United States v. Queen , 71 F. App'x 111 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
7-23-2003
USA v. Queen
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3970
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Recommended Citation
"USA v. Queen" (2003). 2003 Decisions. Paper 347.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3970
UNITED STATES OF AMERICA
v.
KEVIN QUEEN, a/k/a “Ya Ya,”
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim 01-cr-00615)
District Judge: Honorable Mary Little Cooper
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 18, 2003
Before: McKEE, BARRY, and W EIS, Circuit Judges.
(Filed : July 23 2003)
____________
OPINION
WEIS, Circuit Judge.
As a result of a plea bargain with the prosecution, defendant pleaded guilty
to one count of distribution, and possession with intent to distribute crack-cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). As part of the agreement, defendant
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stipulated that he was a career criminal.
The District Court sentenced the defendant to 151 months of imprisonment,
a $500 fine, and a three-year term of supervised release. At the defendant’s request, his
counsel filed this appeal and, following a review of the record, prepared an Anders brief.
The defendant also filed a pro se brief on his own behalf, raising a number of issues.
Defendant first alleges error because counsel failed to argue that defendant
was taking medicine for mental illness. Upon review of the record, though, it appears that
the District Court was aware of this fact, but nevertheless declined a downward
adjustment on the basis of diminution of responsibility. As a result, this Court lacks
jurisdiction to hear such a discretionary ruling. United States v. McQuilken, 97 F.3d 723(3d Cir. 1996).
Insofar as defendant’s assertions can be considered as a claim for
ineffective assistance of counsel, the matter is not properly before the Court on direct
appeal, but may be raised in a motion under 28 U.S.C. § 2255.
Defendant also alleges that the Court erroneously assigned criminal history
points for convictions that were 15 and 16 years old. However, because defendant was
still serving sentences for those crimes after M ay 1996, they were properly considered in
the Guideline computation. In any event, the defendant would have been placed in the
career criminal category because of his other convictions and the stipulation in the plea
agreement.
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Defendant also alleges that he was “set up” by the police on August 30,
2002. Even if true, the assertion is irrelevant because the defendant was sentenced on the
basis of count one, which did not refer to any incident on August 30, 2002. Rather, the
judgment referred only to a sale of crack-cocaine that occurred on M ay 15, 2001.
Defendant also contends that he should have received “credit” for
participating in a proffer session. Defendant did not raise this issue in the District Court
and, moreover, did not enter into a cooperating plea agreement with the government.
This contention must be considered to have been waived. We find no plain error in the
failure to apply a downward departure. See United States v. Brannan, 74 F.3d 448 (3d
Cir. 1996).
Defendant also asserts error because defense counsel failed to object to the
offender designation. However, the record demonstrates that defense counsel did contend
that the career offender status over-represented the defendant’s actual criminal history.
Over this objection, nonetheless, the District Court found that the defendant had at least
five predicate convictions which suffices to establish career offender status. The record
before us refutes any claim of inadequate representation because those points were
specifically raised and carefully considered.
Finally, defendant points out that individuals with more extensive criminal
histories have received downward departures. Plaintiff submits no evidence of analogous
cases to support that allegation and, therefore, it lacks merit.
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We have studied the record of the plea hearing and the sentencing
proceedings and find no error.
Accordingly, we will affirm the Judgement of the District Court, and grant
defense counsel’s motion to withdraw. The issues presented in this appeal lack legal
merit and, thus, counsel is not required to file a petition for certiorari with the Supreme
Court. See Third Circuit L.A.R. 109.2. Insofar as the first contention of the claim of
inadequate representation may be considered, it will be reserved for any section 2255
motion that defendant may file.
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______________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ Joseph F. Weis, Jr.
United States Circuit Judge
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