Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-29-2004
USA v. Carston
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4470
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Recommended Citation
"USA v. Carston" (2004). 2004 Decisions. Paper 455.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4470
UNITED STATES OF AMERICA
v.
TROY DONYEH CARSTON,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 02-cr-00012)
District Judge: Honorable Harvey Bartle, III
Submitted Under Third Circuit LAR 34.1(a)
July 13, 2004
Before: RENDELL, BARRY and FISHER, Circuit Judges.
(Filed July 29, 2004)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Troy Donyeh Carston was charged with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). He pled guilty on December 3, 2002. Subsequently,
he was sentenced to 54 months imprisonment to be followed by three years of supervised
release. Carston filed a pro se appeal. Counsel was appointed and has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), requesting permission to withdraw
because she is unable to find any non-frivolous issues for review. Carston was given
notice of his counsel’s desire to withdraw, but has not filed a pro se brief. The District
Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a). We will grant counsel’s motion to withdraw and affirm
the District Court’s judgment of sentence.
As required by Anders, Carston’s counsel has directed us to portions of the record
that might arguably support an appeal. Counsel has identified two possible issues: (1) the
extent of the District Court’s downward departure; and (2) whether Carston’s counsel was
ineffective for failing to assert that he should have received additional “substantial
assistance” credit.
As for the first issue, where a defendant is awarded a downward departure, and
where there is no error in the application of the law or the guidelines, the defendant is not
entitled to appeal the extent of the departure, as it is within the sentencing judge’s
discretion. United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990) (“The
circumstances in which a defendant may appeal a sentence...do not include situations in
which a defendant is seeking an enhanced downward departure.”); see also 18 U.S.C. §
3742(a). The Government made a motion pursuant to U.S.S.G. § 5K1.1 to permit
departure from the guideline range because Carston gave substantial assistance to the
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Philadelphia Police Department by providing information that led to several arrests in
drug-related homicides. The District Court exercised its discretion by departing
downward from the 77 to 96 months imprisonment called for under the guidelines and
imposed a sentence of 54 months. Accordingly, because the District Court exercised
discretion and it did not err in applying the relevant statutory and guideline provisions, we
do not have jurisdiction to review the extent of the downward departure.
Second, we do not think that the record, as it stands now, shows that counsel’s
performance fell below an objective standard of reasonably effective assistance. As we
have observed in the past, where that is the case, a claim of ineffective assistance of
counsel is most appropriately raised through a motion pursuant to 28 U.S.C. § 2255,
which allows for further development of the record on this issue. See United States v.
Givan, 320 F.3d 452, 464 (3d Cir. 2003).
For the reasons stated above, we will grant counsel’s request to withdraw and
affirm the judgment of sentence entered by the District Court.
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