United States v. Broskoskie , 66 F. App'x 317 ( 2003 )

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
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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.
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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
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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
___________________________
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Circuit Judge
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