Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-23-2009
USA v. Ellison
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1903
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Ellison" (2009). 2009 Decisions. Paper 1839.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1839
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 07-1903
__________
UNITED STATES OF AMERICA
v.
LARRY ELLISON,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 05-cr-00619-5)
District Judge: Honorable Cynthia M. Rufe
__________
Submitted Under Third Circuit LAR 34.1(a)
on February 6, 2009
Before: RENDELL and ROTH, Circuit Judges,
and HAYDEN,* District Judge.
(Filed: February 23, 2009)
__________
OPINION OF THE COURT
__________
__________________
* Honorable Katharine S. Hayden, Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.
On June 9, 2006, Larry Ellison entered an open guilty plea to two counts of
knowingly and intentionally distributing cocaine base (crack) in violation of Title 21
U.S.C. § 841(a)(1), (b)(1)(C). The government presented the factual basis for the plea at
the sentencing hearing, asserting that Ellison had sold crack cocaine to an undercover
officer on two occasions. The DEA lab determined that Ellison sold 0.65 grams of crack
on the first occasion and 2.4 grams of crack on the second. Ellison agreed that he had
committed these acts. The Probation Office concluded, in assessing Ellison’s base
offense level under the sentencing guidelines, that Ellison had been responsible for
distributing 3.05 grams of crack.
The District Court sentenced Ellison to 46 months’ incarceration on each count, to
be served concurrently, three years of supervised release, a fine of $1,200.00 and a special
assessment of $200.00. Ellison timely filed a pro se appeal. Ellison’s counsel has filed a
brief requesting permission to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967), stating that he is unable to find any non-frivolous issues for appeal after a
conscientious review of the record. We have jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291.
In assessing an Anders brief, we must determine: 1) whether counsel has
thoroughly examined the record for appealable issues and has explained why any such
issues are frivolous; and 2) whether an independent review of the record presents any
2
non-frivolous issues. United States v. Thomas, 389 F.3d 424, 425 (3d Cir. 2004) (citing
United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001)). If the Anders brief appears
adequate on its face, we review only the portions of the record identified in the brief and
any issues raised by an appellant in a pro se brief. See Youla, 241 F.3d at 300. We find
that counsel’s Anders brief is adequate and, as Ellison has not filed a pro se brief, it will
guide our independent review of the record.
Ellison’s unconditional guilty plea to two counts limits the availability of appellate
relief to claims: 1) that the court lacked jurisdiction to accept the plea; 2) that the plea is
invalid under applicable statutory and constitutional standards; and 3) that the sentence is
illegal. See United States v. Broce, 488 U.S. 563 (1989). None of these categories of
unwaived claims applies here. The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231 and a review of the plea colloquy establishes that Ellison’s guilty plea was
voluntary and knowing in compliance with Fed. R. Crim. P. 11 and Boykin v. Alabama,
395 U.S. 238 (1969). Furthermore, a review of the sentencing hearing transcript
demonstrates that the District Court complied with the requirements of Fed. R. Crim.
P. 32 applicable in Ellison’s case.
Counsel identified one other potential issue: Ellison’s allegation that his trial
counsel was ineffective. Counsel, through his correspondence with Ellison, states that
Ellison believes that his trial counsel was ineffective because he did not request that the
drugs at issue in his guilty plea be weighed independently. We should not entertain
3
ineffective assistance of counsel claims on direct appeal, as the proper avenue for such
claims is through a collateral proceeding in which the factual basis for the claim may be
developed. See United States v. Thomas, 389 F.3d 424, 429 (3d Cir. 2004). We shall
defer ineffective assistance of counsel claims to a collateral attack unless the record is
sufficient for us to address the claim on direct appeal. See United States v. Thornton, 327
F.3d 268, 271 (3d Cir. 2003). Here, the record is insufficient in this regard. Accordingly,
a review of Ellison’s dissatisfaction with counsel is inappropriate on direct appeal.
Lastly, in its brief, the Government observes that Ellison additionally might have
raised an argument that his case should be remanded for resentencing because a
November 2007 amendment to the sentencing guidelines reduced the offense levels for
crack, noting, however, that this argument must fail. We agree. The sentencing
guidelines provide that the court must use the Guidelines Manual in effect on the date that
the defendant is sentenced, unless doing so would violate the ex post facto clause of the
Constitution. See U.S.S.G. § 1B1.11. Ellison’s base offense level would have dropped
from 22 to 20 under the November 2007 amendment to section 2D1.1(c)(9), and applying
the same 3-level reduction, the appropriate guideline range would have been 37-46
months, rather than the guideline range of 46-57 that the District Court applied pursuant
to the 2006 guidelines. We conclude, however, that the District Court correctly applied
the 2006 guidelines. Furthermore, the District Court emphatically stated that it
recognized that the sentencing guidelines were merely advisory and it had based its
4
decision heavily on an assessment of the “forty-seven years of [the defendant’s] life.”
(App. 120). For the above reasons, this argument would not support an appeal or a
remand.
Our independent review of the record yields no other non-frivolous arguments that
could support an appeal and we are satisfied that the requirements of Anders have been
met. Accordingly, we will AFFIRM the judgment of the District Court and, in a separate
order, grant counsel’s motion to withdraw.
_____________
5