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


2-23-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3674




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No: 02-3674

                            UNITED STATES OF AMERICA

                                               v.

                                      ERIC DAVIS,

                                            Appellant

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (Crim. No. 01-CR-00076)
                        District Court: Hon. William H. Yohn, Jr.

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 18, 2003

                       Before: ROTH and M cKEE, Circuit Judges,
                         and CUDAHY, Senior Circuit Judge.*

                                    (February 23, 2004)

                                         OPINION

McKEE, Circuit Judge.

       Eric Davis appeals from the district court’s judgment of conviction and sentence.

Because we find that Davis’ ineffective assistance of counsel claim is best raised in a

collateral action, rather than on direct review, we will affirm the conviction and sentence



   *
    Honorable Richard D. Cudahy, U.S. Court of Appeals for the Seventh Circuit, sitting
by designation.
without prejudice to Davis’ right to raise it in a 28 U.S.C. § 2255 petition.

                                               I.

       Since we write only for the parties, it is not necessary to recite the facts of this

case. For our purposes, it is sufficient to note that on February 14, 2001, Davis was

indicted for possession of a controlled substance with intent to distribute in violation of

21 U.S.C. § 841(a)(1) (Count One); carrying a firearm in relation to drug trafficking in

violation of 18 U.S.C. § 924(c)(1)(A)(I) (Count Two); and being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Three). The government also

issued Notices of Forfeiture pursuant to 21 U.S.C. §§ 853(a)(2) and 2461(c) and 18

U.S.C. § 924(d).

       On August 20, 2001, Davis pled guilty to all three counts of the indictment.

During the guilty plea colloquy, the government set forth the essential elements of each

count as well as the factual basis for Davis’ guilty plea. Davis agreed with the

government’s statement of the facts and did not object to the Presentencing Investigation

Report. Davis faced an effective sentencing guideline range of 188-235 months for

Counts One and Three, plus an additional 60 months to run consecutively for Count Two,

for a total of 248-295 months imprisonment. However, the district court granted Davis’

motion for a downward departure under the career offender guidelines.1 On September




   1
    The court denied Davis’ motion for downward departures based on extraordinary
acceptance of responsibility and family and community ties.

                                               2
12, 2002, Davis was sentenced to 63 months on Counts One and Three to run

concurrently with each other and 60 months on Count Two to run consecutively to Counts

One and Three; 6 years of supervised release; a $500.00 fine; and a $300.00 special

assessment. Thereafter, Davis filed a timely notice of appeal.

                                               II.

       Davis’ appointed appellate counsel has filed an Anders brief stating that he is

unable to identify any non-frivolous issue for review. An appointed appellate counsel

who “finds [a] case to be wholly frivolous, after a conscientious examination of” the case,

must so advise the court and request permission to withdraw. Anders v. California, 386

U.S. 738, 744 (1967). Counsel’s request must be accompanied by a “brief referring to

anything in the record that might arguably support the appeal.” Id. The brief must

identify any “issue arguably supporting the appeal even though the appeal was wholly

frivolous,” Smith v. Robbins, 528 U.S. 259, 285 (2000), “explain to the court why the

issues are frivolous,” United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and

show that counsel “thoroughly scoured the record in search of appealable issues.” Id. at

780; see also United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).

       Defense counsel’s Anders brief identifies the following arguably non-frivolous

issues: (1) the district court’s jurisdiction to accept Davis’s guilty plea; (2)

constitutionality of the criminal statutes he was convicted under; and (3) the validity of

the guilty plea. After considering each of these issues, counsel concluded that any claim



                                               3
of error would be frivolous. We agree. The district court had jurisdiction pursuant to 18

U.S.C. § 3231, the criminal statutes at issue appear to be constitutional,2 and Davis’ guilty

plea clearly met the standards of Boykin v. Alabama, 395 U.S. 238 (1969) and Rule 11 of

the Federal Rules of Criminal Procedure.

       As required by Anders, Davis’ appellate counsel provided a copy of his brief to

Davis, who was given time to raise any non-frivolous arguments in a pro se brief. 386

U.S. at 744. In his response brief, Davis raises the aforementioned ineffective assistance

claim with respect to his trial counsel. Specifically, Davis contends that trial counsel told

him to withhold information from the government, which resulted in the government’s

decision not to submit a substantial assistance motion pursuant to U.S.S.G. § 5K1.1 and

factored into the sentencing judge’s decision to deny his motion for a downward

departure for extraordinary acceptance of responsibility. In addition, Davis contends that

counsel prevented him from speaking freely at his sentencing hearing.

       However, Davis’ ineffective assistance claim is premature. Absent extraordinary

circumstances, it is our strong preference to review allegations of ineffective counsel in

collateral proceedings under § 2255 rather than on direct appeal. United States v.

Sandini, 888 F.2d 300, 312 (3d Cir. 1988). Frequently such claims require evidence in




   2
     We have specifically upheld the constitutionality of § 922(g)(1). See United States v.
Gateward, 84 F.3d 670 (3d Cir. 1996). We can not determine anything about the other
two statutes at issue that would raise constitutional concerns. We do not suggest that
future constitutional challenges are foreclosed.

                                              4
addition to the trial record. Id.; see also Massaro v. United States,

– U.S. –, 123 S.Ct. 1690, 1694 (2003). This reasoning applies with equal force here. We

cannot properly evaluate the veracity of Davis’ factual allegations because they are based

solely on attorney-client communications which are not contained in the record.

Moreover, even assuming Davis’ can establish his factual claims, the record is

insufficient to allow us to determine whether counsel’s actions were unreasonable and, if

so, whether Davis was prejudiced. Strickland v. Washington, 466 U.S. 668 (1984).

                                             III.

       For the reasons stated above, we will affirm the judgment of conviction and

sentence without prejudice to Davis’ right to raise an ineffective assistance of counsel

claim in a § 2255 petition.




                                              5
