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


4-25-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2400




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Recommended Citation
"USA v. Solis" (2003). 2003 Decisions. Paper 621.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/621


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 02-2400


                          UNITED STATES OF AMERICA

                                           v.

                                    JULIO SOLIS,
                                               Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                            D.C. Crim. No. 96-cr-00483-5
                District Judge: The Honorable Garrett E. Brown, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 11, 2003


       Before: BARRY, ROSENN, Circuit Judges and POLLAK,* District Judge


                            (Opinion Filed: April 25, 2003)


                                       OPINION
                                      __________




   *
    The Honorable Louis H. Pollak, Senior District Judge, United States Court for the
Eastern District of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

       As we write primarily for the parties in this case, we will dispense with a full

recitation of its facts. Appellant Julio Solis requests that his conviction and sentence be

vacated and that his case be remanded for further plea negotiations or a new trial on the

basis that he received ineffective assistance of counsel during the course of his decision to

enter a guilty plea. As appellant relates the facts, when he decided to plead guilty, both

he and his attorney, Kevin Sisco, were under the misapprehension that he would qualify

for relief under the so-called “safety valve” provisions of the Sentencing Guidelines, see

18 U.S.C. § 3553(f), when, in fact, his criminal history rendered him statutorily ineligible.

Appellant maintains on direct appeal that because the government’s promise in the plea

agreement to recommend the application of the safety valve was the primary inducement

which drove his decision to plead guilty, his attorney’s failure to discover his ineligibility

prior to the plea amounted to constitutionally ineffective assistance of counsel.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and appellate

jurisdiction is proper under 28 U.S.C. § 1291.

       In general, we will not entertain a defendant’s claim of ineffective assistance of

counsel on direct appeal. See, e.g., United States v. Givan, 320 F.3d 452, 464 (3d Cir.

2003); Marshall v. Hendricks 307 F.3d 36, 86 (3d Cir. 2002). Among the reasons that

such a claim is not usually cognizable on direct appeal is the very important fact that there

will not in the typical case exist a developed enough record upon which to assess the



                                              2
efficacy of defense counsel. See United States v. Jake, 281 F.3d 123, 132, n. 7 (3d Cir.

2002). A narrow exception to this general rule exists, however. “In some cases, albeit

rare[ly], we may have a sufficient record on appeal to decide the issue and avoid the

considerable effort of requiring the defendant to institute a collateral proceeding in order

to raise the ineffective assistance of counsel claim.” United States v. Cocivera, 104 F.3d

566, 570-71 (3d Cir. 1996).

       Appellant argues that this case falls within the narrow exception. We disagree.

The record is devoid of much of the evidence necessary to resolve the issue of ineffective

assistance. To be sure, appellant has already litigated a habeas corpus petition and,

following remand, an evidentiary hearing was held at which testimony was taken. The

scope of our remand, however, was limited to the question of whether counsel failed to

provide effective assistance of counsel when he did not file a notice of appeal. There was

no testimony that counsel gave (or did not give) appellant any assurance prior to the plea

as to what he could expect his sentence to be, or whether he was eligible for the safety

valve. In that same vein, Rap sheet data is ordinarily relied on by the prosecution and the

defense in the plea bargaining process, and defense counsel needs to ascertain the facts

underlying what is reported therein. We simply cannot tell whether counsel knew or

should have known that there was anything beyond that listed on appellant’s “rap sheet”

to consider when rendering legal and tactical advice. Thus, the “lack of a fully developed

record readily justifies our reluctance” to adjudicate appellant’s ineffective assistance



                                              3
claim on direct appeal, and we decline to do so. Government of Virgin Islands v. Zepp,

748 F.2d 125, 133 (3d Cir. 1984).

       We will, thus, affirm the judgment of conviction and sentence. We trust that

should appellant pursue his claim of ineffective assistance by means of a collateral attack,

the District Court will be mindful of the fact that he has already served more than half of

his ten-year sentence and adjudicate his claim expeditiously. 1




TO THE CLERK OF COURT:

       Kindly file the foregoing opinion.


                                                   /s/ Maryanne Trump Barry
                                                  Circuit Judge




   1
    Given the unusual procedural context of Solis’s prior habeas petition, a collateral
attack alleging ineffective assistance of counsel with respect to the safety valve issue
would not appear to be a “second or successive motion” within the meaning of Section
2255.

                                             4
