                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-2-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4582




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-4582


                           UNITED STATES OF AMERICA

                                            v.

                                    LEROY BERRY,
                                            Appellant



                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                      (D.C. Criminal Action No. 02-cr-00093-14)
                     District Judge: Honorable Donetta W. Ambrose


                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 1, 2008


           Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed December 2, 2008 )



                                        OPINION

AMBRO, Circuit Judge

       Leroy Berry pled guilty to one count of conspiracy to distribute and possess with

intent to distribute one kilogram or more of heroin, five kilograms or more of cocaine,

and/or fifty grams or more of cocaine base. The District Court sentenced Berry to a term
of 135 months’ imprisonment and five years of supervised release. Berry then filed a

timely pro se motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, in which he

argued that his sentencing counsel was ineffective for failing to request a downward

adjustment to account for Berry’s alleged minor/minimal role in the crime.1 The District

Court denied the motion to vacate on the ground that a motion for such a downward

adjustment would have been meritless, and therefore counsel’s failure to make such a

motion was not ineffective assistance of counsel. On appeal, Berry argues that the

District Court misapplied our Court’s holding in United States v. Headley, 923 F.2d 1079,

1084 (3d Cir. 1991), and thus mistakenly concluded that a minor/minimal role adjustment

was unwarranted. We have jurisdiction under 28 U.S.C. § 1291, and will affirm the

District Court’s ruling.

                                  I. Standard of Review

       We exercise plenary review over the legal component of a claim of ineffective

assistance of counsel. See United States v. Smack, 347 F.3d 533, 537 (3d Cir. 2003). We

review the underlying facts for clear error, and exercise independent judgment over

whether these facts show ineffective assistance of counsel. See id.

       1
        In his initial § 2255 motion, Berry presented two additional claims. First, he
argued that his due process rights, under the Fifth Amendment to the United States
Constitution, had been violated by the use at sentencing of prior state convictions that
were not the result of grand jury indictments. Second, he argued that he received
ineffective assistance of counsel because his sentencing counsel failed to object to the use
of those prior state convictions. The District Court rejected both claims, and we granted a
certificate of appealability only with regard to Berry’s third argument that counsel was
ineffective for failing to seek a downward adjustment to account for Berry’s alleged
minor/minimal role in the offense.

                                             2
 II. The Evidence Supports the District Court’s Finding that Berry Did Not Play a
                             Minor or Minimal Role

       In order to make out a claim of ineffective assistance of counsel, Berry must show

(1) that counsel’s performance was deficient, i.e., unreasonable under prevailing

professional standards, and (2) that he was prejudiced by counsel’s deficient performance.

See Strickland v. Washington, 466 U.S. 668, 687 (1984). Notably, counsel is not

ineffective for failing to raise meritless claims. See Parrish v. Fulcomer, 150 F.3d 326,

328 (3d Cir. 1998).

       The United States Sentencing Guidelines allow district courts to reduce the

sentence of those offenders who play only a minor or minimal role in the offense.2 Such

reductions should be reserved for those defendants who are “substantially less culpable

than the average participant.” See Headley, 923 F.2d at 1084. In Headley, the defendant

acted on several occasions as a courier for a drug organization that operated in Miami,

Brooklyn, and Philadelphia. See id. at 1081. She transported drugs from Brooklyn

       2
           Section 3B1.2 states:

                 Based on the defendant’s role in the offense, decrease the
                 offense level as follows:

                 (a) If the defendant was a minimal participant in any criminal
                 activity, decrease by 4 levels.

                 (b) If the defendant was a minor participant in any criminal
                 activity, decrease by 2 levels.

                 In cases falling between (a) and (b), decrease by 3 levels.

       U NITED S TATES S ENTENCING G UIDELINES M ANUAL § 3B1.2 (1998).

                                                3
(where she lived) to Philadelphia (the epicenter of the conspiracy where the drugs were

packaged and sold). See id. Because Headley was a mere courier who lived well outside

Philadelphia, we recognized that counsel was on notice that she may have been

substantially less culpable than her co-defendants. See id. at 1084. Under those

circumstances, we held that counsel’s performance was deficient for failing to move for a

§ 3B1.2 downward adjustment.3 See id.

       Headley set out the following factors for evaluating the appropriateness of such an

adjustment: “the culpability of a defendant courier must depend necessarily on such

factors as the nature of the defendant's relationship to other participants, the importance

of the defendant's actions to the success of the venture, and the defendant's awareness of

the nature and scope of the criminal enterprise.” See id. (quoting United States v. Garcia,

920 F.2d 153, 155 (2d Cir. 1990)). These factors assess the defendant’s “involvement,

knowledge and culpability” in the offense, and thus are relevant not just to drug courier

cases like Headley, but to all cases involving a § 3B1.2 adjustment. See United States v.

Isaza-Zapata, 148 F.3d 236, 239 (3d Cir. 1998). Because § 3B1.2 is ultimately concerned

with the defendant’s relative culpability, when applying the Headley factors district courts

must compare the defendant’s involvement, knowledge and culpability with that of the

other participants in the criminal conduct. See id.

       Berry argues that the District Court mistakenly compared his culpability to that of

       3
       In Headley, we did not determine whether such a downward adjustment was
warranted. We merely decided that counsel’s failure to move for an adjustment at
sentencing was professionally unreasonable. See Headley, 923 F.2d at 1084.

                                              4
the defendant in Headley, as opposed to comparing his (Berry’s) culpability to that of his

co-offenders. He further argues that had the Court properly applied Headley, it would

have found a § 3B1.2 adjustment warranted. We disagree with both contentions.

       We do not read the opinion cited by Berry, United States v. Berry, Crim. No. 02-

93-14, slip op. at 6-8 (W.D. Pa. July 6, 2005), as indicating that the District Court directly

compared his culpability to that of Headley. Instead, the Court properly compared Berry

to his co-conspirators. See id. This comparison of culpability showed that, unlike in

Headley (where the defendant may have been substantially less culpable than her co-

conspirators because of her courier status and her geographic distance from the epicenter

of the conspiracy), in this case Berry’s role in the offense reflected a high level of

knowledge and involvement.

       Although not framed in Headley terms,4 the District Court found ample evidence

to suggest that Berry was not substantially less culpable than the average participant in

the offense. Of particular relevance to this inquiry, the Court found that: (1) Berry

assisted Donald Lyles, the “kingpin” of the crime organization, in distributing heroin; (2)

he collected money for Lyles; (3) he sent another individual to receive a large delivery of

drugs; (4) he sold heroin to customers of his own; (5) and he lived in Pittsburgh, the

center of the drug conspiracy. See Berry, Crim. No. 02-93-14, slip op. at 6-8. Indeed, the



       4
         The fact that the District Court did not explicitly mention the Headley framework
is irrelevant. We have refused to elevate the form of a district court’s § 3B1.2 analysis
over its substance. See, e.g., United States v. Carr, 25 F.3d 1194, 1208 (3d Cir. 1994)
(affirming court’s ruling despite its failure to use Headley framework).

                                              5
uncontested evidence presented at the sentencing hearing, along with the information

contained in the also-uncontested Presentence Report, support the District Court’s

finding. See id. at 8.

       Because the District Court properly applied the Headley factors, and the evidence

clearly indicates that Berry was not a minor/minimal participant in the offense, a motion

for a downward adjustment under § 3B1.2 would not have succeeded. Accordingly,

counsel’s performance was not deficient for failing to make such a motion.5 For these

reasons, we affirm the District Court’s denial of Berry’s motion to vacate.




       5
        Because we determine that Berry has failed to show counsel’s performance was
deficient, we need not reach the issue of whether he was prejudiced.

                                             6
