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


3-27-2002

USA v. Myrick
Precedential or Non-Precedential:

Docket 01-1766




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Recommended Citation
"USA v. Myrick" (2002). 2002 Decisions. Paper 216.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/216


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                                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                             ___________

                             No. 01-1766
                             ___________


                     UNITED STATES OF AMERICA

                                 v.

                        DARRELL A. MYRICK,
                                              Appellant

          _______________________________________________

          On Appeal from the United States District Court
              for the Western District of Pennsylvania
                  D.C. Criminal No. 99-cr-00119-2
                     (Honorable Donald J. Lee)
                        ___________________


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          January 17, 2002

Before:   SCIRICA and ROSENN, Circuit Judges, and KANE, District Judge*

                   (Filed    March 27, 2002       )




     *The Honorable Yvette Kane, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.

                            ______________

                        OPINION OF THE COURT
                           ______________


SCIRICA, Circuit Judge.

     Darrell Myrick appeals from a judgment of conviction and sentence in the United
States District Court for the Western District of Pennsylvania. On September 7, 2000,
Myrick pled guilty under a written plea agreement to conspiracy to distribute in excess of
one kilogram of heroin, in violation of 21 U.S.C. 846; conspiracy to distribute in
excess of fifty grams of crack cocaine, in violation of 21 U.S.C. 846; and distribution
of crack cocaine, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A)(iii).
     Under the plea agreement, the parties agreed that the relevant quantity of heroin
was at least one kilogram but less than two kilograms, and the relevant quantity of crack
cocaine was at least 150 grams but less than 500 grams. On November 11, 2000, Myrick
filed a motion to withdraw his guilty plea. After a hearing, the District Court found that
Myrick’s plea of guilty was knowing, intelligent, and voluntary, and denied the motion.
The Presentence Report designated Myrick’s offense level at 33, criminal history
category at IV, and guideline range at 188 to 235 months on each count. The District
Court sentenced Myrick to 188 months imprisonment on each count, to be served
concurrently.
     Myrick makes three arguments on appeal - that his counsel was ineffective; that
the District Court erred in failing to permit him to withdraw his plea of guilty; and that
the factual basis for the guideline sentence was inaccurate.
                               I.
     Myrick contends his counsel was ineffective for failing to file a motion to
suppress evidence obtained in three searches. While "[i]neffective assistance of counsel
claims are not generally entertained on direct appeal," there is an exception to this rule
"[w]here the record is sufficient to allow determination of ineffective assistance of
counsel . . . ." United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991) (citation
omitted). We hold we may properly address this claim.
     Myrick’s claim of ineffective assistance of counsel fails because he did not show
that, but for the alleged ineffectiveness, the result would have been different. Myrick
contends there was no probable cause for the search warrants authorizing the three
searches because (1) the information supporting the warrant was stale; (2) there was no
connection to the place searched and the illegal activity claimed; and (3) there was no
evidence that he conducted illegal activity or that he stored money in his parents’ home.
We have held "[a] magistrate judge may find probable cause when, viewing the totality
of the circumstances, ’there is a fair probability that contraband or evidence of a crime
will be found in a particular place.’" United States v. Hodge, 246 F.3d 301, 305 (3d Cir.
2001) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). We must "uphold the
finding if the affidavit on which it was based provided a substantial basis for finding
probable cause." Id. Furthermore, "[t]he resolution of doubtful or marginal cases in this
area should be largely determined by the preference to be accorded to warrants." Id.
(quotations and citations omitted).
     Here, all three affidavits set forth facts detailing a continuous long-term course of
drug dealing. The ongoing nature of Myrick’s narcotics operation refutes his claim of
staleness. See United States v. Stiver, 9 F.3d 298, 301 (3d Cir. 1993) ("Age alone . . .
does not determine staleness. The determination of probable cause is not merely an
exercise in counting the days or even months between the facts relied on and the issuance
of the warrant. Rather, we must also examine the nature of the crime and the type of
evidence.") (quotations and citations omitted). Additionally, "[d]irect evidence linking
the place to be searched to the crime is not required for the issuance of a search warrant .
. . . A court is entitled to draw reasonable inferences about where evidence is likely to be
kept, based on the nature of the evidence and the type of offense." Hodge, 246 F.3d at
305 (quotations and citations omitted). As a result, it was reasonable to infer Myrick
would store evidence of drug dealing in his apartment, his business, and at his parents’
house, which he listed as his residence on several documents.
     In light of the information provided in the affidavits, there is a substantial basis
for finding probable cause. Therefore, Myrick suffered no prejudice and his claim of
ineffective assistance of counsel fails.
                             II.
     Myrick argues the District Court abused its discretion in denying his motion to
withdraw his guilty plea. We have stated that "[o]nce accepted, a guilty plea may not
automatically be withdrawn at the defendant’s whim. Rather, a defendant must have a
fair and just reason for withdrawing a plea of guilty." United States v. Brown, 250 F.3d
811, 815 (3d Cir. 2001) (citation omitted). When evaluating a motion to withdraw we
look to: (1) whether defendant asserts his innocence; (2) whether the government would
be prejudiced by his withdrawal; and (3) the strength of defendant’s reason to withdraw
the plea. Id. We find no fault with the District Court’s analysis.
      Myrick did not assert his innocence during the withdrawal of plea hearing or the
written motion to withdraw his plea. Additionally, the District Court correctly concluded
the government would be prejudiced by Myrick’s withdrawal of his plea as subsequent to
the entry of the plea, one of the government witnesses received a reduction in sentence.
Last, the record clearly indicates Myrick was competent and his plea was made
knowingly, intelligently, and voluntarily. As a result, the District Court did not abuse its
discretion in concluding Myrick failed to demonstrate any fair and just reason for
withdrawing his plea of guilty.
                              III.
     Myrick contends the sentence imposed by the District Court was legally invalid
because the factual basis for the guideline sentence was inaccurate. Contrary to Myrick’s
contentions, the District Court properly used the stipulated drug quantities under the plea
agreement. Additionally, its finding that Myrick began this offense in March 1996 was
based on the record. The District Court’s sentence of 188 months was within the
guideline range. As a result, the District Court’s sentence is supported by the record and
its findings are not clearly erroneous.
                              IV.
     For these reasons, the judgment and sentence of conviction will be affirmed.

TO THE CLERK:

          Please file the foregoing opinion.



                              /s/Anthony J. Scirica

                                         Circuit Judge

DATED:
