                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-1372




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Recommended Citation
"USA v. Jefferson" (2003). 2003 Decisions. Paper 886.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/886


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                                                   NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                         No. 02-1372




               UNITED STATES OF AMERICA

                               v.

                     CARL JEFFERSON,
                                           Appellant




         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                    (D.C. No. 00-cr-00469)
               District Judge: Hon. James T. Giles


           Submitted Under Third Circuit LAR 34.1(a)
                      December 19, 2002

    Before: SLOVITER, McKEE, and ROSENN, Circuit Judges
                (Filed                 )




                 OPINION OF THE COURT
SLOVITER, Circuit Judge.

        Appellant Carl Jefferson, pursuant to a plea agreement with the Government, pled

guilty to the following three counts on which he was indicted: 1) possession with intent to

distribute cocaine base (crack), in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(D);

2) carrying a firearm during and in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924(c); 3) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Although the plea agreement provided that the Government could move pursuant to

U.S.S.G. § 5K1.1 for a sentence below the mandatory minimum term, it gave the

Government discretion whether to do so and the Government did not so move. On appeal,

Jefferson argues that the District Court erred when it did not inquire why the Government

did not file a motion for downward departure. In the alternative, Jefferson seeks a remand

so that he can assert in the District Court a claim of ineffective assistance of counsel for

failing to challenge the Government’s decision not to file for a downward departure.

                                                      I.

        We write only for the parties who are familiar with the facts, which are undisputed.

We therefore refer to the facts only briefly.

        In response to a telephone call of a man with a gun, two Philadelphia police officers

found Jefferson, fitting the description telephoned by a patron of the adjacent bar, standing

on the sidewalk outside of the bar. After Jefferson made a motion as if dropping something

and attempted to cross the street, the officers stopped him and picked up on the curb where

defendant was standing a .38 caliber revolver loaded with three rounds of ammunition and

                                                      2
an obliterated serial number. They took Jefferson into custody, searched him in his cell

upon returning to the police precinct, and found 138 bags of “crack” cocaine, 28 bags of

marijuana and $173 in cash in Jefferson’s shoes and underwear. Jefferson was in

possession of approximately 10.3 grams of crack, and less than 50 kilograms of marijuana.

        Jefferson had two prior felony drug convictions and was ultimately charged with the

three drug offenses referred to above. Jefferson pled guilty on all three counts and entered

into the plea agreement with the Government. App. at 16. Although Jefferson could have

been sentenced to imprisonment from 262 to 327 months because he was a career

offender, the District Court granted his motion for a downward departure pursuant to

U.S.S.G. § 4A1.3 and sentenced him to 180 months imprisonment, the statutory minimum

term.

                                                     II.

        Jefferson argues that the District Court had an obligation to inquire why the

Government had not exercised its discretionary authority under the plea agreement to move

for a downward departure pursuant to U.S.S.G. § 5K1.1. Jefferson offers no support for

this contention, and we know of none. A defendant has the right to challenge the

Government’s decision not to move for a departure notwithstanding a plea agreement and

the defendant must then prove bad faith or a violation of the Constitution on the part of the

Government. Here, Jefferson did not challenge the Government’s exercise of its

discretion, and no case, certainly none in this circuit, holds that the District Court must

initiate an inquiry when the Government does not make a departure motion. See United


                                                      3
States v. Isaac, 141 F.3d 477, 481 (3d Cir. 1998) (government must make § 5K1.1 motion

before District Court can depart).

        We agree with the Government that the District Court can not be held responsible

for not asserting an issue defendant did not raise. Analogizing the plea to a contract, under

contract law the District Court would not be obligated to raise issues of breach that neither

party has raised on its own.

        Jefferson’s counsel suggests that because trial counsel did not raise the issue of the

Government’s failure to move for a downward departure, Jefferson may claim ineffective

assistance of counsel in the District Court. Such a claim should be taken up “in a collateral

proceeding under 28 U.S.C. § 2255.” United States v. Sandini, 888 F. 2d 300, 312 (3d Cir.

1988). This case fails to meet the narrow exception covering an obvious conflict of

interest between defense counsel and the defendant’s interest evidenced by the record.

Moreover, as appellate counsel was also trial counsel, it is not an issue to be considered on

direct appeal.

                                                    III.

        For the reasons set forth, we will affirm the judgment of conviction and sentence.




                                                     4
_________________________

TO THE CLERK:

            Please file the foregoing opinion.




                 Circuit Judge




                                                 5
              UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                             No. 02-1372




                                 UNITED STATES OF AMERICA

                                                   v.

                                        CARL JEFFERSON,
                                                               Appellant




                           On Appeal from the United States District Court
                               for the Eastern District of Pennsylvania
                                      (D.C. No. 00-cr-00469)
                                 District Judge: Hon. James T. Giles


                    Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

                                             JUDGMENT

       This cause came on to be heard on the record from the United States District Court

for the Eastern District of Pennsylvania and was submitted pursuant to Third Circuit LAR

34.1(a) on December 19, 2002.

       On consideration whereof, it is now here ORDERED AND ADJUDGED by this

Court that the judgment of the said District Court entered January 25, 2002, be, and the
same is, hereby affirmed. All of the above in accordance with the opinion of this Court.

                                                ATTEST:




                                                Clerk

Dated:__________________
                                            January 9, 2003




TO:             Marcia M. Waldron, Clerk


FROM:           Judge Sloviter


RE:             United States v. Carl Jefferson
                No. 02-1372


Dear Marcy:

                Enclosed for filing is the not precedential opinion in the above case which
has been cleared in accordance with our procedure. A signed original will be delivered to
your office.




DKS/mv                                            DKS
Enclosure


cc:     Judge McKee (w/copy of opinion)
        Judge Rosenn (w/copy of opinion)
