                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-22-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3921




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Recommended Citation
"USA v. Coffie" (2004). 2004 Decisions. Paper 793.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-3921
                                      __________

                          UNITED STATES OF AMERICA,
                                            Appellee

                                           v.

                                      KEN COFFIE,
                              a/k/a KENYATTA COFFIE,
                              a/k/a ROBERT JACKSON,
                                a/k/a ROBERT MOORE,
                                 a/k/a KENNY MOORE

                                     KEN COFFIE,
                                               Appellant.
                                      __________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               Criminal Action No. 01-633
                    District Judge: Honorable Mary A. McLaughlin
                                      __________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   April 20, 2004
                                   ___________

          Before: SCIRICA, Chief Judge, GARTH, and BRIGHT * , Circuit Judges

                            (Opinion Filed: April 22, 2004)
                                    __________


      *
          Myron H. Bright, Circuit Judge, United States Court of Appeals for the Eighth
Circuit, sitting by designation.
                               OPINION OF THE COURT
                                     __________

Garth, Circuit Judge:

      On October 30, 2001, Appellant Ken Coffie was indicted by a grand jury in the

Eastern District of Pennsylvania for possessing a firearm after having been convicted of a

felony, in violation of 18 U.S.C. § 922(g)(1).1 The indictment also alleged that Coffie

had seven prior convictions for violent felonies or serious drug offenses, which would

classify Coffie as an armed career criminal and trigger a sentence enhancement under 18

U.S.C. § 924(e). On March 1, 2002, following a three day trial, a jury found Coffie

guilty of the charged offense, and separately found that Coffie had been convicted of

seven predicate violent felony offenses.

      On October 16, 2002, the District Judge imposed a sentence of 235 months

imprisonment, a term of supervised release of five years, and a special assessment of

$100. Coffie now appeals. The District Court had jurisdiction under 18 U.S.C. § 3231,

and we exercise jurisdiction under 28 U.S.C. § 1291. We will affirm.

                                             I.

      Coffie’s counsel has filed a brief in accordance with Anders v. California, 386


      1
          18 U.S.C. § 922 (g)(1) provides:

      It shall be unlawful for any person who has been convicted in any court of, a
      crime punishable by imprisonment for a term exceeding one year . . . to ship
      or transport in interstate or foreign commerce, or possess in or affecting
      commerce, any firearm or ammunition[.]

                                             -2-
U.S. 738 (1967), stating that there are no non-frivolous issues raised in this appeal; he

has also filed a motion requesting to withdraw as counsel. Coffie has filed a

supplemental pro se brief, in which he argues that his counsel was ineffective for failing

to argue on appeal that police officers apprehended him and seized his firearm in

violation of Terry v. Ohio, 392 U.S. 1 (1968), and that the District Court admitted a

statement at trial in violation of Brady v. Maryland, 373 U.S. 83 (1968). The

government has submitted a brief in which it agrees with counsel for Coffie that there are

no nonfrivolous issues presented for appeal, and contends that Coffie’s ineffective

assistance of counsel claim should not be heard on direct appeal, but rather should be

raised for collateral review before the District Court under 28 U.S.C. § 2255.

                                             II.

       In reviewing an Anders brief, we ask (1) whether counsel adequately examined

the record for appealable issues and explained why such issues are frivolous, and (2)

whether an independent review of the record presents any non-frivolous issues. United

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). With regard to the first duty,

counsel’s Anders brief 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.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000) (quoting

United States v. Tabb, 125 F.3d 583, 585 (7th Cir. 1997)). As to the second duty,

“counsel must also explain to the court why the issues are frivolous.” Id. at 781.


                                            -3-
      Coffie’s counsel has met the first requirement by reviewing the record and

identifying one possible issue that might arguably support an appeal: whether the District

Judge properly sentenced Coffie as an armed career criminal under 18 U.S.C.

§§ 922(g)(1) & 924(e) and the corresponding section of the United States Sentencing

Guidelines (“U.S.S.G.”), § 4B1.4. In his brief, counsel argues that Coffie was properly

sentenced under 18 U.S.C. § 924(e), which directs that a 15 year minimum sentence be

imposed upon a defendant in possession of a firearm who has at least three predicate

convictions.2 Counsel asserts that, under United States v. Schoolcraft, 879 F.2d 64 (3d

Cir. 1989), the District Court properly considered Coffie’s seven previous convictions

when determining his status as an armed career criminal.3 In addition, counsel argues

that the District Judge correctly enhanced Coffie’s sentence under U.S.S.G. § 4B1.4,

which applies to a defendant who has been classified as an armed career criminal under

18 U.S.C. § 924(e).

      2
          18 U.S.C. § 924(e) provides:

      In the case of a person who violates section 922(g) of this title and has three
      previous convictions by any court referred to in section 922(g)(1) of this title
      for a violent felony or a serious drug offense, or both, committed on occasions
      different from one another, such person shall be fined under this title and
      imprisoned not less than fifteen years, and, notwithstanding any other
      provision of law, the court shall not suspend the sentence of, or grant a
      probationary sentence to, such person with respect to the conviction under
      section 922(g).
      3
        The jury determined that Coffie had been convicted of seven previous violent
felonies or serious drug felonies – six robbery convictions and one conviction for
possession of cocaine with intent to distribute.

                                            -4-
       Where an appellant has raised issues in a pro se brief that were not raised in his

counsel’s Anders brief, this Court may consider those issues in determining whether the

record presents any non-frivolous issues for appeal. Youla, 241 F.3d at 301. In his pro

se brief, Coffie argues that his counsel was ineffective for failing to attack his conviction

under Terry and Brady, and for failing to consult with him regarding the instant appeal.

The government responds that because no record was developed in the District Court

which would enable this Court to assess trial counsel’s failure to request that the firearm

be suppressed and to assess his failure to object to the alleged Brady violation, this Court

should deny Coffie’s claim of ineffective assistance of counsel pursuant to United States

v. Thornton, 327 F.3d 268 (3d Cir. 2003). The government argues that this claim may

only be raised in a collateral attack under 28 U.S.C. § 2255.

                                             III.

       Our independent review of both issues confirms that Coffie’s appeal is

frivolous. First, Coffie’s counsel is correct that an appeal from the sentence entered by

the District Judge would be frivolous. A jury convicted Coffie of violating § 922(g) –

which carries a base offense level of 24 – and the jury also found that Coffie had been

convicted of seven predicate violent felony offenses. As a result, the District Judge

properly applied § 924(e), which imposes a mandatory minimum sentence of 15 years

imprisonment, and triggers the application of U.S.S.G. § 4B1.4. Section 4B1.4 raised

Coffie’s offense level to 33. Based on Coffie’s record of prior convictions, and on the


                                             -5-
fact that he was on parole at the time the instant offense was committed and that he had

been released from custody less than two years prior to committing the instant offense, he

was assigned a criminal history category of VI. The corresponding sentencing range

under the guidelines is 235-293 months. The District Judge imposed a sentence of

imprisonment of 235 months, at the bottom end of the applicable range.

       Moreover, we agree with the government that on the record before us, Coffie’s

ineffective assistance of counsel claim cannot be entertained. In Thornton, we noted that

although we may address the claim of ineffective assistance of counsel on direct appeal

when the record is sufficient to allow determination of the issue, it has long been our

practice to defer the issue of ineffectiveness of trial counsel to a collateral attack under

§ 2255. 327 F.3d at 271-72. We will therefore deny Coffie’s pro se claim of ineffective

assistance of counsel without prejudice to his right to bring this claim in a collateral

attack pursuant to 28 U.S.C. § 2255.

       As required by Anders, Coffie’s counsel has conducted a conscientious review of

the record and has concluded that there are no non-frivolous issues on which to base an

appeal. Satisfied that all of the Anders requirements have been met, we will affirm the

judgment of the District Court and we will grant counsel’s motion to withdraw. We

certify that the issues presented in the appeal lack legal merit and thus do not require the

filing of a petition for writ of certiorari with the Supreme Court. 3d Cir. LAR 109.2(b).




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