Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-31-2006
USA v. Dwumaah
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1399
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"USA v. Dwumaah" (2006). 2006 Decisions. Paper 1014.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-1399
UNITED STATES OF AMERICA
v.
KWAME DWUMAAH,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Judge: Honorable Christopher C. Conner
District Court No.: 05-CR-00157
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 12, 2006
Before: BARRY, SMITH, and TASHIMA,* Circuit Judges
(Filed: May 31, 2006)
OPINION OF THE COURT
TASHIMA, Circuit Judge.
Appellant Kwame Dwumaah entered a guilty plea to one count of theft of
government monies, in violation of 18 U.S.C. § 641. He received a five-month term of
*
The Honorable A. Wallace Tashima, Senior United States Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.
imprisonment. On appeal, he contends that his prior counsel was ineffective for failing to
object to the amount of loss calculated in the Presentence Investigation Report (“PSR”).
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
over the final order of the district court pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a).
I.
Dwumaah, a citizen of Ghana, was indicted on numerous charges related to his
receipt of student loans from the United States Department of Education. Dwumaah
claimed to be a United States citizen on the loan application forms. After entering a plea
of not guilty, Dwumaah entered into a plea agreement with the government, in which he
agreed to plead guilty to an information charging him with one count of theft of public
monies, in violation of 18 U.S.C. § 641, based on his receipt of a $500 student loan in
November 2000. Under the agreement, the government and Dwumaah agreed “that the
loss to the victim for the offense to which the defendant is pleading guilty is $500.”
However, they further agreed that “the Court will also determine the amount of the loss in
this case under the U.S. Sentencing Guideline provisions governing ‘relevant conduct,’
for the purposes of adjusting the defendant’s base level.” The government agreed to
recommend a sentence within the “advisory guideline range,” but warned that the court
would not be bound by “any recommendations or agreements made by the parties.”
According to the PSR, the government submitted that the total loss,
including all of the loans and grants Dwumaah received at two schools, as well as
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interest paid by the Department of Education on some of the loans, was $75,192.
Dwumaah’s Sentencing Memorandum, filed in response to the PSR, acknowledged that
the loss was in excess of $70,000.
At the sentencing hearing, Dwumaah’s counsel agreed that the amount of the loss
was $75,192. He did object to the denial of an adjustment for acceptance of
responsibility, contending that Dwumaah believed that he obtained the loans properly.
He further argued that Dwumaah was entitled to the acceptance of responsibility
adjustment because he was willing to make restitution in the full amount.
The district court relied on the $75,192 figure in calculating Dwumaah’s offense
level but granted a two-level reduction for acceptance of responsibility, resulting in a
guideline range of 10-16 months, reduced by the statutory maximum to 10-12 months.
The court sentenced Dwumaah to five months’ imprisonment and ordered him to pay
$75,192 in restitution.
II.
Ineffective assistance of counsel claims generally are not addressed on direct
appeal because “‘such claims frequently involve questions regarding conduct that
occurred outside the purview of the district court and therefore can be resolved only after
a factual development at an appropriate hearing.’” United States v. McLaughlin, 386
F.3d 547, 555-56 (3d Cir. 2004) (quoting Gov’t of Virgin Islands v. Zepp, 748 F.2d 125,
133 (3d Cir. 1984)). “Where a claim of ineffective assistance of counsel is based on
attorney incompetence, the lack of a fully developed record often precludes a
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comprehensive inquiry into the elements of strategy or tactics that may have entered into
defense counsel’s challenged decision.” Id. at 556. The court accordingly reserves such
claims “for disposition in section 2255 proceedings.” United States v. Barnes, 324 F.3d
135, 139 (3d Cir. 2003). A narrow exception to this rule exists where the record is
sufficient to allow determination of an ineffective assistance claim. McLaughlin, 386
F.3d at 556; see also United States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003).
Dwumaah contends that his former counsel’s failure to object to the $75,192 figure
determined to be the amount of the loss constituted ineffective assistance. He argues that
the usual rule precluding an ineffective assistance claim on direct appeal does not apply
because the record clearly reveals how he was prejudiced by his counsel’s failure to
challenge the amount.
The narrow exception to our general rule does not apply here because the record is
not sufficient to determine Dwumaah’s ineffective assistance claim. Government counsel
stated at the change of plea hearing that he would present evidence of the amount of the
loss to the court, that he already had given Dwumaah’s counsel a spreadsheet regarding
the amount, and that he would be prepared to establish the amount at an evidentiary
hearing if necessary. None of this evidence is in the record. Thus, similar to Barnes,
where we declined to make factual findings regarding the defendant’s ineffective
assistance claim, we decline to address Dwumaah’s claim. We will therefore affirm the
sentence imposed by the district court and dismiss the appeal without prejudice with
respect to the ineffective assistance of counsel claims. See McLaughlin, 386 F.3d at 556
4
(dismissing without prejudice the appeal “to the extent that it claims ineffective assistance
of counsel”).
Sentence AFFIRMED; ineffective assistance of counsel claims DISMISSED
without prejudice.
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