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


7-18-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3514




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"USA v. Andrews" (2002). 2002 Decisions. Paper 411.
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                                                  NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                       Nos: 01-3514/3518
                        _______________


                    UNITED STATES OF AMERICA

                                v.

                      TERRENCE E. ANDREWS,
                                Appellant in 01-3514

                                &

                       ERIC L. MYRIECKES,
                              Appellant in 01-3518


         Appeal from the United States District Court
            for the Western District of Pennsylvania
         (D.C. Criminal Action No. 00-cr-00014J-1 & 3)
           District Judge: Honorable D. Brooks Smith


           Submitted Under Third Circuit LAR 34.1(a)
                         on May 2, 2002

           Before: ROTH and STAPLETON Circuit Judges
                    POLLAK*, District Judge

                 (Opinion filed July 16, 2002)


     * Honorable Louis H. Pollak, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation



                         O P I N I O N

ROTH, Circuit Judge:
      Defendant-Appellants Terrence Andrews and Eric Myrieckes pled guilty to
possessing crack cocaine with intent to sell and to conspiracy to sell crack cocaine. They
appeal a variety of rulings by the District Court. Myrieckes challenges the denial of a
motion to suppress. Andrews challenges both his guilty plea and his sentence. We will
affirm the District Court on each assignment of error.
I. Factual and Procedural History
     Acting on the basis of a tip from a confidential informant, the police stopped and
searched the car Andrews and Myrieckes were riding in. In the car the police found more
than 30 grams of crack cocaine and arrested Andrews, Myrieckes and the driver. After
their arrest, both Defendants were indicted for possessing crack cocaine with the intent to
sell and for conspiracy to sell crack cocaine. They both filed a motion to suppress
evidence of the crack cocaine seized incident to their arrest. The motions were denied.
Both men then pled guilty to all charges. Myrieckes pled guilty on the condition that he
could appeal the denial of his suppression motion. Andrews gave an unconditional guilty
plea.    Soon afterwards, Andrews filed a motion to withdraw his guilty plea alleging
ineffective assistance of counsel. After that motion was denied, he replaced his counsel
and filed another motion to withdraw his guilty plea. That motion was also denied. The
District Court then sentenced defendants and they appealed.
II. Discussion
A. Defendant Myrieckes
      Myrieckes contends that the District Court erred by denying his motion to suppress
evidence of the drugs found in the car. Police may, however, stop and search a car when
they have a reasonable suspicion of criminal activity, United States v. Hensley, 469 U.S.
221, 226 (1985). Here, there was more than enough evidence to meet that standard.     The
police received a tip from an informant who was willing to meet with the police and to
sign a statement that he understood giving false information to the police was a crime. A
tipster willing to identify himself to police is more reliable than an anonymous tipster.
See United States v. Valentine, 232 F.3d 350, 354 (3rd Cir. 2000). To create reasonable
suspicion, a tipster must predict some, but not necessarily all, of the suspects’ actions.
See Alabama v. White, 496 U.S. 325 (1990). This tipster was quite accurate. He
correctly predicted that Myrieckes, Andrews, and a woman would leave town with a
woman driving. He correctly identified the time they would leave and even gave the
licence number of the car. He also claimed the defendants were going to Cleveland. The
police saw the defendants return to town on one of the main routes from Cleveland after
being gone for a period of time consistent with a trip to Cleveland. In addition the police
had arrested both defendants several times on suspicion of drug activity. That is
sufficient information to create a reasonable suspicion of criminal activity.
      We will affirm the denial of the motion to suppress.
                      B. Defendant Andrews
      Andrews raises three issues on appeal, two challenging his sentence, one
challenging his guilty plea. His first claim is that the District Court committed clear error
when it found that he was not a minor participant in the drug conspiracy and thus refused
to grant him a two level downward departure pursuant to 3B1.2(b) of the sentencing
guidelines. U.S.S.G. 3B1.2(b). He contends that the evidence shows that he was less
culpable than Myrieckes. We cannot agree. Although Andrews did not own or drive the
car, did not bring the scale ostensibly used for weighing the drugs, was not identified by
the informant as a drug dealer, and may have depended on Myrieckes’s connections in
Cleveland to acquire the drugs, there is substantial evidence of his culpability. Andrews,
with Myrieckes, asked the driver of the car for a ride to Cleveland, rode to Cleveland to
get the drugs, discussed future profits from the sale of the drugs, and had drugs on or near
his person when arrested. This evidence indicates Andrews was Myrieckes’ partner. We
therefore cannot say the District Court committed clear error when it found that Andrews
was as culpable as Myrieckes.
      Andrews’ next issue on appeal also challenges his sentence. He claims that the
District Court committed clear error when it found that there were 37.8 grams of cocaine
in the car. See United States v. Miele, 989 F.2d 659, 663 (3rd Cir. 1993) (stating that
findings of fact are reversed only if clearly erroneous). He contends the District Court
should have credited defense experts, who testified that the drugs weighed slightly under
35 grams. The District Court, however, found the government’s witnesses more credible
than the defense’s experts. The witnesses presented by the government actually weighed
the drugs themselves and testified live before the District Court. Andrews’ expert did not
even weigh the drugs himself, allowing an employee to do it while he was away, and the
expert testified over the telephone. Under these circumstances, we cannot say that the
District Court’s decision to find the government’s witnesses more credible is clear error.
      Andrews’s final issue on appeal is a challenge to his guilty plea. He asks us to
amend his plea agreement to make it conditional on an appeal of his motion to suppress
the drugs found in the search of the car. He argues that we should do so because he
received ineffective assistance of counsel; his first attorney, he claims, incorrectly told
him that his plea was conditional. Generally, we refuse to hear claims for ineffective
assistance of counsel on direct appeal, preferring to hear those claims on collateral attack
under 28 U.S.C. 2255. See United States v. Haywood, 155 F.3d 674, 678 (3rd Cir.
1998). Because, however, we are able to decide this issue now, we will address it. See
Government of the Virgin Islands v. Zepp, 748 F.2d 125, 133-34 (3rd Cir. 1984).
     We find Andrews’ claim to be without merit. The standard for determining
ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668
(1984). It consists of two components: "the defendant must show that counsel’s
performance was deficient" and "that the deficient performance prejudiced the defense."
Id. at 687. Here, we do not need to examine the first component, i.e., whether or not
Andrews’ attorney told him that his plea was conditional, because clearly Andrews cannot
show prejudice. Whether or not his plea was conditional, we have denied the motion to
suppress as we set forth above in our discussion of Myrieckes’ plea. Therefore, even if
Andrews’ plea had been conditional on pursuing an appeal of the denial of the motion to
suppress, the appeal on that point would have failed.
     For the reasons stated above, we will affirm the judgments of conviction and of
sentence of both defendants.

____________________________
TO THE CLERK:
     Please file the foregoing Opinion.

                                   BY THE COURT:

                                   /s/ Jane R. Roth
                                               Circuit Judge
