                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2045




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"USA v. Broskoskie" (2003). 2003 Decisions. Paper 647.
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                                                     NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ___________

                   No. 02-2045
                   ___________

         UNITED STATES OF AMERICA

                          v.

            TIFFANY BROSKOSKIE,

                                     Appellant

                   ___________

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania

 District Court Judge: The Honorable James M. Munley
           (D.C. Criminal No. 00-cr-00179-4)
                     ___________

    Submitted Under Third Circuit L.A.R. 34.1(a)
                 March 6, 2003

Before: ROTH, BARRY, and FUENTES, Circuit Judges.

           (Opinion Filed: April 16, 2003)
           ________________________

            OPINION OF THE COURT
           ________________________




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FUENTES, Circuit Judge:

       On April 19, 2001, Tiffany Broskoskie entered a plea of guilty to one count of

conspiracy to distribute in excess of 500 grams of methamphetamine in violation of 21 U.S.C.

§ 846. On April 5, 2002, the District Court sentenced Broskoskie to a prison term of seventy

(70) months. Broskoskie’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), expressing his belief that Broskoskie cannot raise any non-frivolous issues for our

review, and directing us, as is required under Anders, to the issues that he thought Broskoskie

might raise on appeal.    Broskoskie filed a pro se brief directing us to four additional issues.

       First, counsel notes that the District Court complied with the requirements set forth in

Federal Rule of Criminal Procedure 11 during Broskoskie’s plea colloquy. The District Court

questioned Broskoskie regarding the charge against her in order to ensure that she understood

the charge to which she was pleading guilty, and explained the maximum penalties involved

with that crime. (App. p. 58-60) Broskoskie stated that she understood that she had a right to

have a jury trial where she would be represented by counsel, be able to cross examine

government witnesses and exercise her right against self-incrimination, and require the

government to meet its burden of proof.       Id. at 44-48.   The District Court made sure that

Broskoskie could read and write English, was not suffering from a mental condition, and was

not under the influence of drugs or alcohol, and that her guilty plea was being made voluntarily.

Id. at 42-44, 61. Finally, Broskoskie agreed that she was, in fact, guilty of the crime to which

she was pleading, and acknowledged that the amount of methamphetamine involved in the

offense was in excess of 500 grams. Id. at 58-60, 64-66.




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         Next, counsel notes that Broskoskie might raise one issue with respect to her sentence.

Federal Rule of Criminal Procedure 32(c)(3)(A) requires that, prior to sentencing, a district

court must “verify that the defendant and defendant’s counsel have read and discussed the

presentence report. . . .” See also United States v. Mays, 798 F.2d 78, 80 (3d Cir. 1986)

(holding that district court must “somehow determine that the defendant has had [the]

opportunity” to review the presentence report). In this case, the District Court did not verify

during the sentencing proceeding that Broskoskie had reviewed the presentence report.

         Because no objection was made regarding this failure, the plain error standard applies.

Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 736-37 (1993). We have held

that it is not necessary to remand when the district court failed to verify that the defendant

reviewed the presentence report unless the defendant can make a showing of prejudice. United

States v. Stevens, 223 F.3d 239, 246 (3d Cir. 2000), cert. denied, 531 U.S. 1179 (2001).

Broskoskie has not argued, nor do we find by our own examination of the record, that she was

prejudiced by the District Court’s failure to inquire.    Accordingly, we agree with counsel that

this issue is frivolous.

         Finally, counsel asserts that in all other regards the District Court complied with

Federal Rule of Criminal Procedure 32 during Broskoskie’s sentencing proceeding.        Pursuant

to the United States Sentencing Guidelines, Broskoskie was subject to a maximum sentence

of 120 to 135 months imprisonment.       The District Court granted the government’s motion for

downward departure pursuant to U.S.S.G. § 5k1.1, however, and the resulting Guideline range

was reduced to 70 to 87 months.           The District Court rejected Broskoskie’s motion for




                                                  3
downward departure after recognizing its authority to further depart.    The District Court then

sentenced Broskoskie to the bottom end of the Guideline range.

         In her pro se brief, Broskoskie argues first that the District Court erroneously placed

her in Criminal History Category III, when, in fact, the presentence report placed her in

Criminal History Category II.      Because Broskoskie raises this issue for the first time on

appeal, we review the issue for plain error. Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 736-37.

The government concedes that Broskoskie’s argument is correct.            Paragraph 53 of the

presentence report properly found that Broskoskie had three criminal history points, which

necessarily places her in Criminal History Category II. In paragraph 71 of the report, however,

Broskoskie was erroneously placed in Criminal History Category III.         This error was not

noticed or objected to during the sentencing proceeding.           The District Court sentenced

Broskoskie to 70 months imprisonment, which is the bottom end of the Guideline range for

offense level 25, Criminal History Category III.     If the proper Criminal History Category had

been applied, however, the Guideline range would have been 63 to 78 months. Given that the

District Court sentenced Broskoskie to the bottom end of an erroneously calculated Guideline

range, we will remand for resentencing because we cannot say with certainty that the District

Court would not have imposed a lower sentence based on the properly calculated Guideline

range.

         Broskoskie’s second argument is that the District Court miscalculated her base offense

level.   Specifically, she argues that the District Court incorrectly based her offense level on

the amount of methamphetamine attributable to her by virtue of the conspiracy rather than the

smaller amount of methamphetamine actually distributed by her boyfriend with her assistance.


                                                 4
This issue was not raised in the District Court and is thus subject to plain error review.   Fed.

R. Crim. P. 52(b); Olano, 507 U.S. at 736-37. “[W]hether an individual defendant may be held

accountable for amounts of drugs involved in reasonably foreseeable transactions conducted

by co-conspirators depends upon the degree of the defendant’s involvement in the conspiracy.”

United States v. Collado, 975 F.2d 985, 995 (3d Cir. 1992). Broskoskie received plenty of

notice that she was being held accountable for more than 500 grams of methamphetamine as

part of her guilty plea to the conspiracy count. (App. pp. 54-59) In both her plea agreement

and again during the plea colloquy, she admitted that she was accountable for more than 500

grams of methamphetamine based on her involvement in the conspiracy.         Id. at 17, 37, 64.

Broskoskie’s argument, therefore, is meritless.

        Broskoskie’s third argument is that her sentence violates the rule announced in

Apprendi v. New Jersey, 530 U.S. 466 (2000). As was explained in the preceding paragraph,

however, Broskoskie knowingly pleaded guilty to the charge of conspiring to distribute more

than 500 grams of methamphetamine. The amount of drugs involved in the offense determined

the base offense level. Therefore, Broskoskie’s argument is unavailing. In any event, Apprendi

does not apply here because Broskoskie’s sentence of 70 months did not exceed the statutory

maximum of 240 months permitted by 21 U.S.C. § 841(b)(1)(C).               See United States v.

Johnson, 302 F.3d 139, 155 n. 14 (3d Cir. 2002), cert. denied, 123 S. Ct. 937 (Jan. 13, 2003).




        Finally, Broskoskie argues that the District Court lacked jurisdiction in this case based

upon the holding in United States v. Meacham, 626 F.2d 503 (5th Cir. 1980). In Meacham, the

court found that the district court lacked jurisdiction because the charges of “conspiracy to


                                                  5
attempt to import marijuana” and “conspiracy to attempt to distribute marijuana and to possess

it with the intent to distribute” were not valid charges. Id. at 508-509.   The charges against

Broskoskie involved a “conspiracy to distribute” rather than a “conspiracy to attempt.”     The

charges against Broskoskie were valid.             Therefore, Broskoskie’s final argument is

unpersuasive.

        After carefully reviewing the briefs and accompanying materials of record, we will

affirm the conviction.   Counsel conducted a conscientious review of the record and concluded

that there were no non-frivolous issues that could be raised on appeal, as required by Anders,

386 U.S. at 744. Because counsel has complied with all of the procedures specified in Anders,

we will grant his motion for withdrawal.    In light of the District Court’s erroneous placement

of Broskoskie in Criminal History Category III, however, we will remand this case for

resentencing.    Accordingly, we will discharge current counsel and appoint substitute counsel

pursuant to Local Appellate Rule 109.2(a) to represent Broskoskie during the resentencing

proceeding.




_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                                                /s/ Julio Fuentes
                                                           ___________________________


                                               6
    Circuit Judge




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