United States v. Berry

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-2-2008
USA v. Berry
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4582
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4582
UNITED STATES OF AMERICA
v.
LEROY BERRY,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 02-cr-00093-14)
District Judge: Honorable Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
December 1, 2008
Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges
(Opinion filed December 2, 2008 )
OPINION
AMBRO, Circuit Judge
Leroy Berry pled guilty to one count of conspiracy to distribute and possess with
intent to distribute one kilogram or more of heroin, five kilograms or more of cocaine,
and/or fifty grams or more of cocaine base. The District Court sentenced Berry to a term
of 135 months’ imprisonment and five years of supervised release. Berry then filed a
timely pro se motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, in which he
argued that his sentencing counsel was ineffective for failing to request a downward
adjustment to account for Berry’s alleged minor/minimal role in the crime.1 The District
Court denied the motion to vacate on the ground that a motion for such a downward
adjustment would have been meritless, and therefore counsel’s failure to make such a
motion was not ineffective assistance of counsel. On appeal, Berry argues that the
District Court misapplied our Court’s holding in United States v. Headley, 923 F.2d 1079,
1084 (3d Cir. 1991), and thus mistakenly concluded that a minor/minimal role adjustment
was unwarranted. We have jurisdiction under 28 U.S.C. § 1291, and will affirm the
District Court’s ruling.
I. Standard of Review
We exercise plenary review over the legal component of a claim of ineffective
assistance of counsel. See United States v. Smack, 347 F.3d 533, 537 (3d Cir. 2003). We
review the underlying facts for clear error, and exercise independent judgment over
whether these facts show ineffective assistance of counsel. See id.1
In his initial § 2255 motion, Berry presented two additional claims. First, he
argued that his due process rights, under the Fifth Amendment to the United States
Constitution, had been violated by the use at sentencing of prior state convictions that
were not the result of grand jury indictments. Second, he argued that he received
ineffective assistance of counsel because his sentencing counsel failed to object to the use
of those prior state convictions. The District Court rejected both claims, and we granted a
certificate of appealability only with regard to Berry’s third argument that counsel was
ineffective for failing to seek a downward adjustment to account for Berry’s alleged
minor/minimal role in the offense.
2
II. The Evidence Supports the District Court’s Finding that Berry Did Not Play a
Minor or Minimal Role
In order to make out a claim of ineffective assistance of counsel, Berry must show
(1) that counsel’s performance was deficient, i.e., unreasonable under prevailing
professional standards, and (2) that he was prejudiced by counsel’s deficient performance.
See Strickland v. Washington, 466 U.S. 668, 687 (1984). Notably, counsel is not
ineffective for failing to raise meritless claims. See Parrish v. Fulcomer, 150 F.3d 326,
328 (3d Cir. 1998).
The United States Sentencing Guidelines allow district courts to reduce the
sentence of those offenders who play only a minor or minimal role in the offense.2 Such
reductions should be reserved for those defendants who are “substantially less culpable
than the average participant.” See Headley, 923 F.2d at 1084. In Headley, the defendant
acted on several occasions as a courier for a drug organization that operated in Miami,
Brooklyn, and Philadelphia. See id. at 1081. She transported drugs from Brooklyn
2
Section 3B1.2 states:
Based on the defendant’s role in the offense, decrease the
offense level as follows:
(a) If the defendant was a minimal participant in any criminal
activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
U NITED S TATES S ENTENCING G UIDELINES M ANUAL § 3B1.2 (1998).
3
(where she lived) to Philadelphia (the epicenter of the conspiracy where the drugs were
packaged and sold). See id. Because Headley was a mere courier who lived well outside
Philadelphia, we recognized that counsel was on notice that she may have been
substantially less culpable than her co-defendants. See id. at 1084. Under those
circumstances, we held that counsel’s performance was deficient for failing to move for a
§ 3B1.2 downward adjustment.3 See id.
Headley set out the following factors for evaluating the appropriateness of such an
adjustment: “the culpability of a defendant courier must depend necessarily on such
factors as the nature of the defendant's relationship to other participants, the importance
of the defendant's actions to the success of the venture, and the defendant's awareness of
the nature and scope of the criminal enterprise.” See id. (quoting United States v. Garcia,
920 F.2d 153, 155 (2d Cir. 1990)). These factors assess the defendant’s “involvement,
knowledge and culpability” in the offense, and thus are relevant not just to drug courier
cases like Headley, but to all cases involving a § 3B1.2 adjustment. See United States v.
Isaza-Zapata, 148 F.3d 236, 239 (3d Cir. 1998). Because § 3B1.2 is ultimately concerned
with the defendant’s relative culpability, when applying the Headley factors district courts
must compare the defendant’s involvement, knowledge and culpability with that of the
other participants in the criminal conduct. See id.
Berry argues that the District Court mistakenly compared his culpability to that of
3
In Headley, we did not determine whether such a downward adjustment was
warranted. We merely decided that counsel’s failure to move for an adjustment at
sentencing was professionally unreasonable. See Headley, 923 F.2d at 1084.
4
the defendant in Headley, as opposed to comparing his (Berry’s) culpability to that of his
co-offenders. He further argues that had the Court properly applied Headley, it would
have found a § 3B1.2 adjustment warranted. We disagree with both contentions.
We do not read the opinion cited by Berry, United States v. Berry, Crim. No. 02-
93-14, slip op. at 6-8 (W.D. Pa. July 6, 2005), as indicating that the District Court directly
compared his culpability to that of Headley. Instead, the Court properly compared Berry
to his co-conspirators. See id. This comparison of culpability showed that, unlike in
Headley (where the defendant may have been substantially less culpable than her co-
conspirators because of her courier status and her geographic distance from the epicenter
of the conspiracy), in this case Berry’s role in the offense reflected a high level of
knowledge and involvement.
Although not framed in Headley terms,4 the District Court found ample evidence
to suggest that Berry was not substantially less culpable than the average participant in
the offense. Of particular relevance to this inquiry, the Court found that: (1) Berry
assisted Donald Lyles, the “kingpin” of the crime organization, in distributing heroin; (2)
he collected money for Lyles; (3) he sent another individual to receive a large delivery of
drugs; (4) he sold heroin to customers of his own; (5) and he lived in Pittsburgh, the
center of the drug conspiracy. See Berry, Crim. No. 02-93-14, slip op. at 6-8. Indeed, the
4
The fact that the District Court did not explicitly mention the Headley framework
is irrelevant. We have refused to elevate the form of a district court’s § 3B1.2 analysis
over its substance. See, e.g., United States v. Carr, 25 F.3d 1194, 1208 (3d Cir. 1994)
(affirming court’s ruling despite its failure to use Headley framework).
5
uncontested evidence presented at the sentencing hearing, along with the information
contained in the also-uncontested Presentence Report, support the District Court’s
finding. See id. at 8.
Because the District Court properly applied the Headley factors, and the evidence
clearly indicates that Berry was not a minor/minimal participant in the offense, a motion
for a downward adjustment under § 3B1.2 would not have succeeded. Accordingly,
counsel’s performance was not deficient for failing to make such a motion.5 For these
reasons, we affirm the District Court’s denial of Berry’s motion to vacate.
5
Because we determine that Berry has failed to show counsel’s performance was
deficient, we need not reach the issue of whether he was prejudiced.
6