2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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# U S A v . S h a w P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t 02-2269

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w . v i l l a no va . e du/thir dc ir c uit_2003/539NOT PRE CEDENT IAL

UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT
No. 02-2269
UNITED S TATES OF AMERI CA

v. DOUGLAS M. SHAW, JR.

a/k/a D Do ugl as M . Sh aw , Jr., Appellant
On A ppeal from the Un ited States District Co urt

for the Dis tri ct of New Jersey (D.C. No. 01-cr -00267-02) District Judge: H on. Faith S. H ochbe rg
Submitte d Under Third Circ uit LAR 34.1(a)

May 22, 2003 Be for e: S CIR ICA , Chief Judge , SL OV ITE R a nd N YG AA RD , Circu it Judges (Fil ed May 22, 2003)

OPINI ON OF THE COURT2

SL OV ITE R, Circu it Judge
. In this a ppea l from his co nvictio n fo r con spirac y to distribute and p osses s with intent to dis tri bute more than 50 grams of cra ck cocaine, Appellant Douglas Shaw argues that t he Government did not

prove that

the cocai ne base he sol d was in fact crack. I. Shaw entered i nto a ple a agreement dated June 8, 2001, in whic h he agreed that, on or about J anuary2001 untilApril 17, 2001, he conspi red with ot hers t o dist

ribut e and possess wit

h intent to dis tri bute in e xcess of 50 gr ams of crack cocai ne. At the change of plea hearing, he confessed t o dist ribution of approxi mately60 grams of crac k cocaine on April 17, 2001 to Leron Jac kson at a Burger King rest aurant. In respons e to an i nquiryby the Dist rict Court, Shaw st ated that he under stood the terms of hi s plea agreement which contai ned the words “cr ack cocaine .” App. at 27-8. The Dist

rict Court then a ccepted Shaw’s guilt

y pl ea. At the sentencing hearing, Shaw’s counsel moved for a downward departure, on various grounds which were, as the Government stat ed, “el oquently

advanced.” App. at 53. The court denied the motion . Thereafter, co unsel soug ht reconsidera tion of Sh aw’s
career offender st atus and was suc cessfulon that motion. Shaw was sent enced to 144 months in prison, inst ead of being s ubject to a sentencing ra nge of 262 to 327 months app licab le to a care er o ffe nde r. On appe al, Sha w a rgue s that the Go vern men t did no t prov e that th e coc aine b ase in3

his poss ession on Apri l 17, 2001 was cr ack. His couns el fi led a bri ef pursuant to And ers v. Ca lifornia , 386 U.S. 738 ( 1967). To satisfythe And ers requireme nts, appellant’s counsel must

“sati sfy the court

that he or she has t

horoughlyscoured the record i n search of appealabl e issue s” and “expl ain why t he issue s are frivolous .” United States v. M arvin , 211 F.3d 778, 780 (3d Cir. 200 0). Und er And ers , if, after review of the dist

rict court r ecord and a cons cientious i nvesti gation, counsel i s convinced t hat the appeal present s no iss ue of arguabl e merit , counselmay properlyask to wit hdraw while fi ling a bri ef re ferring t o any thi ng in t he rec ord that mi ght arguab lysupport the appe al. 386 U.S. at 744. The defendant is given an opportunity t o file a brief, and Shaw filed a pro se brief. II. As n oted a bov e, Sha w a rgue s that the Go vern men t shou ld hav e bee n req uired to prove that

the subst ance in hi s possess ion was in fac t “cra ck cocaine” for purpose s of sentenci ng. He does not argue that the subst ance was not cr ack and, si gnific antly , has adm itted that h e w as selling crack . In an e xhau stive co lloquy w ith the D istrict Co urt, Shaw an swered as follows:

Q On t hat

date di d y ou g etapp ro xi mat el y 60. 4 gr ams gro ss o f cr ack c ocai ne fr om an i ndi vid ual known t o y ou as ‘E’ and s om etime s refe rred to you as E sai, w hich you plann ed to sell to the individ ual? A Yes. Q Later on Apri l 17th, 2001, did y ou appear at the Burger4 King parking l ot with approximatel y 60. 4 grams gross of crack cocai ne, get

into a ve hicle with Leron Jac kson and the indivi dual and hand t

he crack cocai ne to Leron? A Yes.

. . . Q In or about March 20 01 did you purchase app ro xi mat el y 100 hun dr ed g ra ms o f cr ack coc ai ne f

ro m a New Y ork City

source known to y ou as Mohan also known as ‘Mo o’? A Yes. App. at 37. He al so a dmi tted t

hat he f ul lyund er st ood th e t er ms o f hi s a gr eeme ntand th e crime to which he was ple ading guil ty . Under the c ircumst ances, we re ject Shaw’s argument that t he Government fail ed to prove t hat the substanc e was crack cocai ne. There was no need to prove something Shaw had admitted. Sha w a lso arg ues th at his trial co unse l gave ineff ective assistan ce. W e hav e held that s uch cha lleng es sh oul d be bro ugh t in co llater al ac tion s an d no t on dire ct ap pea l. United States v. Hay wood , 155 F.3 d 67 4, 67 8 (3 d C ir. 19 98)
. In Haywood , this court reiterate d that t

he onlyexcepti on to thi s rule is “‘ [w]here the record is suffici ent to a llow a dete rmina tion of ineff ective assistan ce of coun sel, [an d] an evide ntiary hea ring to develop the facts is not

needed.’ ” Id. (quoti ng United States v. Headle y , 923 F.2d 1079, 1083 (3d Cir. 1991)). This is not such a ca se.III.

Fo r the reas ons set f orth , we wil l aff irm t he ju dgm ent o f co nvi ction and sen tenc e. We will grant

counsel’ s motion t o be reli eved.

/s/ Dolores K. Sl oviter Circuit Judge