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


3-4-2003

African Amer v. Pittsburgh
Precedential or Non-Precedential: Non-Precedential

Docket 01-1796




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"African Amer v. Pittsburgh" (2003). 2003 Decisions. Paper 760.
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                                               NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


              No: 01-1796
            _______________

    UNITED STATES OF AMERICA


                      v.

          MACARIO GARCIA,

                      Appellant




Appeal from the United States District Court
   for the Middle District of Pennsylvania
 (D.C. Criminal Action No. 00-cr-00026)
  District Judge: Honorable Malcolm Muir


Submitted Under Third Circuit LAR 34.1(a)
           on January 13, 2003


        Before: ROTH, FUENTES
      and ALDISERT, Circuit Judges


      (Opinion filed: March 4, 2003)
                                              OPINION




ROTH, Circuit Judge:

        Macario Garcia appeals the sentence imposed on him by the United States

District Court for the Middle District of Pennsylvania. On November 1, 2000, Garcia pled

guilty to two counts of threatening correctional officers in violation of 18 U.S.C. § 115

(a)(1)(B). During the course of Garcia’s case before the District Court, Garcia was

represented by four different court-appointed attorneys. All were permitted by the court to

withdraw. On February 28, 2001, the District Court ruled that Garcia had forfeited his right

to be represented by counsel in any remaining proceedings due to his extremely serious

misconduct. On March 22, 2001, the District Court sentenced Garcia to 46 months

imprisonment.

        Garcia appeals this sentence on several grounds: (1) the District Court erred in

calculating his offense level under U.S.S.G. § 2A6.1, (2) the District Court erred in not

decreasing his sentence under U.S.S.G. § 2A6.1(b)(5), (3) the District Court erred in

finding he obstructed justice under U.S.S.G. § 3C1.1, (4) the District Court erred in not

applying a downward departure under U.S.S.G. § 3E1.1 for his acceptance of responsibility,

(5) the District Court deprived him of his 6th Amendment right to counsel, and (6) his

attorney was ineffective because he did not request another mental evaluation.

        We have appellant jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary



                                                    2
review over the District Court’s interpretation and legal applications of the Sentencing

Guidelines. United States v. Figueroa, 105 F. 3d 874, 875-76 (3d Cir. 1997) citing

United States v. Hallman, 23 F. 3d 821, 823 (3d Cir. 1994). We review the District

Court’s factual applications of the Sentencing Guidelines for clear error only. Id.

        First, Garcia contends that the District Court erroneously applied U.S.S.G. § 2A6.1

in calculating his offense level. Garcia’s guilty plea, however, was based on a written plea

agreement between himself, his court-appointed attorney at the time, Ronald Travis, and the

U.S. Attorney. In Point 1 of the Plea Agreement, Garcia agreed to plead to two counts

under 18 U.S.C. § 115 (a)(1)(B). In Point 12 of the Plea Agreement, the United States and

Garcia agreed that “the maximum penalty with respect to each count under Title 18, United

States Code, § 115 (b)(4) is not more than three (3) years imprisonment.”                  At Garcia’s

plea hearing, the District Court found the plea agreement to be knowingly, voluntarily and

intelligently accepted. Garcia and his counsel agreed to Garcia being sentenced under §

115 (b)(4). It is clear in the Statutory Index, Appendix A, of the United States Sentencing

Guidelines, that a defendant convicted of violation of § 115 (b)(4) is to be sentenced under

U.S.S.G. § 2A6.1. For that reason, the District Court correctly applied U.S.S.G. § 2A6.1.

        Second, Garcia argues the District Court should have decreased his sentence by four

offense levels under U.S.S.G. § 2A6.1 (b)(5)(B) because the “offense involved a single

instance evidencing little or no deliberation.” Garcia contends that he raised a similar

objection at his sentencing hearing but the District Court ignored it. During the sentencing

hearing, however, Garcia was given a two hour and 26 minute recess to review the

                                                     3
presentence report. Included in the report was Garcia’s sentencing calculation. After the

recess, Garcia was asked if he objected to any portions of the report. He had no objections.

Moreover, the District Court concluded that Garcia’s conduct was part of a concerted

effort on multiple occasions to threaten and assault prison staff. Our review of the record

convinces us that the District Court did not err in so concluding.

        Third, Garcia argues the District Court erred in finding that he obstructed justice

when he asked another inmate, Pierre Cannon, to testify falsely. Garcia contends that this

testimony was not material to and did not relate to the offenses of conviction.

Nonetheless, under U.S.S.G. § 3C1.1 Application Note 4(b), “committing, suborning, or

attempting to suborn perjury” is conduct that suffices as obstruction of justice and permits

an offense level increase of two. We conclude that the District Court did not err in

enhancing Garcia’s offense level under U.S.S.G. § 3C1.1 for his obstruction of justice.

        Fourth, Garcia argues the District Court should have found that he accepted

responsibility under U.S.S.G. § 3E1.1. We are guided by Application Note 5 of U.S.S.G. §

3E1.1, which states “the sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review.” Moreover, case law allows the District Court to

look at any post-offense conduct, whether relating to the original crime or not. See United

States v. Ceccarani, 98 F. 3d 126, 129 (3d Cir. 1996). The District Court is permitted to

consider uncharged conduct in determining whether and how to apply an adjustment for

acceptance of responsibility. United States v. Pollard, 986 F. 2d 44, 47 (3d Cir. 1997).

                                                     4
We conclude that the District Court used relevant and applicable post-offense conduct by

Garcia to determine that a downward departure for acceptance of responsibility was not

warranted under U.S.S.G. § 3E1.1.

        Fifth, Garcia contends that he was subjected to ineffective assistance of counsel

when his last court-appointed attorney did not have him evaluated by a private mental health

professional.            We have repeatedly held, however, that “the proper avenue for

pursuing such claims is through a collateral proceeding in which the factual basis for the

claim may be developed.” See United States v. Theodoropoulos, 866 F. 2d 587, 598 (3d

Cir. 1989). There is a narrow exception to this rule, “where the record is sufficient to

allow determination of ineffective assistance of counsel, an evidentiary hearing to develop

the facts is not needed.” United States v. Headley, 923 F. 2d 1079, 1083 (3d Cir. 1991)

citing Government of Virgin Islands v. Zepp, 748 F. 2d 125, 133 (3d Cir. 1984). Garcia

does not point us to any relevant parts of the record that could be sufficient to allow such a

determination. We conclude that his claims cannot now be reviewed. If he decides to

pursue this issue, he must do so in a later petition for habeas corpus.

        Finally, Garcia argues that the District Court erroneously deprived him of his right

to counsel. Garcia contends the District Court should not have allowed his third of four

court-appointed attorneys, Robert Travis, to withdraw because of a potential necessity for

Travis to be a fact witness in a future proceeding. However, after             Travis’s withdrawal, the

District Court appointed a fourth attorney, Stephen Smith. It was at the time of Smith’s



                                                     5
withdrawal that the District Court deemed Garcia to have forfeited his right to counsel.

        The District Court found that Garcia had engaged in threatening and abusive

misconduct involving all four of his court-appointed attorneys. Further, the District Court

gave Garcia an unequivocal “fair warning” as to his potential forfeiture if he continued this

conduct. This warning was given nine months and two attorneys prior to the District

Court’s decision to forfeit Garcia’s right to counsel because of his abusive and threatening

conduct.

        For the above reasons, we will affirm the judgment of the District Court.




                                                     6
______________________

TO THE CLERK:




      Please file the foregoing Opinion.




                                           By the Court,




                                           /s/Jane R. Roth
                                               Circuit Judge




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