United States v. Croussett

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
1-24-2002
USA v. Croussett
Precedential or Non-Precedential:
Docket 1-1633
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"USA v. Croussett" (2002). 2002 Decisions. Paper 35.
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NOT-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
NO. 01-1633
__________
UNITED STATES OF AMERICA
v.
JOSE CROUSSETT,
Appellant
_________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 92-cr-00047-2)
District Judge: Honorable Franklin S. Van Antwerpen
__________
Submitted Under Third Circuit LAR 34.1(a)
January 16, 2002
Before: RENDELL, FUENTES and MAGILL*, Circuit Judges
(Filed: January 24, 2002)
__________
MEMORANDUM OPINION
__________
RENDELL, Circuit Judge.
On April 22, 1992, Jose Croussett was convicted by a jury of
conspiracy to
distribute cocaine base, in violation of 21 U.S.C. 846, and possession
with intent to
___________________
*Honorable Frank J. Magill, United States Circuit Judge for the
Eighth Circuit,
sitting by designation.
distribute cocaine base, in violation of 21 U.S.C. 841(a)(10). On March
2, 1993,
Appellant was sentenced to a 19-year prison term. Croussett filed a
motion for
resentencing based on a new sentencing guideline promulgated by the
Sentencing
Commission, and on March 2, 2001 he was sentenced to 15 years in prison.
He now
appeals from the District Court's resentencing order. For the reasons
stated below, we
will affirm the District Court's order. In addition, we will grant the
motion of
Croussett's counsel, Robert E. Sletvold, Esq., for leave to withdraw as
counsel.
Croussett's counsel filed a brief pursuant to Anders v. California,
386 U.S. 738(1967), expressing his belief that there were no non-frivolous issues
presented for our
review. As required by Anders, counsel directed us to portions of the
record that might
arguably support an appeal. He points to two possible issues for appeal.
First, counsel raises whether the District Court abused its
discretion by refusing to
depart downward from the sentencing guidelines range based on Croussett's
willingness
to be deported. The District Court explained that it was "aware of its
power to depart,
but in exercising its discretion the Court would choose not to depart."
If this were indeed
the case we would lack jurisdiction, because we have no jurisdiction to
review the
District Court's exercise of discretion. United States v. Torres, 251
F.3d 138, 145 (3d
Cir. 2001). However, the District Court erred because it did not have
discretion to
depart. We have explained that "in light of the judiciary's limited power
with regard to
deportation, a district court cannot depart downward on this basis without
a request from
the United States Attorney." United States v. Marin-Castaneda, 134 F.3d
551, 555 (3d
Cir. 1998). Here the United States Attorney did not request a departure
from the
Sentencing Guideline, therefore the District Court had no discretion, and,
accordingly,
although we must disagree with its reasoning, we find that the District
Court was correct
not to depart.
The second possible issue counsel raises is whether Croussett's trial
counsel was
ineffective. It is well established that "claims of ineffective
assistance of counsel
generally are not entertained on direct appeal." United States v.
Haywood, 155 F.3d 674,
678 (3d Cir. 1998). We will only review this issue on direct appeal in
cases "[w]here the
record is sufficient to allow a determination of ineffective assistance of
counsel. . . ." Id.As the record before us provides no basis for concluding that counsel's
performance was
inadequate or that it prejudiced the result of the District Court's
proceeding, we will
decline to review this issue. United States v. Roberson, 194 F.3d 408,
413 (3d Cir.
1999).
Moreover, as required by Anders, Croussett was given notice of his
attorney's
desire to withdraw, allowing him the opportunity to raise any issues for
appeal in a pro se
brief. Although Croussett filed such a brief and raised essentially three
additional
grounds for an appeal, we find them lacking in merit.
First, Croussett argues that his sentence violates Apprendi v. New
Jersey, 530
U.S. 466 (2000). The teachings of Apprendi are not implicated here,
however, because
the sentence was within the statutory maximum, 20 years. See United
States v. Depero,
224 F.3d 256, 267 n.5 (3d Cir. 2000). Croussett's other two issues on
appeal that his
conviction was a result of informant/witness testimony that resulted from
promises for
leniency, and that packaging material was improperly included in the total
weight of the
cocaine base simply have no support in the record.
Our review of the record demonstrates no reason to disturb the
judgment of the
District Court. We find that counsel, as required by Anders, conducted a
conscientious
review of the record and correctly concluded that there were no non-
frivolous issues for
appeal. 386 U.S. at 744. We are satisfied that all requirements of the
Anders procedure
have been met.
Accordingly, we will GRANT counsel's request to withdraw and will
AFFIRM
the Order of the District Court.
___________________
TO THE CLERK OF COURT:
Please file the foregoing memorandum opinion.
/S/ Majorie O. Rendell
Circuit Judge
Dated: January 24, 2002