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


7-29-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4470




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"USA v. Carston" (2004). 2004 Decisions. Paper 455.
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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-4470


                          UNITED STATES OF AMERICA

                                          v.

                            TROY DONYEH CARSTON,
                                         Appellant


                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 02-cr-00012)
                     District Judge: Honorable Harvey Bartle, III


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 13, 2004

              Before: RENDELL, BARRY and FISHER, Circuit Judges.

                                 (Filed July 29, 2004)


                             OPINION OF THE COURT


RENDELL, Circuit Judge.

      Troy Donyeh Carston was charged with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He pled guilty on December 3, 2002. Subsequently,

he was sentenced to 54 months imprisonment to be followed by three years of supervised
release. Carston filed a pro se appeal. Counsel was appointed and has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), requesting permission to withdraw

because she is unable to find any non-frivolous issues for review. Carston was given

notice of his counsel’s desire to withdraw, but has not filed a pro se brief. The District

Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). We will grant counsel’s motion to withdraw and affirm

the District Court’s judgment of sentence.

       As required by Anders, Carston’s counsel has directed us to portions of the record

that might arguably support an appeal. Counsel has identified two possible issues: (1) the

extent of the District Court’s downward departure; and (2) whether Carston’s counsel was

ineffective for failing to assert that he should have received additional “substantial

assistance” credit.

       As for the first issue, where a defendant is awarded a downward departure, and

where there is no error in the application of the law or the guidelines, the defendant is not

entitled to appeal the extent of the departure, as it is within the sentencing judge’s

discretion. United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (“The

circumstances in which a defendant may appeal a sentence...do not include situations in

which a defendant is seeking an enhanced downward departure.”); see also 18 U.S.C. §

3742(a). The Government made a motion pursuant to U.S.S.G. § 5K1.1 to permit

departure from the guideline range because Carston gave substantial assistance to the



                                              2
Philadelphia Police Department by providing information that led to several arrests in

drug-related homicides. The District Court exercised its discretion by departing

downward from the 77 to 96 months imprisonment called for under the guidelines and

imposed a sentence of 54 months. Accordingly, because the District Court exercised

discretion and it did not err in applying the relevant statutory and guideline provisions, we

do not have jurisdiction to review the extent of the downward departure.

       Second, we do not think that the record, as it stands now, shows that counsel’s

performance fell below an objective standard of reasonably effective assistance. As we

have observed in the past, where that is the case, a claim of ineffective assistance of

counsel is most appropriately raised through a motion pursuant to 28 U.S.C. § 2255,

which allows for further development of the record on this issue. See United States v.

Givan, 320 F.3d 452, 464 (3d Cir. 2003).

       For the reasons stated above, we will grant counsel’s request to withdraw and

affirm the judgment of sentence entered by the District Court.




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