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


3-17-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4508




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"USA v. Brown" (2004). 2004 Decisions. Paper 932.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 02-4508

                           UNITED STATES OF AMERICA




                                            v.

                                  JUANITA BROWN,

                                               Appellant

                                ____________________

           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (Dist. Court No. 02-cr-00051)
                 District Court Judge: Hon. Mary A. McLaughlin


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 9, 2004

 Before: SLOVITER, NYGAARD, Circuit Judges, and OBERDORFER,* District Judge.

                            (Opinion Filed March 17, 2004)




      *
        The Honorable Louis F. Oberdorfer, Senior District Judge, United States District
Court for the District of Columbia, sitting by designation.

                                           1
                                ______________________

                               OPINION OF THE COURT
                               ______________________

OBERDORFER, District Judge:

       Juanita Brown appeals from her conviction pursuant to a plea agreement. Brown

argues that her trial level counsel’s performance was ineffective in violation of the Sixth

Amendment to the United States Constitution. For the reasons stated below, we dismiss

her appeal.

       Pursuant to a plea agreement, Brown pleaded guilty to one count of making false

statements and representations to federally licensed firearms dealers in violation of 18

U.S.C. § 924(a)(1)(A). Following a hearing, the district court imposed a prison term of

21 months and a supervised release term of three years.

       On appeal, Brown argues that her counsel’s performance at the sentencing hearing

was constitutionally ineffective because her counsel stipulated to the applicability of a

two-level enhancement under USSG § 2K2.1(b)(4) (obliterated serial number), and failed

to object to the application of a two-level adjustment under USSG § 3(C)1.1 (obstruction

of justice). However, “we have stated repeatedly that Sixth Amendment claims of

ineffective assistance of counsel should ordinarily be raised in a collateral proceeding

pursuant to 28 U.S.C. § 2255 rather than on direct appeal.” United Sates v. Jake, 281

F.3d 123, 132 n.7 (3d Cir. 2002) (collecting cases); see also United States v. Thornton,

327 F.3d 268, 271 (3d Cir. 2003) (“[I]t is preferable that such claims be considered on

                                             -2-
collateral review rather than on direct appeal.”) (citing Massaro v. United States, 123 S.

Ct. 1690 (2003). 2

       The rationale underlying this rule is that “‘[w]hen an ineffective-assistance claim

is brought on direct appeal, appellate counsel and the court must proceed on a trial record

not developed precisely for the object of litigating or preserving the claim and thus often

incomplete or inadequate for this purpose.’” Thornton, 327 F.3d at 272 (quoting

Massaro, 123 S. Ct. at 1694). In contrast, the district court is well-positioned to receive

evidence that develops the record on the issues germane to a claim for ineffective

assistance of counsel. Moreover, “‘the § 2255 motion often will be ruled upon by the

same district judge who presided at trial. The judge, having observed the earlier trial,

should have an advantageous perspective for determining the effectiveness of counsel’s

conduct and whether any deficiencies were prejudicial.’” Id.

       Our preference for ineffective assistance claims being raised in the first instance in

a habeas petition to the district court is sufficiently strong that recently, in a case where

the “[g]overnment concede[d] defense counsel’s error,” Thornton, 327 F.3d at 272

(emphasis supplied), we nonetheless denied the appellant’s claim of ineffective assistance



       2
         “We have noted an exception to this practice where the Sixth Amendment claim
of ineffective assistance of counsel is predicated on an actual showing of conflict of
interest between the attorney and the accused as apparent from the face of the record.”
Jake, 281 F.3d at 132 n.7 (citing Government of the Virgin Islands v. Zepp, 748 F.2d 125,
133-34 (3d Cir. 1984)). We need not decide whether that exception is still viable in light
of Massaro, 123 S. Ct. 1690, because even if it is, Brown advances no arguments
concerning conflict of interest.

                                              -3-
of counsel, though “without prejudice to his right to raise th[e] claim on a collateral attack

brought pursuant to 28 U.S.C. § 2255.” Id. at 273. Brown identifies no reason why this

outcome is not appropriate here. Accordingly, we will dismiss Brown’s appeal without

prejudice to her right to raise a claim for ineffective assistance in a petition for a writ of

habeas corpus to the district court.
