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


7-19-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3662




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Recommended Citation
"USA v. Hampton" (2002). 2002 Decisions. Paper 416.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/416


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                                                  NOT PRECEDENTIAL


                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT



                         No: 01-3662
                        ______________

                   UNITED STATES OF AMERICA

                                   v.

                        WADE HAMPTON,


                                              Appellant



         Appeal from the United States District Court
           for the Eastern District of Pennsylvania
            (D.C. Criminal Action No. 01-cr-00261)
           District Judge: Honorable John R. Padova


          Submitted Under Third Circuit LAR 34.1(a)
                       on June 10, 2002


                   Before: SLOVITER, ROTH
                  and MCKEE, Circuit Judges


                (Opinion filed   July 19, 2002)




                        O P I N I O N


ROTH, Circuit Judge
     Wade Hampton appeals his sentence for two separate armed bank robberies.
Counsel for Hampton submitted an Anders brief concluding that there were no
nonfrivolous issues for appeal in this matter. Anders v. California, 386 U.S. 738 (1967).
Counsel moved to withdraw and we will grant the motion. Hampton has also filed a pro
se brief, challenging the five-level increase in his sentence pursuant to U.S.S.G.
2B3.1(b)(2)(C) and alleging ineffective assistance of counsel.
     The first robbery, for which Hampton was convicted, occurred on December 30,
1998, and the second robbery occurred on May 13, 1999. In the District Court, the two
robberies were included in one indictment charging Hampton with one count of
conspiracy to commit armed bank robbery, two counts of armed bank robbery, and one
count of using, carrying, and brandishing a firearm during and in relation to a crime of
violence. Hampton pled guilty to all counts. The District Court accepted Hampton’s
plea and sentenced him to 192 months of confinement. Both the plea and the sentence
had been negotiated with the government.
     Hampton claims on appeal that the District Court engaged in "double counting"
when it charged Hampton with one bank robbery under 18 U.S.C. 924(c) and then
imposed a five-level increase pursuant to U.S.S.G. 2B3.1(b)(2)(C) in connection with
the other bank robbery. A District Court’s application of Sentencing Guidelines is
subject to plenary review. United States v. Mobley, 956 F.2d 450, 451 (3d Cir. 1989).
     Hampton argues that where a 924(c) offense has been charged, the application
of specific offense characteristics, such as possession, brandishing, use or discharge of an
explosive or firearm, is prohibited. Accordingly, Hampton asserts that the five-level
increase of his sentence under 2B3.1(b)(2)(C) is prohibited because he was charged
under 924(c). Hampton accuses the District Court of "double-counting" his sentence
in violation of Application Note 2 of U.S.S.G. 2K2.4.
     Hampton’s claim lacks merit. While correctly citing to Application Note 2,
Hampton failed to review Application Note 2 in its entirety. The Note specifically
provides that "if a defendant is convicted on two armed bank robberies, but is convicted
under 18 U.S.C. 924(c) in connection with one of the robberies, a weapon enhancement
would apply to the bank robbery which was not the basis for the 18 U.S.C. 924(c)
conviction." These are precisely the circumstances in this case. Hampton was charged
under 924(c) for only the May 13, 1999, robbery.    Therefore,   2B3.1(b)(2)(C) is
applicable to the sentence imposed for the December 30, 1998, robbery. The District
Court did not "double-count" Hampton’s sentence.
     Next, Hampton alleges that his counsel was ineffective. However, we decline to
entertain ineffective assistance claims on direct appeal, preferring to develop a fuller
factual record through 28 U.S.C. 2255 proceedings. United States v. Gambino, 942
F.2d 938, 950 (3d Cir.). Hampton presents no reason to depart from such procedure.
     We will, therefore, affirm the judgment of sentence of the District Court.




TO THE CLERK:

     Please file the foregoing Opinion.



                              By the Court,



                                     /s/ Jane R. Roth
                                             Circuit Judge
