                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-4719


                           UNITED STATES OF AMERICA

                                            v.

                                 DEREK MERCHANT,
                                         Appellant


                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Criminal No. 07-cr-00419-001)
                     District Judge: Honorable William W. Caldwell


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 25, 2010

           Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.

                                  Filed: April 15, 2010


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Defendant Derek Merchant was found guilty after a bench trial of distributing, and

possessing with intent to distribute, more than 50 grams of cocaine base, and conspiracy

to do the same. Although Merchant sought to appeal his conviction, his counsel filed a
motion in accordance with Anders v. California, 386 U.S. 738 (1967), seeking to

withdraw from representing Merchant and asserting that there are no nonfrivolous

arguments for appeal. We find that counsel has failed to satisfy his obligations under

Anders. However, based on our independent review of the record, and our review of the

arguments raised by Merchant in a brief filed pro se, we agree that any appeal would be

patently frivolous and will grant counsel’s motion.

       In Anders, the Supreme Court held that “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.” 386 U.S. at 744 (emphasis added). However, counsel

must support his request with “a brief referring to anything in the record that might

arguably support the appeal.” Id. Thus, counsel has two obligations: “(1) to satisfy the

court that he or she has thoroughly scoured the record in search of appealable issues; and

(2) to explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780

(3d Cir. 2000). Although “counsel need not . . . raise and reject every possible complaint

. . . , the brief at minimum must assure us that counsel has made a sufficiently thorough

evaluation of the record to conclude that no further discussion of other areas of the case is

necessary.” Id. (internal quotation marks, citations, and alteration omitted).

       Counsel’s brief in this case does not give us this assurance. Counsel identifies two

possible grounds for appeal. He first argues that evidence recovered in a search of 405 S.

Wayne Street should have been suppressed because of a typographical error in the



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affidavit supporting the search warrant. Although the search in question was conducted

at 405 S. Wayne Street, which was the address identified by the warrant, the supporting

affidavit mistakenly referred to 405 S. Grand Street. The defense initially identified this

error in a pretrial suppression motion, which the District Court denied. The District

Court’s decision is subject to plenary review. United States v. Shields, 458 F.3d 269, 276

(3d Cir. 2006). The District Court correctly found that this error did not justify

suppression of the evidence, since the warrant itself contained the correct address and was

therefore sufficient to allow the police to “ascertain and identify the place intended.”

Steele v. United States, 267 U.S. 498, 503 (1925). In addition, the evidence seized would

have been admissible under the good faith exception, since the police acted in good faith

in obtaining the warrant and acted within the scope of the warrant in executing the search.

See United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993).

       The second possible error identified by counsel is the District Court’s decision not

to impose a below-Guidelines sentence on the basis of the sentencing disparity between

crack cocaine and powder cocaine. Where, as here, an alleged error in sentencing was

raised before the District Court, we review the sentence for abuse of discretion. United

States v. Russell, 564 F.3d 200, 203 (3d Cir. 2009). We find no error in the 170-month

sentence imposed by the District Court, which was within the Guidelines and was

imposed after sufficient consideration of the factors specified by 18 U.S.C. § 3553. The

sentence was procedurally and substantively reasonable, and the Court was not required



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to impose a below-Guidelines sentence that reflected the cocaine sentencing disparity.

See United States v. Gunter, 462 F.3d 237, 249 (3d Cir. 2006) (“[T]he District Court is

under no obligation to impose a sentence below the applicable Guidelines range solely on

the basis of the crack/powder cocaine differential.”).

       As counsel argues, both of these issues are frivolous, as neither is even remotely

“arguable on [its] merits.” Anders, 386 U.S. at 744. The grounds for appeal identified by

Merchant, in a lengthy brief submitted pro se, are more promising. Although we

ultimately conclude that those issues are also frivolous, we are troubled by counsel’s

failure to even address them. Indeed, several of the issues identified by Merchant were

far more worthy of discussion in an Anders brief than the two issues identified by

counsel.

       With the exception of his arguments regarding suppression of evidence and the

admission of hearsay testimony, none of the issues raised by Merchant were preserved

before the District Court, and all are thus subject to plain error review. “A defendant

must satisfy a four-prong test to be successful under plain error review: there must be (1)

an error; (2) that is plain; (3) which affects substantial rights; and (4) seriously impairs the

fairness, integrity, or public reputation of judicial proceedings.” United States v. Cesare,

581 F.3d 206, 209 (3d Cir. 2009). Merchant has failed to show that the District Court

erred, much less that it plainly erred, with respect to any of the issues that he has

identified on appeal.



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       First, Merchant argues that the District Court should not have allowed him to

waive his right to a jury trial without first ordering a psychological evaluation. However,

“a competency determination is necessary only when a court has reason to doubt the

defendant’s competence.” Godinez v. Moran, 509 U.S. 389, 401 n.13 (1993). Although

Merchant suggests that the District Court should have doubted his competence because he

“constantly argu[ed] with his attorneys, and . . . exhibit[ed] a complete distrust of the

quality of each attorney’s performance,” Appellant’s Br. at 5a, a contentious relationship

between a defendant and his attorney does not, on its own, require a court to question the

defendant’s competence. In this case, certain factors were also present that indicated that

a competency determination was unnecessary. Less than four months before Merchant

waived his right to a jury trial, defense counsel objected to a motion by the Government

to compel a psychiatric examination, stating that Merchant “was respectful . . . and

showed appropriate deference to” the advice of counsel. Dkt. Entry 65 ¶ 4. In addition,

during trial, which was held eight days after he signed the waiver, Merchant demonstrated

through fairly cogent, intelligent testimony that he had sufficient “ability to consult with

his lawyer with a reasonable degree of rational understanding” and that he had “a rational

as well as factual understanding” of the proceedings. See Godinez, 509 U.S. at 396

(internal quotation marks and citation omitted).

       Second, Merchant argues that the evidence seized during the search of 405 S.

Wayne Street should have been suppressed because the search warrant was not supported



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by probable cause. This argument was raised before the District Court and is subject to

plenary review. Contrary to Merchant’s contention, the affidavit supporting the warrant

application presented sufficient facts for the magistrate to conclude that “there [was] a

fair probability that contraband or evidence of a crime [would] be found” at the Wayne

Street house. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). According to the affidavit,

after a confidential informant contacted Merchant (in the presence of the police) to

arrange a drug purchase, a Dodge truck left the apartment where Merchant was staying

and traveled to the designated location for the transaction. The police observed the

informant walk to the truck with $250 and return with crack cocaine. The truck then

returned to the apartment, and the informant told the police that he had purchased the

cocaine from Merchant. The affidavit’s account of this “controlled buy” was sufficient to

support the issuance of a search warrant.

       Third, Merchant challenges the sufficiency of the evidence introduced at trial.

When reviewing a challenge to the sufficiency of the evidence, “we review the evidence

in the light most favorable to the government as verdict winner, and we must affirm the

conviction if a rational trier of fact could have found defendant guilty beyond a

reasonable doubt, and the verdict is supported by substantial evidence.” United States v.

Shambry, 392 F.3d 631, 634 (3d Cir. 2004) (internal quotation marks, citations, and

alterations omitted). With respect to the distribution charge, Merchant contends that the

Government failed to show that the police officers had directly witnessed him engaging in



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a drug sale. However, Merchant has not cited any authority which requires the

Government to make such a showing. In addition, we agree with the Government that it

met its burden at trial. The Government introduced considerable evidence to support the

distribution charge: the testimony of Dustin Jabs, Donald Beaston, and Cynthia Duncan

regarding their purchases of drugs from Merchant; the testimony of police officers Eric

Norman and Richard Leight regarding three controlled drug purchases from Merchant

made by Jabs and Beaston under the officers’ supervision; as well as a check that Duncan

used to purchase drugs from Merchant, a recording of a phone call in which Merchant

agreed to sell drugs to Beaston, a duffel bag containing drugs that was seized from

Merchant at the time of his arrest, and laboratory reports confirming that the substances

sold by Merchant and seized from him at the time of his arrest were crack cocaine.

       With respect to the conspiracy charge, Merchant contends that the Government

failed to prove the existence of an agreement with other coconspirators. We disagree.

“To establish a charge of conspiracy, the Government must show (1) a shared unity of

purpose, (2) an intent to achieve a common illegal goal, and (3) an agreement to work

toward that goal, which [the defendant] knowingly joined.” United States v. Boria, 592

F.3d 476, 481 (3d Cir. 2010). The existence of a conspiracy “can be inferred from

evidence of related facts and circumstances from which it appears, as a reasonable and

logical inference, that the activities of the participants could not have been carried on

except as a result of a preconceived scheme or common understanding.” Id. During trial,



                                              7
Brittany Rittenhouse testified that she drove Merchant to New York so that he could

acquire drugs from a drug dealer based there. Beaston testified that he arranged for

Merchant to sell drugs to at least three other individuals, and all of those individuals

confirmed that they had purchased drugs from Merchant. In conjunction with the

extensive evidence of Merchant’s drug distribution activities, this evidence was sufficient

to show an agreement, unity of purpose, and common intent among Merchant,

Rittenhouse, and Beaston to distribute illegal drugs.

       Merchant argues that he could not have conspired with Beaston because Beaston

was a government informant. However, Beaston had not yet become an informant at the

time that he arranged these drug sales. Merchant also argues that he could not have

conspired with either Beaston or Rittenhouse because they both purchased drugs from

him. As Merchant notes, “a simple buyer-seller relationship, without any prior or

contemporaneous understanding beyond the sales agreement itself, is insufficient to

establish that the buyer was a member of the seller’s conspiracy.” United States v. Gibbs,

190 F.3d 188, 198 (3d Cir. 1999). However, Merchant’s relationships with Beaston and

Rittenhouse were not “simple buyer-seller relationship[s].” Id. Because he worked with

Beaston to expand his client base and with Rittenhouse to transport the illegal drugs, there

was substantial evidence of an “understanding beyond the sales agreement itself.” Id.

       Fourth, Merchant argues that hearsay testimony was improperly admitted during

trial. When, as here, a defendant objected to an evidentiary ruling before the District



                                              8
Court, we review that ruling for abuse of discretion. United States v. Tomko, 562 F.3d

558, 564-65 (3d Cir. 2009). Merchant’s primary challenge appears to be to the Court’s

decision to allow Officer Norman to testify that Jabs and Beaston had agreed to buy drugs

from Merchant as part of the police investigation. However, these statements were not

“offered in evidence to prove the truth of the matter asserted,” Fed. R. Evid. 801, and

were thus not hearsay. Instead, the District Court provisionally admitted these statements,

subject to the condition that Jabs and Beaston would testify at trial, to provide

background for Norman’s testimony regarding the investigation. We conclude that the

District Court did not abuse its discretion in so doing. To the extent that Merchant

challenges other instances in which hearsay testimony was admitted, we have reviewed

the record and can find no basis for any other evidentiary challenges.

       Fifth, Merchant challenges the admission of two Pennsylvania State Police

laboratory reports concluding that the drugs sold by Merchant during the controlled buys

were cocaine. Merchant contends that it was inconsistent with the Supreme Court’s

recent decision in Melendez-Diaz v. United States, 129 S. Ct. 2527 (2009), to admit these

reports without requiring live testimony from the analysts who wrote them. However, the

Melendez-Diaz Court recognized that a defendant can be constitutionally “compelled to

exercise his Confrontation Clause rights before trial,” and that “[d]efense attorneys and

their clients will often stipulate to the nature of the substance” of a laboratory report,

rather than “insist[ing] on live testimony whose effect will be merely to highlight rather



                                               9
than cast doubt upon the forensic analysis.” Id. at 2541-42. Here, Merchant specifically

stipulated that these reports “may be admitted into evidence in the trial of this case

without the necessity of further testimony or proof,” Supp. App. 1, and defense counsel

did not raise any further objection to their admission at trial. There was thus no violation

of the Melendez-Diaz rule in this case.

       Sixth, Merchant contends that Officer Norman improperly testified as an expert

witness regarding the content of the laboratory reports. We disagree. Norman did not

offer any testimony “based on scientific, technical, or other specialized knowledge”

regarding the analysis of the drugs purchased from Merchant. Fed. R. Evid. 701(c). To

the contrary, Officer Norman appears to have done nothing more than recite the substance

of the lab reports.

       Finally, Merchant argues that his counsel was ineffective because he failed to raise

objections regarding several of the issues identified above, either before the District Court

or on appeal. However, “[i]neffective assistance of counsel claims are not generally

entertained on direct appeal,” and this case does not fall within the narrow class of cases

where “the record is sufficient to allow determination of ineffective assistance of counsel,

[such that] an evidentiary hearing to develop the facts is not needed.” United States v.

Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). We therefore decline to consider the

ineffective assistance claim at this time.

       Like with the issues identified by counsel, we find the issues identified by



                                             10
Merchant in his pro se brief to be patently frivolous. “[I]n those cases in which

frivolousness is patent, we will not appoint new counsel even if an Anders brief is

insufficient to discharge current counsel’s obligations to his or her client and this court.”

United States v. Coleman, 575 F.3d 316, 321 (3d Cir. 2009). We will therefore affirm the

Judgment of the District Court and, in a separate order, grant counsel’s motion to

withdraw, notwithstanding counsel’s failure to satisfy his obligations under Anders.

However, we remind counsel “to heed carefully the requirements of Anders and our Local

Rules implementing that decision.” Id. at 322.




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