                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2201




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-2201


                           UNITED STATES OF AMERICA

                                            v.

                                   ANTOINE CLARK,
                                              Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                               D.C. Crim. 04-cr-00168
                District Judge: The Honorable Donetta W. Ambrose


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 30, 2006


          Before: McKEE, BARRY and VAN ANTWERPEN, Circuit Judges


                             (Opinion Filed: April 26, 2006)


                                        OPINION




BARRY, Circuit Judge

       Appellant Antoine Clark appeals the sentence imposed on his plea of guilty

pursuant to a plea agreement. We will dismiss the appeal for lack of jurisdiction.
                                             I.

       Pittsburgh Housing Authority police officers arrested Clark on May 5, 2004. He

was charged with aggravated assault, resisting arrest, recklessly endangering another

person, violation of the Uniform Firearms Act, and possession with intent to deliver.1 He

was later charged in federal court with possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g) and 924(a)(2).

       Clark’s counsel and an Assistant United States Attorney (“AUSA”) met to discuss

a plea agreement. Subsequently, counsel sent a letter dated December 20, 2004 to the

AUSA, which provided in pertinent part:

       We met previously and discussed the applicable sentencing guidelines. At
       that time, you indicated that you may forgo seeking a 2 point enhancement
       for Recklessness During Flight (USSG 3C1.2.) You did not indicated [sic]
       that the Government would seek any other enhancements. Accordingly,
       kindly set forth whether the Government does intend to seek an
       enhancement for Recklessness.

(SA15.) Counsel received no reply.

       On January 27, 2005, Clark pled guilty. The plea agreement made no mention of

any promise by the government not to seek one or more sentencing enhancements. It did,

however, include a clause whereby Clark waived his right to appeal unless one of two

exceptions, neither applicable here, was met. Thereafter, a presentence investigation

report (“PSR”) was prepared. The PSR included a four-level increase to Clark’s base



   1
    The possession with intent to deliver charge was later reduced to simple possession, a
misdemeanor.

                                             2
offense level pursuant to U.S.S.G. § 2K2.1(b)(5) because he used or possessed a firearm

in connection with another felony.2 His total offense level, after the appropriate reduction

for acceptance of responsibility, was 25; his criminal history category was VI; and his

guideline imprisonment range was 110 to 137 months, which, because of a statutory

maximum of 10 years, became 110 to 120 months.

         Clark objected to the four-level increase, relying on the negotiations between

counsel and the A.U.S.A. prior to entering into the plea agreement.3 The District Court

was not persuaded, and sentenced him to 110 months in prison followed by three years of

supervised release. He appeals.

                                              II.

         Clark argues that counsel’s letter of December 20, 2004 precluded the government

from seeking the four-level increase under §2K2.1(b)(5). The government argues, in

response, that the appeal must be dismissed because Clark waived his right to appeal. We

agree with the government.

         The pertinent part of the plea agreement provides that Clark waived

         “the right to take a direct appeal from his conviction or sentence under 28


   2
       Clark pointed the loaded weapon at the police when they attempted to arrest him.
   3
     On appeal, “[Clark] does not challenge the factual basis of the plea or whether the
underlying conduct was sufficient to support the Government seeking a four level
increase pursuant to [U.S.S.G. §] 2K2.1(b)(5).” (Appellant’s Br. at 9.) Moreover,
Clark’s counsel “stipulates that he did not specifically discuss the applicability of [§]
2K2.1(b)(5) and that it was not discussed on or off the record on January 27, 2005.” (Id.
at 10.)

                                               3
       U.S.C. §1291 or 18 U.S.C. §3742, subject to the following exceptions:
             (a)    If the United States appeals from the sentence, Antoine
                    Clarke [sic] may take a direct appeal from the sentence.
             (b)    If (1) the sentence exceeds the applicable statutory limits set
                    forth in the United States Code, or (2) the sentence
                    unreasonably exceeds the guideline range determined by the
                    Court under the Sentencing Guidelines, Antoine Clarke [sic]
                    may take a direct appeal from the sentence.”

(SA2.) A waiver of appeal, the validity of which is subject to de novo review, will be

enforced provided it was “entered into knowingly and voluntarily, unless [it] work[s] a

miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 558, 560 (3d Cir. 2001).

       Clark does not seriously contend that his waiver of appeal was unknowing or

involuntary, and, at the change of plea hearing, he agreed that the government’s summary

of the plea agreement was accurate. Moreover, no miscarriage of justice will result from

enforcing the waiver. There is nothing in the record that suggests that the government

agreed not to seek the § 2K2.1(b)(5) enhancement, and the lack of a response to counsel’s

letter did not establish the existence of a promise.4 Moreover, the plea agreement itself

contains no mention of any such promise, and, at the change of plea hearing, Clark

confirmed that no promises other than those memorialized in the plea agreement had been

made to him. In any event, even if there had been a promise, it was not breached by the

government given that no enhancement was sought by it.




   4
    Indeed, counsel’s description of his conversations with the AUSA confirm that no
“hard and fast plea offer” was in place as of the date of the letter. (A47) They “were
continuing to discuss the matters.” (Id.)

                                             4
       Clark also argues that he received ineffective assistance of counsel, which can, in

certain circumstances, serve as the basis for setting aside a valid plea. United States v.

Broce, 488 U.S. 563, 574 (1989); United States v. Thornton, 327 F.3d 268, 271 (3d Cir.

2003). However, we have a “strong preference for reviewing allegations of ineffective

assistance of counsel in collateral proceedings under 28 U.S.C. § 2255 rather than on

direct appeal.” United States v. Sandini, 888 F.2d 300, 312 (3d Cir. 1989). Clark

contends that his counsel’s objection to the four-level increase at the sentencing hearing

“was, essentially, an oral motion pursuant to 28 U.S.C. [§] 2255 and is therefore [] before

the Court for appellate review.” (Appellant’s Br. at 17)

       Again, however, his waiver stands in the way, because he waived not just a direct

appeal but “waive[d] the right to file a motion to vacate sentence, under 28 U.S.C. §2255

. . . .” (SA2). Clark does not claim that the waiver itself was the product of

ineffectiveness, but only that counsel failed to ensure that the plea agreement included the

government’s promise not to seek additional enhancements. Even if we were to reach the

ineffectiveness claim and were to assume that counsel’s “acts or omissions were outside

the wide range of professionally competent assistance,” see Strickland v. Washington, 466

U.S. 668, 690 (1984), the government, as already discussed, made no such promise and

never sought an enhancement. Therefore, Clark cannot establish prejudice. See id. at 692

(“[A]ny deficiencies in counsel’s performance must be prejudicial to the defense in order

to constitute ineffective assistance under the Constitution.”).



                                              5
                                     III.

For the foregoing reasons, the appeal will be dismissed for lack of jurisdiction.




                                      6
