeant Pembrook also responded immediately to the
911 call and, like Officer Mason, did not find anyone at the
scene. After a short time, however, Pembrook observed a
man—later identified as Shedrick—standing in the middle of the

                                 3
intersection holding a large silver revolver in his right hand.
Pembrook made a priority radio call for back-up, stating that the
suspect was armed and not in custody.

        By that time, Mason had joined Pembrook. Officers
Rutter and Gallen-Ruiz, who were riding together, also arrived
at the scene. Pembrook and Mason stood in front of a police car
and attempted to engage Shedrick while Rutter and Gallen-Ruiz
began to approach him from covered positions behind parked
cars. The officers repeatedly instructed Shedrick to drop the
gun, but he refused. He pointed the gun at the sky and
attempted to fire three shots. The gun failed to discharge.

       The officers repeated their order for Shedrick to drop his
gun. He again aimed the gun upward and pulled the trigger
three more times. Yet again the gun failed to fire. Shedrick
then opened up the cylinder of the revolver, and empty shell
casings fell out of the weapon. When this occurred, the police
gang-tackled and disarmed him. Officer Rutter called in a report
indicating that Shedrick was in custody.

        Immediately after Shedrick was detained, the officers
were approached by Li Nguyen and Patricia Edwards. Nguyen
and Edwards stated that they had been in a van on their way to
work when Shedrick had appeared on the street and started
firing shots at their vehicle. One of the bullets struck the front
hood of the van. A second bullet penetrated the windshield and
traveled directly between Nguyen, who was driving, and

                                4
Edwards, who was in the front passenger seat. Nguyen and
Edwards reported that they went to a police station one block
away to report the shooting. When they returned to the spot
where the shooting had occurred, they witnessed the police
tackling Shedrick.

        The police traced the gun in Shedrick’s possession, a
Smith & Wesson .357 caliber revolver, to an individual named
Aki Brickhouse. Brickhouse was charged with, and pled guilty
to, transferring the weapon to a convicted felon (Shedrick). He
also asserted that Shedrick had been selling crack cocaine on a
regular basis from a location in West Philadelphia and had
carried the Smith & Wesson while dealing drugs.

       Shedrick was charged with being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). He signed a
written agreement with the Government, pleading guilty to that
charge and specifically admitting that (1) he possessed the
revolver, (2) he had a prior felony record,1 and (3) the revolver
had traveled in interstate commerce. However, Shedrick
vigorously contested any involvement in the van shooting (as
described by Nguyen and Edwards) and any drug dealing while


    1
     Shedrick pled guilty in October 2000 in the Philadelphia
Court of Common Pleas to possession with intent to deliver a
controlled substance (cocaine) and unlawful possession of an
unlicensed firearm.


                               5
armed with the revolver (as described by Brickhouse).

        The plea agreement expressly stated that Shedrick’s
maximum potential sentence was ten years’ imprisonment. It
went on to note that the Government was permitted to “make
whatever sentencing recommendation as to imprisonment . . .
[it] deems appropriate.” Indeed, both parties were “free to argue
the applicability of any other provision of the Sentencing
Guidelines, including offense conduct, offense characteristics,
criminal history, adjustments and departures.”

      The agreement also included a provision waiving not
only most appeals but also collateral attacks. It stated:

       10. In exchange for the undertakings made by the
       government in entering this plea agreement, the
       defendant voluntarily and expressly waives all
       rights to appeal or collaterally attack the
       defendant’s conviction, sentence, or any other
       matter relating to this prosecution, whether such
       a right to appeal or collateral attack arises under
       18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C.
       § 2255, or any other provision of law.

              a.     Notwithstanding the waiver
                     provision above, if the government
                     appeals from the sentence, then the
                     defendant may file a direct appeal

                               6
                    of his sentence.

             b.     If the government does not appeal,
                    then notwithstanding the waiver
                    provision set forth in paragraph 10
                    above, the defendant may file a
                    direct appeal but may raise only
                    claims that:

                    i.     the defendant’s sentence
                           ex ce e d s th e s ta tu to ry
                           maximum; or

                    ii.    the sentencing judge
                           erroneously departed
                           upward from the otherwise
                           applicable sentencing
                           guideline range.

      The District Court conducted a plea hearing in November
2002. During Shedrick’s guilty plea colloquy, the Court
confirmed and reinforced the terms of the written plea
agreement. At the outset of the hearing, the Court stated:

      And a plea agreement has been reached and it is
      recorded in writing and will be filed certainly at
      the end of this proceeding. But, most importantly,
      although the plea agreement states all of the

                              7
       agreements and understandings that exist between
       the defendant, defense counsel, and the
       Government, it does not recommend a set term of
       incarceration as binding upon this Court.
       Ultimately, the appropriate sentence would be left
       to the exercise of the Court’s discretion based
       upon information presented by both sides and
       based upon a review of the Sentencing
       Guidelines.

Later, the Court reiterated that the sentence would be left to its
discretion and that there were no “agreements with anyone about
what the right sentence should be.” Shedrick confirmed this
understanding. He also acknowledged that no other agreements
existed between himself and the Government except those
contained in the written plea agreement. The Court then made
clear to Shedrick that the maximum sentence in his case was ten
years’ incarceration. Shedrick did express some confusion
whether the facts alleged in the plea agreement included an
admission that he aimed or shot at police officers, prompting the
Court to clarify that he had only agreed to plead to the basic
facts of possessing the gun as a convicted felon and that any
other issues were left to the parties to argue at sentencing.

       After Shedrick entered his plea, the Probation Office
prepared a presentence report (“PSR”). It calculated Shedrick’s
base offense level at 20. It then recommended a four-level
enhancement under U.S. Sentencing Guidelines Manual

                                8
§ 2K2.1(b)(5) due to Shedrick’s prior felony conviction for a
controlled substance offense and a three-level deduction under
U.S.S.G. § 3E1.1 for acceptance of responsibility. Those
adjustments resulted in an offense level of 21 that, combined
with a criminal history category of III, yielded a Sentencing
Guidelines range of 46 to 57 months.

       Two weeks prior to sentencing, the Government filed a
memorandum with the District Court arguing that (1) Shedrick
was subject to a four-level enhancement for possessing a firearm
in connection with another felony offense (specifically, drug
dealing), and (2) the Court should depart upward eight levels
from the established Guidelines range because Shedrick had
discharged the weapon during the commission of his offense (by
shooting at a van occupied by two people). Shedrick objected.

       The District Court held a sentencing hearing during
which the potential enhancement for possession in connection
with another felony offense, as well as the upward departure for
shooting at the van, were contested. The Government called
two witnesses to provide a factual basis to support the
enhancement and departure: Brickhouse and Nguyen.

       Brickhouse testified that Shedrick had been selling
cocaine on a regular basis and that both Shedrick and his half-
brother, Tarik Robinson, had carried the Smith & Wesson
revolver while dealing drugs.



                               9
        Nguyen testified that he and Patricia Edwards were
driving to work in a red van at approximately 5:40 a.m. on the
date of Shedrick’s arrest, when a black man holding a silver
revolver started shooting at them. The Government provided
photographs to the District Court showing that bullets struck the
left front hood of the van and the mid-windshield, passing
between the two passengers. Nguyen recounted going to a
police station to report the shooting, returning to where it had
occurred, and witnessing the police tackling the man who had
shot at the van.2

        After Brickhouse’s and Nguyen’s testimony, Shedrick
testified to his version of events. He admitted that he had the
gun in his possession, but denied ever firing it. He also stated
that he did not know Brickhouse and had never seen Nguyen
prior to the sentencing hearing.

       The Government and defense counsel then engaged in
extended arguments about the enhancement and departure. The
defense contended that there was insufficient evidence to show
that Shedrick either had been dealing drugs or had fired the
shots that struck Nguyen’s van. Thus, it was the defense’s


  2
     Because Shedrick was wearing a black shirt when arrested,
it is notable that Nguyen testified that the shooter had been
wearing a white shirt. When confronted by that inconsistency,
Nguyen admitted that he had focused on the gun and could have
made a mistake about the color of the shooter’s shirt.

                               10
position that Shedrick should receive a sentence within the
standard Guidelines range—46 to 57 months.

       The Government, on the other hand, maintained that
because the evidence demonstrated that Shedrick had carried the
gun while dealing drugs (as testified to by Brickhouse) and that
Shedrick shot at the van (as testified to by Nguyen), both the
four-level enhancement and eight-level upward departure should
apply. It recommended to the Court a sentence of 100 months’
incarceration.3

       At the close of the hearing, the District Court found that
Brickhouse and Nguyen were credible witnesses and thus
applied the four-level enhancement and eight-level upward
departure. Accordingly, the Court sentenced Shedrick to 96
months’ incarceration to be followed by three years of
supervised release.

       The District Court appointed Shedrick new counsel for
purposes of appeal on July 31, 2003 (over five months after
sentencing), as Shedrick’s trial counsel had not filed an appeal.
On August 18, 2003 (approximately six months after
sentencing), his new counsel filed a motion for enlargement of
time to submit a notice of appeal nunc pro tunc. The District
Court denied the motion on August 27, 2003, and our Court


   3
    Application of both the four-level enhancement and eight-
level departure yielded a Guidelines range of 87 to 108 months.

                               11
dismissed the appeal as untimely on November 25, 2003.
Shedrick (through counsel) proceeded to file a 28 U.S.C. § 2255
habeas corpus petition in the District Court, which was denied.
He petitioned pro se our Court for a certificate of appealability,
which was granted for two issues: “whether counsel was
ineffective for failing to advise [Shedrick] of a possible upward
departure at sentencing; and whether counsel was ineffective for
filing an untimely appeal.” 4 Before we reach these issues,
however, we address the Government’s jurisdictional
contention.

II.       Jurisdiction

        According to the Government, the appeal and collateral
attack waiver contained in Shedrick’s written plea agreement
strips our jurisdiction. Not so. In United States v. Khattak, we
joined the courts of appeals for ten other circuits and held that
“[w]aivers of appeal, if entered into knowingly and voluntarily,
are valid, unless they work a miscarriage of justice.” 273 F.3d
557, 563 (3d Cir. 2001). Though Khattak went on to say that, if
a waiver is valid, “we have no jurisdiction to consider the merits
of [an] appeal,” id., we recently clarified that statement, see
United States v. Gwinnett, 483 F. 3d 200, 201–03 (3d Cir. 2007).
“[N]otwithstanding the statement in Khattak, this [C]ourt retains
jurisdiction over the appeal by a defendant who ha[s] signed an


      4
    We also appointed Shedrick new counsel to pursue this
appeal.

                               12
appellate waiver.” Id. at 203. This does not undermine the
practical bite of such waivers, however. For as stated in both
Khattak and Gwinnett, “we will not exercise [our] jurisdiction
to review the merits of [a defendant’s] appeal if we conclude
that she knowingly and voluntarily waived her right to appeal
unless the result would work a miscarriage of justice.” Id. at
203; Khattak, 273 F.3d 562–63. In short, we have jurisdiction
over this case, but will generally not exercise it absent
compelling reasons.

        At first glance, it does appear that Shedrick waived his
right to appeal and collaterally attack his sentence in paragraph
10 of the plea agreement. However, the agreement goes on to
state that an appeal is preserved if any of three conditions
occurs. They are, to repeat, (1) a Government appeal, (2) a
sentence exceeding the statutory maximum, or (3) an erroneous
upward departure from the otherwise applicable Sentencing
Guidelines range.

        It is undisputed that the first two predicates do not apply
here; the Government did not appeal, and Shedrick’s sentence
of 96 months’ imprisonment does not exceed the statutory
maximum of ten years. Shedrick maintains, however, that the
third condition applies. Specifically, he argues that the evidence
was not sufficient to support the District Court’s conclusion that
he discharged his gun, which was the basis of the Court’s eight-




                                13
level upward departure.5 He further argues that ineffective
assistance of counsel prevented him from timely appealing this
allegedly erroneous departure.

        The Government, on the other hand, claims that Shedrick
“is not arguing that the Court erroneously granted an upward
departure, but merely is arguing that counsel was ineffective for
allegedly not informing him that the potential for an upward
departure existed.” Gov’t Br. at 28. We disagree. At its
essence, Shedrick’s argument is that, as a result of counsel’s
deficient performance, he (1) failed to understand the full effect
of his guilty plea as it related to upward departures, and (2)
failed timely to appeal the District Court’s upward departure,
which he was entitled to appeal under the express terms of the
plea agreement waiver. Enforcing a collateral-attack waiver
where constitutionally deficient lawyering prevented Shedrick

  5
   Shedrick’s brief mistakenly lumps together his enhancement
and his upward departure. An “enhancement” is an adjustment
to the base offense level as specifically provided by the
Guidelines, whereas an “upward departure” is a discretionary
adjustment to the Guidelines range once calculated. After
United States v. Booker, 543 U.S. 220 (2005), the difference is
now represented in the distinction between steps one and two as
set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.
2006). While Shedrick has a right to appeal the District Court’s
upward departure under his plea waiver, the literal words of that
waiver make clear that he has no concomitant right to appeal the
enhancement.

                               14
from understanding his plea or from filing a direct appeal as
permitted by his plea agreement would result in a miscarriage of
justice.6 In this context, we will exercise our jurisdiction to
consider Shedrick’s ineffective-assistance-of-counsel claims.




     6
      Our decision in Khattak left the miscarriage-of-justice
determination open-ended, depending on various factors
identified in United States v. Teeter, 257 F.3d 14, 25–26 (1st
Cir. 2001), e.g., how clear and grave an error existed, the effect
of that error on the parties, and the extent to which the defendant
acquiesced in the error. Khattak, 273 F.3d at 563. We noted,
however, that the Seventh Circuit Court of Appeals has
specifically held that ineffective assistance of counsel qualifies
as a miscarriage of justice sufficient to overcome a waiver-of-
appeal provision. Id. at 562 (citing United States v. Joiner, 183
F.3d 635, 645 (7th Cir. 1999)); see also United States v.
Poindexter, No. 05-7635, ___ F.3d ___, 2007 WL 1845119, at
*2–8 (4th Cir. June 28, 2007); United States v. Tapp, No. 05-
30222, ___ F.3d ___, 2007 WL 1839277 (5th Cir. June 28,
2007); Campusano v. United States, 442 F.3d 770, 773–77(2d
Cir. 2006); Gomez-Diaz v. United States, 433 F.3d 788, 791–94
(11th Cir. 2005); United States v. Sandoval-Lopez, 409 F.3d
1193, 1195–99 (9th Cir. 2004); United States v. Garrett, 402
F.3d 1262, 1264–67 (10th Cir. 2005); Teeter, 257 F.3d at 25 n.9;
United States v. Hernandez, 242 F.3d 110, 113–14 (2d Cir.
2001); United States v. Jemison, 237 F.3d 911, 916 n.8 (7th Cir.
2001).

                                15
III.   Merits

       A.     Ineffectiveness of Counsel for Failure to Advise

          Shedrick first argues that he received ineffective
assistance of counsel during his plea process as a result of
counsel’s failure to advise him about a potential enhancement or
upward departure at sentencing. According to Shedrick, a
“fundamental consideration for [him] in determining whether
. . . to accept the guilty plea was the length of sentence he could
expect to receive.”

        Under the two-part test of Strickland v. Washington, 466
U.S. 668, 687 (1984), Shedrick must demonstrate that his
attorney’s performance was deficient and that he was prejudiced
by the deficiency. That is, he must prove that counsel’s
performance “fell below an objective standard of
reasonableness,” id. at 688, and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.

       Shedrick cannot satisfy these requirements. Indeed, we
have long held that an erroneous sentencing prediction by
counsel is not ineffective assistance of counsel where, as here,
an adequate plea hearing was conducted. See, e.g., United
States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (counsel not
ineffective for allegedly promising defendant a sentence of “no
more than 71 months” where defendant was advised in open-

                                16
court colloquy of potential maximum sentence and there were
no other promises regarding sentence); United States v. Mustafa,
238 F.3d 485, 492 (3d Cir. 2001) (“[A]ny alleged
misrepresentations that [defendant’s] former counsel may have
made regarding sentencing calculations were dispelled when
[defendant] was informed in open court that there was no
guarantee as to sentence, and that the court could sentence him
to the maximum.”); Masciola v. United States, 469 F.2d 1057,
1059 (3d Cir. 1972) (per curiam) (holding that “[a]n erroneous
prediction of a sentence by defendant’s counsel does not render
a guilty plea involuntary” where record demonstrates that a
proper plea colloquy took place during which defendant
acknowledged that he was aware of his maximum potential
sentence). As stated in Mustafa,

       [w]e recognize that the maximum sentence
       authorized by law is often so extraordinarily long
       that few defendants other than “career criminals”
       plead guilty with the expectation that the
       maximum sentence applies to them. However, all
       that the law requires is that the defendant be
       informed of his/her exposure in pleading guilty.
       The law does not require that a defendant be
       given a reasonably accurate “best guess” as to
       what his/her actual sentence will be; nor could it,
       given the vagaries and variables of each
       defendant’s circumstances and offending
       behavior.

                               17
238 F.3d at 492 n.5.

        This case falls well within well-established precedent:
defense counsel’s conjectures to his client about sentencing are
irrelevant where the written plea agreement and in-court guilty
plea colloquy clearly establish the defendant’s maximum
potential exposure and the sentencing court’s discretion.
Shedrick’s written, signed agreement stated that (1) he faced a
maximum potential sentence of ten years’ incarceration, (2) the
parties were free to argue any other sentencing issues (explicitly
including departures), (3) the District Court retained ultimate
discretion over the sentence, and (4) there were no other
agreements or promises regarding Shedrick’s potential sentence.

        The District Court repeated these facts in open court,
starting the guilty plea colloquy by confirming with Shedrick
that

       most importantly, although the plea agreement
       states all of the agreements and understandings
       that exist [among] the defendant, defense counsel,
       and the Government, it does not recommend a set
       term of incarceration as binding upon this Court.
       Ultimately, the appropriate sentence would be left
       to the exercise of the Court’s discretion based
       upon information presented by both sides and
       based upon a review of the Sentencing
       Guidelines.

                               18
It then confirmed that Shedrick (1) had read, signed, and fully
understood the plea agreement, (2) understood that there were
no other promises regarding his potential sentence, and (3) had
admitted the facts of the crime. The Court further advised
Shedrick that the maximum potential sentence was ten years’
incarceration and repeated that it retained full discretion over the
ultimate sentence.

       Here, any erroneous sentencing information allegedly
provided by defense counsel was corrected by the written plea
agreement and the detailed in-court plea colloquy, both of which
accurately stated Shedrick’s potential sentence. Given this
record, it is inconceivable that Shedrick did not know he
potentially faced a maximum ten-year prison term. In fact, his
allegations before our panel are flatly inconsistent with his
written, signed plea agreement, as well as his sworn, in-court
answers during his plea colloquy. Accordingly, the District
Court correctly denied Shedrick’s § 2255 motion as to his claim
that counsel was ineffective for failing to advise him of the
potential for an enhancement or upward departure.7


    7
      With regard to his failure-to-advise argument, Shedrick
relies heavily on one case—Meyers v. Gillis, 142 F.3d 664 (3d
Cir. 1998)—to advance his claim that bad sentencing
information provided by a defense lawyer equals ineffective
assistance of counsel. Meyers involved a habeas proceeding
from a state court guilty plea. The defendant had pled guilty to
second degree murder, which carried a mandatory life sentence

                                19
       B.     Ineffectiveness of Counsel for Failure to Appeal
              Timely

       Shedrick’s second contention is that his counsel was
ineffective for failing to file a timely appeal in this case. In
resolving this claim, we are guided by the Supreme Court’s


with no chance of parole. Nonetheless, the defendant was
misinformed by counsel that he would be eligible for parole in
seven years. At his guilty plea, the defendant was repeatedly
informed that he would become eligible for parole. Incredibly,
that advice was never corrected by the prosecutor or the state
trial court. We held that Meyer’s counsel was ineffective and
reversed his life sentence.
        Meyers is readily distinguishable from the case before us.
The former involved review of a state court proceeding lacking
a detailed guilty plea agreement and the equivalent of a Rule 11
guilty plea colloquy. More importantly, the trial court in Meyers
failed to correct the erroneous sentencing information provided
on the record by defense counsel. In sharp contrast, the District
Court here corrected any alleged misperception by Shedrick
about his potential sentence by accurately informing him that his
maximum prison sentence was ten years and that the Court had
the discretion to sentence him up to that maximum. See
Scarbrough v. Johnson, 300 F.3d 302, 303–04, 306 (3d Cir.
2002) (distinguishing Meyers and finding no error where
defense counsel misinformed defendant that he was eligible for
parole but the court repeatedly and correctly informed defendant
that his penalty was an “automatic life sentence” with no chance
of parole).

                               20
decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000). There,
the Court addressed whether counsel may be found deficient for
failing to file a notice of appeal absent specific instruction from
the defendant not to do so. Because the question concerned
whether counsel’s representation was constitutionally defective,
the Court held that the two-part Strickland test governed its
inquiry. Id. at 476–77. Applying that standard to the particular
facts before it, the Court held that “counsel has a constitutionally
imposed duty to consult with the defendant about an appeal
when there is reason to think either (1) that a rational defendant
would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id. at 480. The Court further
explained that it “employ[ed] the term ‘consult’ to convey a
specific meaning—advising the defendant about the advantages
and disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant’s wishes.” Id. at 478.
Additionally, the Court instructed that courts undertaking this
inquiry, as with all ineffective-assistance claims, “take into
account all the information counsel knew or should have
known.” Id. at 480 (citing Strickland, 466 U.S. at 690).

       With respect to Strickland’s prejudice prong, the Court
held that the harmless-error inquiry applied and that relief could
not be granted unless the defendant “demonstrate[s] that there
is a reasonable probability that, but for counsel’s deficient
failure to consult with him about an appeal, he would have

                                21
timely appealed.” Id. at 484. The Court did not identify any
determinative factors in this regard, but did stress that “evidence
that there were non-frivolous grounds for appeal or that the
defendant at issue promptly expressed a desire to appeal will
often be highly relevant.” Id. at 485.

        A review of the record here reveals that Shedrick
“reasonably demonstrated to [his] counsel that he was interested
in appealing” by vehemently contesting the factual issues that
led to his upward departure throughout the District Court
proceedings. See Gov’t Br. at 18 (acknowledging that Shedrick
“hotly contested” the factual issues leading to his upward
departure both prior to and during his sentencing proceedings);
see also Appellant’s App. at 78–79 (demonstrating that
Shedrick, during his plea colloquy and prior to pleading guilty,
specifically ensured that he was not conceding any involvement
in the van shooting incident or any attempt to fire the weapon at
police).     In this context, Shedrick’s counsel had “a
constitutionally-imposed duty to consult with” him concerning
a possible appeal. Flores-Ortega, 528 U.S. at 480; see id. at 481
(“We expect that courts evaluating the reasonableness of
counsel’s performance using the inquiry we have described will
find, in the vast majority of cases, that counsel had a duty to
consult with the defendant about an appeal.”).

       The Government argues that Shedrick “makes no
allegation that he ever directed counsel to [file an appeal].”
Gov’t Br. at 58. Indeed, Shedrick’s habeas counsel wrote in his

                                22
brief to our Court that “[t]he record does not indicate that [trial]
counsel had any discussion with [Shedrick] regarding an appeal.
It is also unclear whether [Shedrick] specifically asked [his
counsel] to file an appeal.” Appellant’s Br. at 17. We are
uncertain why such comments were made in light of Shedrick’s
explicit statement in a letter to the District Judge, dated February
26, 2003 (before the appeal deadline had passed), that he had
asked his counsel to file an appeal on his behalf. Upon receipt
of this letter, the Judge’s chambers specifically informed
counsel for Shedrick of his desire to appeal by leaving a
message on counsel’s phone. Nevertheless, Shedrick’s counsel
took no action to effect an appeal.

        In sum, the record clearly reflects Shedrick’s counsel’s
deficient representation. There is no indication in the record
that he consulted with Shedrick post-sentencing as required by
Roe-Ortega. In fact, Shedrick expressly wrote to the District
Judge that his counsel failed to consult with him during the
appeal period. Moreover, even if counsel did so, there is little
question he was ineffective in failing to file a timely appeal, as
Shedrick had stated that he wished to appeal while that option
was available. Under these circumstances, it is not necessary for
us to remand this case to the District Court for a factual finding
that counsel either did or did not consult with Shedrick; counsel
was deficient either way.8


    8
    Cf. Poindexter, 2007 WL 1845119, at *8 (remanding for
evidentiary hearing on whether the defendant instructed his

                                23
       C.     Remedy

        Because Shedrick was prevented from filing a timely
appeal challenging his upward departure, we must figure out
what to do about it. The answer is not obvious, for the law
governing federal sentencing has changed significantly since the
time Shedrick was sentenced in 2003. We will not recount the
details of those changes here, as they have been amply described
and extensively examined in other decisions by our Court. See,
e.g., United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en
banc); United States v. Gunter, 462 F.3d 237 (3d Cir. 2006);
United States v. Cooper, 462 F.3d 237 (3d Cir. 2006); United
States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc). Suffice
it to say that the Guidelines, which were mandatory at the time
of Shedrick’s sentencing, are now only “effectively advisory.”
Booker, 543 U.S. at 245. This change in the law has required us
to deal with several problems for cases in which sentences were
imposed before Booker but were on appeal when that decision
came down.

      Generally, we have adopted a broad remand policy for
cases on direct appeal from sentences imposed under the
mandatory Guidelines. See Davis, 407 F.3d at 164–66. But that



attorney to file a notice of appeal); Tapp, 2007 WL 1839277
(same); Campusano, 442 F.3d at 777 (same); Gomez-Diaz, 433
F.3d at 794 (same); Sandoval-Lopez, 409 F.3d at 1198–99
(same); Garrett, 402 F.3d at 1267 (same).

                              24
policy is not necessarily applicable when it comes to cases
involving appellate waivers. Most relevant here, we held in
United States v. Lockett, 406 F.3d 207, 213–14 (3d Cir. 2005),
that Booker neither entitles a defendant to withdraw his guilty
plea nor to an unfettered right to re-sentencing under an
advisory scheme if he has waived his right to appellate review
as part of his plea bargain. “[W]here subsequent developments
in the law expand a right that a defendant has waived in a plea
agreement, that change does not make the plea involuntary or
unknowing or otherwise undo its binding nature.” Id. at 213.9

       Lockett’s relevance to this case is somewhat unclear,
though. There, the defendant had “ask[ed] us to invalidate his
sentence because he did not know at the time he pleaded guilty
that the Supreme Court would later hold that the Sentencing
Guidelines are advisory.” Id. Here, in contrast, the record
demonstrates that Shedrick’s concern at the time of his sentence
was the propriety of his eight-level upward departure, as
explained in the previous section. That argument is specifically
permissible under the terms of Shedrick’s plea agreement and is
not affected by Lockett.

        But despite its presence in all of the ineffective-


    9
      This is all the more true in habeas proceedings raising
Booker-related claims, as we have held that Booker’s effect is
not retroactive on habeas review. See Lloyd v. United States,
407 F.3d 608 (3d Cir. 2005).

                              25
assistance-of-counsel discussion, Shedrick oddly does not make
an argument with respect to whether his upward departure was
proper. Instead, the only argument raised in his brief before us
with regard to the merits of the departure is that the District
Court (rather than a jury) found facts using a preponderance-of-
the-evidence (rather than beyond-a-reasonable-doubt) standard,
thus causing him to be sentenced higher than the statutory
maximum as construed in Blakely v. Washington, 542 U.S. 296,
303–04 (2004) (“[T]he relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional
facts, but the maximum he may impose without any additional
findings.”).    This Blakely-based contention is a Sixth
Amendment argument that was waived as part of Shedrick’s
plea agreement and, under Lockett, is a nonstarter.

       The above discussion aside, we consider it the better part
of prudence not to address the substance of Shedrick’s
underlying sentence. Instead we will follow the usual course in
cases of this nature: vacate and remand for re-entry of the initial
sentence so that there can be a timely appeal. See United States
v. Hadden, 475 F.3d 652, 661 n.8 (4th Cir. 2007) (citing United
States v. Torres-Otero, 232 F.3d 24, 30–31 (1st Cir. 2000);
United States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000); In re
Goddard, 170 F.3d 435, 436 (4th Cir. 1999); United States v.
Peak, 992 F.2d 39, 42 (4th Cir. 1993)); see also Spence v.
United States, 68 Fed. Appx. 669, 676 (6th Cir. 2003); Garcia
v. United States, 278 F.3d 134, 138 (2d Cir. 2003). This will put
Shedrick in the same position he would have been in if he had


                                26
had effective assistance of counsel. Moreover, it will give him
the opportunity properly to raise the issue that he had previously
expressed a desire for this Court to review and which he
explicitly preserved in his plea agreement and colloquy: the
propriety of his upward departure.

IV.    Conclusion

        For the reasons explained above, we have jurisdiction
over this appeal involving ineffective-assistance-of-counsel
claims. We proceed to affirm the District Court’s denial of
Shedrick’s § 2255 petition concerning the claim that his counsel
was ineffective for failing to advise him as to the potential for
an enhancement or upward departure. However, Shedrick has
demonstrated that his counsel was ineffective under Roe-Ortega
for failing to assist him in his right to appeal. We thus reverse
the Court’s denial of Shedrick’s § 2255 petition on this claim.
In so doing, we vacate Shedrick’s sentence and remand to the
District Court with instructions to re-enter it, thus giving him the
opportunity timely to appeal on the narrow ground allowed by
his plea agreement.




                                27
