Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-1-2006
USA v. Ruffin
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3090
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3090
UNITED STATES OF AMERICA
v.
MAJOR LEE RUFFIN,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Crim. 04-cr-00422
District Judge: The Honorable Freda L. Wolfson
Submitted Under Third Circuit LAR 34.1(a)
May 9, 2006
Before: BARRY, SMITH and ALDISERT, Circuit Judges
(Opinion Filed: June 1, 2006 )
OPINION
BARRY, Circuit Judge
Major Lee Ruffin appeals his conviction and sentence. Ruffin’s counsel has filed
a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), claiming
that there are no nonfrivolous grounds for appeal. Ruffin has chosen not to file a pro se
brief. We will affirm Ruffin’s conviction and sentence, and grant counsel’s motion to
withdraw.
I.
On March 28, 2003, Ruffin was arrested after arriving at a motel where he had
arranged to sell drugs to a confidential informant. The police seized 63.4 grams of crack
cocaine from Ruffin’s car. Ruffin pled guilty on February 10, 2005 to one count of
conspiracy to distribute and possession with intent to distribute cocaine. At sentencing,
the District Court rejected the two-level increase in the offense level recommended in the
Presentence Investigation Report for Ruffin’s managerial or supervisory role in the
offense, granted a three-level decrease in the offense level for acceptance of
responsibility, and found that Ruffin should be accorded the benefits of a two-level
decrease by virtue of the safety valve provision of the U.S. Sentencing Guidelines, which
further allowed him to be sentenced below the mandatory minimum ten-year sentence.
The Court sentenced Ruffin to 70 months imprisonment, the lowest possible term under
the applicable Guidelines range of 70-87 months.
II.
“[W]here, upon review of the district court record, trial counsel is persuaded that
the appeal presents no issue of even arguable merit, trial counsel may file a motion to
withdraw and supporting brief.” 3d Cir. LAR Misc. 109.2(a). In reviewing that motion
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to withdraw, we must determine “(1) whether counsel adequately fulfilled the rule’s
requirements; and (2) whether an independent review of the record presents any
nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001) (citations
omitted).
A.
We must be satisfied “that counsel has thoroughly examined the record in search
of appealable issues” and has “explain[ed] why the issues are frivolous” in his or her
Anders brief. Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). Our
review convinces us that Ruffin’s counsel searched the record and presented all possible
grounds for appeal. Indeed, after counsel informed Ruffin that he could find no
nonfrivolous issues for appeal, Ruffin suggested four possible issues, which counsel
explored in his brief, and which we will address.
B.
When conducting an independent review of the trial court record, we “confine our
scrutiny to those portions of the record identified by an adequate Anders brief.” Id. at
301. The four issues raised by Ruffin’s counsel are: (1) the soundness of Ruffin’s guilty
plea; (2) whether Ruffin was entitled to a jury trial on the issue of Guidelines sentencing
enhancements; (3) whether the District Court properly counted Ruffin’s prior conviction
for possession of cocaine when computing his criminal history category; and (4) whether
Ruffin’s prior counsel was ineffective.
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As to the first issue, a guilty plea must be “a voluntary and intelligent choice
among alternative courses of action.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting
North Carolina v. Alford, 400 U.S. 25, 31 (1970)). The record leaves no doubt that
Ruffin’s plea was knowing and voluntary. His signature appears on his application for
permission to enter a plea of guilty and on his plea agreement, which he had ample time
to review with counsel. The plea colloquy was thorough, with Ruffin stating that he was
not under the influence of any drugs or alcohol and indicating his understanding of the
significance of the rights he was surrendering and the ramifications of his guilty plea.
Second, Ruffin was not entitled to a jury trial on Guidelines sentencing
enhancement issues. Aside from the fact that United States v. Booker, 543 U.S. 220
(2005), created no such right, Ruffin did not receive any enhancement and admitted all of
the facts upon which his sentence was based.
Third, Ruffin’s October 2000 conviction for cocaine possession, for which he
received two years probation, was properly considered in determining his criminal history
category. Any probationary sentence “that was imposed within ten years of the
defendant’s commencement of the instant offense is counted” in computing the
defendant’s criminal history. U.S.S.G. § 4A1.2(e)(2). The instant offense was committed
on March 28, 2003, not even three years after the previous offense.
Finally, Ruffin asserts that he received ineffective assistance of counsel from the
attorney who represented him during his change of plea hearing. Prior to that hearing,
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Ruffin informed the District Court that he wished to discharge that attorney, but then
changed his mind, and submitted a letter to the Court during the hearing expressing his
satisfaction with the attorney’s representation of him. For reasons unclear in the record,
his current attorney, who now seeks to withdraw, took over the representation at some
point between the change of plea hearing and the sentencing hearing. Regardless of what
formed the basis of Ruffin’s initial, and now current, dissatisfaction with his first
attorney, his ineffective assistance claim is premature, because such claims must
ordinarily be raised in a collateral attack pursuant to 28 U.S.C. § 2255, and not on direct
appeal. United States v. Jake, 281 F.3d 123, 132 n.7 (3d Cir. 2002).
III.
We are satisfied that counsel has thoroughly examined the record in search of
appealable issues and has explained why any such issues are frivolous. Our own
independent review of the record reveals no nonfrivolous issues. Therefore, we will
affirm the judgment of conviction and the sentence, and we will grant counsel’s motion to
withdraw.
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