                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2287




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"USA v. Gallashaw" (2005). 2005 Decisions. Paper 1137.
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                                                                 NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-2287

                           UNITED STATES OF AMERICA

                                           v.

                               DARREN GALLASHAW,

                                          Appellant
                                 __________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. No. 01-CR-00231-11)
                     District Judge: The Honorable Stewart Dalzell
                                 __________________

                     Submitted Pursuant to Third Circuit LAR 34.1
                                    June 18, 2004

               Before: ALITO, SMITH, and WALLACE*, Circuit Judges

                                 (Filed: May 25, 2005)




                              OPINION OF THE COURT




SMITH, Circuit Judge.

      Defendant Darren Gallashaw was indicted for conspiracy to distribute cocaine in

violation of 21 U.S.C. § 846 (Count One), and distribution of cocaine and possession of
cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Counts Eleven and

Twelve). Pursuant to a written plea agreement, Gallashaw pleaded guilty to Count One,

and the District Court dismissed Counts Eleven and Twelve on the motion of the

Government. Gallashaw admitted, at the time of his guilty plea, that he had worked as a

lookout and seller for a narcotics trafficking organization in Philadelphia. After his

arrest, Gallashaw cooperated with the Government and provided substantial assistance in

the investigation and prosecution of another individual.

       Under the guidelines, Gallashaw’s plea to Count One resulted in an offense level

of 33. Based on Gallashaw’s criminal history score of I, the guideline range for

Gallashaw’s offense was 135 to 168 months. The District Court adopted the factual

findings and guideline application contained in the pre-sentence report. Gallashaw did

not bring any objection to the pre-sentence report to the District Court’s attention.

       Pursuant to the plea agreement, the Government filed a motion under U.S.S.G. §

5K1.1 to depart downward from Gallashaw’s guideline range based on his substantial

assistance to the authorities. The District Court granted the downward departure motion

and sentenced Gallashaw to 85 months’ imprisonment.

       After filing a timely notice of appeal, Gallashaw’s counsel moved to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967). After counsel recited the evidence

of Gallashaw’s complicity in the narcotics operation, he asserted that the only arguable

issue for appeal was the extent of the District Court’s downward departure. Gallashaw



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filed an informal brief pursuant to Local Appellate Rule 109.2(a) asserting that (1) his

counsel had been ineffective with regard to sentencing, and (2) the District Court had

relied on allegedly erroneous information contained in a pre-sentence report. The District

Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       In Anders, the Supreme Court held that the “constitutional requirement of

substantial equality and fair process” necessitates that appellant counsel vigorously act as

an advocate for the defendant. 386 U.S. at 744. Thus, counsel’s

       role as advocate requires that he support his client’s appeal to the best of his
       ability. Of course, if counsel finds his case to be wholly frivolous, after a
       conscientious examination of it, he should so advise the court and request
       permission to withdraw. That request, must, however, be accompanied by a
       brief referring to anything in the record that might arguably support the
       appeal.

Id. We conclude that counsel satisfied the requirements of Anders. Because Gallashaw

pleaded guilty, he is limited to asserting a constitutional right not to be haled into court on

a charge, challenging the validity of the guilty plea, and attacking the legality of his

sentence. See United States v. Broce, 488 U.S. 563, 574-76 (1989); 18 U.S.C. § 3742(a).

Neither counsel nor Gallashaw contend that the government was constitutionally

precluded from charging Gallashaw with the crimes alleged in the indictment, challenge

the validity of the guilty plea, or otherwise attack his conviction. Our review of the

record fails to reveal any deficiencies in his guilty plea.

       Gallashaw’s complaints about his counsel’s performance as it related to sentencing

                                               3
raises an ineffectiveness of counsel claim. We generally do not entertain ineffectiveness

claims on direct appeal. E.g., United States v. Thornton, 327 F.3d 268, 271 (3d Cir.

2003). Instead, “the proper avenue for pursuing such claims is through a collateral

proceeding in which the factual basis for the claim may be developed.” United States v.

Haywood, 155 F.3d 674, 678 (3d Cir. 1998) (internal quotation omitted). The record on

appeal contains no information from which we can determine that counsel’s conduct was

deficient, or that any deficiency resulted in prejudice to Gallashaw. Accordingly, we

decline to consider Gallashaw’s ineffective assistance claim.

       Gallashaw’s sentence, however, was imposed prior to the United States Supreme

Court’s decision in United States v. Booker 125 S.Ct. 738 (2005), which concluded that

the sentencing guidelines, instead of being mandatory, were only advisory. Id. at 757. As

a result, there is a possibility that Gallashaw’s sentence may have been affected by the

District Court’s treatment of the guidelines as mandatory. Having determined that this

issue is best addressed in the first instance by the District Court, we will vacate

Gallashaw’s sentence and remand for resentencing in accordance with Booker.

       Counsel’s motion to withdraw is denied. We express no opinion on Gallashaw’s

assertion that the pre-sentence report contains erroneous information, but instead allow

Gallashaw to raise this issue on remand.




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