                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1903




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Recommended Citation
"USA v. Ellison" (2009). 2009 Decisions. Paper 1839.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1839


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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                    No. 07-1903
                                    __________


                         UNITED STATES OF AMERICA

                                           v.

                                 LARRY ELLISON,

                                                      Appellant
                                    __________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 05-cr-00619-5)
                     District Judge: Honorable Cynthia M. Rufe
                                     __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on February 6, 2009

                   Before: RENDELL and ROTH, Circuit Judges,
                           and HAYDEN,* District Judge.

                             (Filed: February 23, 2009)
                                     __________

                            OPINION OF THE COURT
                                  __________

__________________

   * Honorable Katharine S. Hayden, Judge of the United States District Court for the
     Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       On June 9, 2006, Larry Ellison entered an open guilty plea to two counts of

knowingly and intentionally distributing cocaine base (crack) in violation of Title 21

U.S.C. § 841(a)(1), (b)(1)(C). The government presented the factual basis for the plea at

the sentencing hearing, asserting that Ellison had sold crack cocaine to an undercover

officer on two occasions. The DEA lab determined that Ellison sold 0.65 grams of crack

on the first occasion and 2.4 grams of crack on the second. Ellison agreed that he had

committed these acts. The Probation Office concluded, in assessing Ellison’s base

offense level under the sentencing guidelines, that Ellison had been responsible for

distributing 3.05 grams of crack.

       The District Court sentenced Ellison to 46 months’ incarceration on each count, to

be served concurrently, three years of supervised release, a fine of $1,200.00 and a special

assessment of $200.00. Ellison timely filed a pro se appeal. Ellison’s counsel has filed a

brief requesting permission to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967), stating that he is unable to find any non-frivolous issues for appeal after a

conscientious review of the record. We have jurisdiction under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291.

       In assessing an Anders brief, we must determine: 1) whether counsel has

thoroughly examined the record for appealable issues and has explained why any such

issues are frivolous; and 2) whether an independent review of the record presents any



                                              2
non-frivolous issues. United States v. Thomas, 389 F.3d 424, 425 (3d Cir. 2004) (citing

United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001)). If the Anders brief appears

adequate on its face, we review only the portions of the record identified in the brief and

any issues raised by an appellant in a pro se brief. See Youla, 241 F.3d at 300. We find

that counsel’s Anders brief is adequate and, as Ellison has not filed a pro se brief, it will

guide our independent review of the record.

       Ellison’s unconditional guilty plea to two counts limits the availability of appellate

relief to claims: 1) that the court lacked jurisdiction to accept the plea; 2) that the plea is

invalid under applicable statutory and constitutional standards; and 3) that the sentence is

illegal. See United States v. Broce, 488 U.S. 563 (1989). None of these categories of

unwaived claims applies here. The District Court had jurisdiction pursuant to 18 U.S.C.

§ 3231 and a review of the plea colloquy establishes that Ellison’s guilty plea was

voluntary and knowing in compliance with Fed. R. Crim. P. 11 and Boykin v. Alabama,

395 U.S. 238 (1969). Furthermore, a review of the sentencing hearing transcript

demonstrates that the District Court complied with the requirements of Fed. R. Crim.

P. 32 applicable in Ellison’s case.

       Counsel identified one other potential issue: Ellison’s allegation that his trial

counsel was ineffective. Counsel, through his correspondence with Ellison, states that

Ellison believes that his trial counsel was ineffective because he did not request that the

drugs at issue in his guilty plea be weighed independently. We should not entertain



                                                3
ineffective assistance of counsel claims on direct appeal, as the proper avenue for such

claims is through a collateral proceeding in which the factual basis for the claim may be

developed. See United States v. Thomas, 389 F.3d 424, 429 (3d Cir. 2004). We shall

defer ineffective assistance of counsel claims to a collateral attack unless the record is

sufficient for us to address the claim on direct appeal. See United States v. Thornton, 327

F.3d 268, 271 (3d Cir. 2003). Here, the record is insufficient in this regard. Accordingly,

a review of Ellison’s dissatisfaction with counsel is inappropriate on direct appeal.

       Lastly, in its brief, the Government observes that Ellison additionally might have

raised an argument that his case should be remanded for resentencing because a

November 2007 amendment to the sentencing guidelines reduced the offense levels for

crack, noting, however, that this argument must fail. We agree. The sentencing

guidelines provide that the court must use the Guidelines Manual in effect on the date that

the defendant is sentenced, unless doing so would violate the ex post facto clause of the

Constitution. See U.S.S.G. § 1B1.11. Ellison’s base offense level would have dropped

from 22 to 20 under the November 2007 amendment to section 2D1.1(c)(9), and applying

the same 3-level reduction, the appropriate guideline range would have been 37-46

months, rather than the guideline range of 46-57 that the District Court applied pursuant

to the 2006 guidelines. We conclude, however, that the District Court correctly applied

the 2006 guidelines. Furthermore, the District Court emphatically stated that it

recognized that the sentencing guidelines were merely advisory and it had based its



                                              4
decision heavily on an assessment of the “forty-seven years of [the defendant’s] life.”

(App. 120). For the above reasons, this argument would not support an appeal or a

remand.

       Our independent review of the record yields no other non-frivolous arguments that

could support an appeal and we are satisfied that the requirements of Anders have been

met. Accordingly, we will AFFIRM the judgment of the District Court and, in a separate

order, grant counsel’s motion to withdraw.

_____________




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