                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 00-1216




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"USA v. Padilla" (2002). 2002 Decisions. Paper 427.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/427


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 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                   NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No. 00-1216


                    UNITED STATES OF AMERICA,
                                        Appellee
                                v.

                          DAVID PADILLA,
                                         Appellant
                                                ____________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                   (D.C. Crim. No. 96-cr-606)
          District Judge:   Honorable Charles R. Weiner
                           ____________

           Submitted Under Third Circuit L.A.R. 34.1(a)
                          July 16, 2002
        Before:   McKEE, WEIS, and DUHı,* Circuit Judges.

                    Filed: July 23, 2002
                           ____________

                              OPINION




___________________________

          *The Honorable John M. Duh, Jr., United States Circuit Judge for the
Fifth Circuit Court of Appeals, sitting by designation.
WEIS, Circuit Judge.
          Petitioner David Padilla has filed this section 2255 motion raising three
issues:
                         1.   The District Court lacked jurisdiction to enhance his sentence
               because his prior two convictions were not "final" at the time of the
               indictment in this case;

                         2.   No evidence was presented that Padilla "carried" a firearm in
               conjunction with a drug trafficking crime; and

                         3.   Appellate counsel on direct appeal was ineffective in failing to
               challenge the validity of the prior convictions and their use as
               enhancement. Moreover, the petitioner asserts that counsel failed to
               contest the "carrying of a firearm."

          The District Court found that the prior convictions under 21 U.S.C.
841(a)(1) were obtained more than five years previous to the current indictment and,
therefore, were not subject to challenge under 21 U.S.C. 851(e). The Court also
concluded that because Padilla knew of the presence of guns in a secret compartment in
the van he was driving to deliver cocaine, the "carrying" element of 18 U.S.C. 924(c)
had been satisfied. Finally, the District Court held that the defendant’s counsel was not
ineffective for failing to raise the section 851(e) and section 924(c) claims because the
Court ultimately found no merit in those arguments.
          Padilla was indicted in December 1996 and convicted of various drug
offenses in 1997. He was sentenced to life imprisonment plus five years based on two
prior drug convictions and his carrying a firearm during a drug trafficking offense. The
conviction was affirmed by this Court on January 14, 1999, No. 97-1983. In that appeal,
defendant challenged only the statements he made after the police had stopped his
vehicle. We did note in that case, however, that Padilla had motions pending contesting
the validity of the two prior convictions used for sentence enhancement.
          21 U.S.C. 851 applies to enhancement of sentences. Specifically, it
provides that a conviction occurring more than five years before the then-current
indictment may not be challenged. 21 U.S.C. 851(e).
          Here, the defendant’s first prior conviction had occurred in April 1987.
Although the sentence had originally been suspended, his probation was revoked on July
18, 1988, and the defendant was sentenced to three years imprisonment because of a
second drug conviction. Defendant subsequently filed a section 2255 petition in 1997,
which was denied in 1999. A request for a certificate of appeal on this petition was
denied.
          The second prior conviction occurred on June 15, 1988. Defendant was
sentenced to five years imprisonment with six years of supervised release. In April 1997,
defendant filed a section 2255 petition asserting that according to the plea bargain, the
supervised release was not to exceed three years. In August 1999, the District Court
reduced the supervised release to three years. A request for a certificate of appeal from
this ruling was denied.
          Defendant contends that because section 2255 petitions were pending at the
time of the indictment in the case presently before us, they could not be considered prior
final convictions for enhancement purposes under 21 U.S.C. 851. Consequently,
defendant asserts that the District Court lacked jurisdiction to impose an enhanced
sentence.
          In United States v. Allen, 566 F.2d 1193, 1195 (3d Cir. 1977), we
construed the word "final" in section 841 as "the conclusion of direct appellate review."
Hence, the pending section 2255 petitions did not deprive the prior convictions of
finality because his direct appeals had been concluded. In addition, the reduction of the
supervised release term did not affect the validity of the second conviction. Even if the
supervised release had been entirely eliminated, the conviction would nevertheless have
been final.
          The District Court was also correct in finding that defendant was
"carrying" a gun under the terms of section 924(c). In Muscarello v. United States, 524
U.S. 125, 126-27 (1998), The Supreme Court held that the phrase "carries a firearm" is
not limited to having a gun on the person; rather, it also "applies to a person who
knowingly possesses and conveys firearms in a vehicle, including in the locked glove
compartment or trunk of a car, which the person accompanies.")

          Furthermore, the claim of ineffective assistance of counsel also fails
because the points that counsel did not raise were not valid in any event. See Strickland
v. Washington, 466 U.S. 668, 691-92 (1984) ("[A]ny deficiencies in counsel’s
performance must be prejudicial to the defense in order to constitute ineffective
assistance under the Constitution.").
          Accordingly, the judgment of the District Court will be affirmed.   ________________

TO THE CLERK:

          Please file the foregoing Opinion.



                              _/s/ Joseph F. Weis Jr.____
                              United States Circuit Judge
