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


7-21-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1736




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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                      No. 02-1736
                                   ________________

                              UNITED STATES OF AMERICA


                                             v.

                                  MELISSA G. BAILEY,

                                             Appellant

                          ________________________________

                      On Appeal From the United States District Court
                                 For the District of Delaware
                              (D.C. Crim. No. 00-cr-00023-2)
                        District Judge: Honorable Gregory M. Sleet
                      _______________________________________

                        Submitted Under Third Circuit LAR 34.1(a)
                                   December 15, 2003

           Before:      ROTH, M CKEE AND ROSENN, CIRCUIT JUDGES

                                  (Filed : July 21, 2004)

                               _______________________

                                      OPINION
                               _______________________


Roth, Circuit Judge

      Appellant Melissa Bailey appeals the judgment of sentence entered in the United
States District Court for the District of Delaware on March 5, 2002. Bailey pleaded guilty

to conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 (Count II), and

embezzlement by a bank employee in violation of 18 U.S.C. § 656 (Count IV). The

District Court sentenced her to 60 months imprisonment on Count II, and 87 months

imprisonment on Count IV, with the sentences to run concurrently.

       Bailey raises two issues on appeal. First, she claims that counsel was ineffective

for failing to object to the loss figure applied by the District Court in calculating the

applicable guideline range on Count IV. Second, Bailey argues that the District Court

abused its discretion in refusing to grant a downward departure. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and will affirm.

       In general, we will not entertain a defendant’s claim of ineffective assistance of

counsel on direct appeal unless we have a sufficient record on appeal to decide the issue.

See United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003); see also Massaro v.

United States, 123 S.Ct. 1690, 1696 (2003) (declining to hold that ineffective assistance

of counsel claims must be reserved for collateral review). We agree with both parties that

the record is sufficient to resolve the issue in this case. To establish ineffective assistance

of counsel, Bailey must show that counsel’s performance was deficient and that the

deficient performance prejudiced her. See Strickland v. Washington, 466 U.S. 668, 687

(1984). This she cannot do.

       Bailey claims that counsel was ineffective for failing to object to a loss amount set



                                               2
forth in the Presentence Investigation Report (PSR) with respect to Count IV. As a result,

Bailey claims that her Total Offense Level was increased from 28 to 29, resulting in a

higher sentence.1 However, counsel’s alleged error had no impact whatsoever on the

District Court’s sentencing guideline calculation. As set forth above, Bailey pleaded

guilty to two counts: Count II, conspiracy to commit robbery, and Count IV,

embezzlement. The counts were grouped separately. The calculation on Count II

resulted in an adjusted offense level of 32. The allegedly erroneous calculation on Count

IV resulted in an adjusted offense level of 15. Because the offense level on Count IV was

more than nine levels lower than that for Count II, the score on Count IV was

disregarded for purposes of calculating the final offense level. See U.S.S.G. § 3D1.4(c).

Therefore, the combined total offense level was based solely on the uncontested

calculation for Count II. Counsel’s alleged error thus did not prejudice Bailey. See

Strickland, 466 U.S. at 687.

       Bailey’s second claim is that the District Court erred in refusing to grant a

downward departure. We lack jurisdiction to review the District Court’s discretionary

decision to not depart. See United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir.1996) (a




       1
          Specifically, Bailey claims that in her plea agreement, with respect to Count IV,
she pleaded guilty to embezzling “approximately $100,000.” The PSR noted that Bailey
had initially indicated that she had embezzled approximately $150,000, and thus
increased the offense level on Count IV by nine levels because Bailey had embezzled
between $120,000 and $200,000. Had Bailey embezzled less than $120,000, the increase
in the offense level would have been less.

                                              3
court of appeals “lack[s] jurisdiction to review a refusal to depart downward when the

district court, knowing it may do so, nonetheless determines that departure is not

warranted”). Bailey claims, however, that we have jurisdiction over this claim because

the District Court based its decision upon materially false information and thus the

sentence was imposed in violation of the law. See United States v. Torres, 251 F.3d 138,

151 (3d Cir. 2000). A review of the record shows that the District Court did not base its

decision upon materially false information. The District Court’s interpretation of the

facts merely differed from Bailey’s. In this case, the District Court reviewed the facts and

concluded that they did not warrant a downward departure. A clearly discretionary

determination by the District Court is not reviewable. See United States v. Sally, 116

F.3d 76, at 78 (3d Cir.1997). To the extent that Bailey claims that the District Court did

not adequately analyze the evidence when considering the government’s departure

motion, the claim lacks merit. In declining to depart, the District Court conducted an

individualized examination of Bailey’s substantial assistance and acknowledged the

factors enumerated in U.S.S.G. § 5K1.1. See Torres, 251 F.3d at 147 (explaining duty of

sentencing judge).

       For the reasons set forth above, we will affirm the judgment of sentence.




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