2004 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
3-25-2004 

# U SA v . D omi a n 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 N o . 03-1455

F o l lo w thi s a nd a dd it ion al work s at : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the 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 at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du
. Re c omme nde d C it at ion
" U SA v . D omi a n " (2004). 2004 D e cisio n s . P ape r 914. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/914NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT NO. 03-1455

________________ UNITED S TATES OF AMERI CA

v. RONALD ANTH ONY DOMIAN

a/k/a Ron, Ro nald D om ian, A ppella nt.

____________________________________ On A ppeal Fro m the U nited States D istrict Court For th e W estern Distric t of P enns ylvania (D. C. Cr im. No. 0 2-c r- 00015 -7E) District Judge: H onorab le Ma urice B. C ohill, Jr.

__________________________ Submitte d Under Third Circ uit LAR 34.1(a)

December 19, 2003 Bef or e: ROTH, MCKEE AND CUDAHY , CIR CU IT JUDGES *

(Fil ed March 25, 2004)

_________________ OPI NION

_________________

* H ono rable R ichard D. C udah y, United States C ircuit Jud ge fo r the S even th Circ uit, sitting by designation.2

ROTH , CIR CU IT JUDGE
. App ellant Rona ld Anth ony Dom ian appea ls from a jud gmen t of the D istrict Court for the West ern District of Pennsy lvania

entere d on February

4, 2003. Defens e counsel has fil ed a motion t o withdraw and supporting brief purs uant to An ders v . Califo rnia , 386 U.S. 738 (1967) . Domian has fi led a pro se brief in support of his appealfollowing be ing advised of t

he opportuni ty

to do so by

this Court, and he also has file d a motion for appo intme nt of n ew coun sel. A grand jury

sitting in the Wester

n Distri ct of Pennsylvania handed down an 18 count indi ctment against 23 defendants, three c ounts of which were directe d at Domian, including conspir acy to possess and dist ribut e 5 kilograms of cocaine in violation of 21 U.S.C. §§ 841 and 846 ( Count One), and t wo counts for using a tel ephone to faci lit ate the conspir acy in violation of 21 U.S.C. § 843(b) (Count s Nine and Ten). Domian pleaded guilt y t o Count One; Counts Nine and Ten were di smissed. The parti es stipulate d at the change of plea he aring t hat Domian was respons ible f or between 500 grams and 2 kilogr ams of cocaine. In addition, Domian ans wered “yes ” when the court asked whether he had ample opport

unity to dis cuss the case with c ounsel, and whether he was satisfi ed wit h the j ob c oun se l h ad d one for hi m. Two months after pl eading gui lty to Count One, but

prior to sent encing, Domian wrote a si x-page le tter

to the Dis tri ct Court, seeking modif icat ion of his pretrial de tenti on and appointment of new counsel for sentencing. In t

he alt ernative he asked t o be given1 Th e co urt a ppe ars to hav e m issta ted th e ran ge a t 60 to 7 1 m ont hs. 3 the ri ght to s peak on his own behal f. Domian expres sed concern in the moti on that counsel would not

pursue t o his satisfaction his argument t hat he was merel y an addi ct sellin g co cain e to o ffs et the cos t of h is ad dicti on, r athe r tha n a m ajor distr ibu tor o f dr ugs . The Distri ct Court de nied the request s for modifi cati on of detent ion and appoi ntment of
new coun sel. At sentencing the Dist

rict Court dete rmined that Domian had an offense l evel of 23 and a cri minal hi story categor y of I II, resul ting in a guidel ine range of 57 to 71 months. 1 Domian received t wo additiona l cri minal hi story points because he was on probati on at the time of t he offense. He received a t hird addi tionalcrimina l his tory point for committ ing an offense while on rel ease from a hal fway house. The court se ntenced Domain to a ter

m of 64 months impri sonment to be f ollowed by

4 year s of supervi sed release. Domian appeals. We have juris dicti on pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. When evaluating the merits of counsel's motion to withdraw, our inquiry is twofold. We must evaluat e (1) whether

counsel' s brie f adequately ful fill s the And ers requir ements, and (2) wh ethe r an ind epe nde nt re view of th e rec ord pre sen ts an y non -friv olo us is sue s. See Un ited Sta tes v. Y oula , 241 F.3d 296, 300 (3d Cir.200 1). Und er And ers , if, after a conscientious examination of the case on appeal, court- appointed counsel "finds his case to be w holly frivo lous ... he shou ld so a dvise the co urt and requ est per missio n to4

with draw ." 386 U.S . at 744 . The requ est mu st be ac com panie d by "a b rief referring to anything i n the record that might arguably support the appeal." Id. The brief must (1) "satisfy the cour t that co unse l has tho roug hly exam ined th e reco rd in se arch o f app ealab le issues," Yo ula , 241 F.3d at 300; (2) identi fy i ssues “arguably supporting the appeal ,” see Smith v. Robbi ns , 528 U .S. 259, 285 (2000); an d (3) “exp lain why the issues a re frivol ous,” Yo ula , 241 F.3 d at 3 00. Counsel identifie s the fol lowing separ ate and di sti nct is sues as arguably supporting an app eal: (1) whe ther the plea co mpo rted with co ntrolling constitutional and statutory standar ds, ( 2) whether t he Distr ict Court

properl y r efused to a djust the offense level pursuant to U. S. S. G. § 3B 1.2 to re flect tha t Do mian wa s a m inima l or min or pa rticipan t in the offense , (3) whether the Distri ct Court properly found as a matt er of fact that Domian
wa s on p roba tion at th e time of the offe nse, an d (4) w hethe r the D istrict Co urt pro perly refused t o adjust

the criminal hi story

levelpursuant

to U. S. S. G. § 4A 1.3 be caus e it
ov er sta ted th e s er io us ne ss of D om ian ’s c rim in al h ist or y. Although we general ly

rely on the And ers brief to identi fy t he issue s rai sed for appeal, we look at the appellant’s pro se brie f as we ll. See Yo ula , 241 F.3 d at 3 01. Dom ian contends in his pro se brief t hat(1) the Distr ict Court erred i n refusi ng a downward adjustment f or a les s culpabl e role wit hout consi dering t

he factor s mandated by Un ited Sta tes v. Isa za-Z apata , 148 F.3d 236 (3d Cir. 1998 ), especially the third factor; (2) the Distr ict Court

erred i n refusi ng to appoint new counsel without

making the2 Third Circu it LA R 1 09.2( a) pro vides that if the cour t finds no ar guab le me rit it will

grant t he motion t o withdraw, whil e if the court f inds ar guable meri t, i t willdischarge coun sel and appo int sub stitute co unse l. The rule do es no t prov ide fo r the circ um stance in wh ich the cour t mak es a d eterm ination that an appe al is not w holly frivo lous, b ut is non ethe less l ack ing in m erit a nd d oes not req uire add ition al br iefin g. Cf. United Stat es v. M arvin , 211 F.3d 778, 782 n.4 (3d C ir. 2000) (disc ussing circumstance not conte mplated by rule). 5 ne ce ss ar y in qu irie s re qu ire d b y Un ited Sta tes v. W elty , 674 F.2d 185 ( 3d Cir. 1982) ; and (3) counse l provi ded ineffective ass ist ance on appeal by fi ling an And ers brief because these issues are not frivolous. We con clude that counsel’s And ers brief i s inadequat e based upon our i ndependent examinati on of the re cord. Both counsel and Domian not ed that a minor participation adjust ment pursuant

to U. S. S. G. § 3B1.2 was an import ant is sue at s entenci ng. Domian contends t

hat the Distri ct Court e rred by not consi dering t

he Isaza- Zap ata factor s and by not making cer

tain r equired f

indings , but we conclude that the is sue ari ses in t

his appeal because counse l inade quatel y r equested a 2-leveladjust

ment for a minor

role in the offense . The app eal thus is not w holly frivolous. How ever, we will grant cou nsel’s motion t o withdraw, and we wil l not appoint new counsel, because the appeal, although not wholly

frivol ous, i s nonethel ess la cking in mer it. Moreover, Domian has demonstrat ed that

he is capa

ble of, and desir es to, argue his own case in the future to the extent that t

here are any further

appeals. 2 Importantly , we revie w only for clear error where a dist

rict court' s decis ion to deny
an a dju stm ent for m ino r pa rticip ation rests on a fac tual d eterm inati on, a s it did her e. See3 These factor s originated i n this circuit in Headleyand are al so refer red to as the Headleyfactor s. Because Domian r efers t o them as the Isaza- Zap ata factor s we will al so. 6 Isaza- Zap ata , 148 F.3d at 237. Under § 3B1.2 of t he sentenc ing guidel ines, a dist rict court i s author ized t o decrease a defendant’ s offense l evel by four leve ls i f the defendant
wa s a “m inima l particip ant” in the crim e, by two levels if he w as a “m inor” p articipan t, and by thre e lev els if

he falls s om ew her e in b etw een . A m inima l particip ant is on e w ho is plainly among the least culpabl e of those involved in t he offense, while a minor particip ant is on e w ho is les s culp able th an m ost oth er partic ipants, b ut w hose role co uld not be d esc ribe d as min ima l. U. S. S. G. § 3B 1.2, cmt. n.4-5 (20 03). The District Cou rt’s determi nation t

hat Domian was not ent itl ed to ei ther a 3 or 4-levelreducti on was not clea rly erro neo us, see United Stat es v. Haut , 107 F.3d 213, 216 (3d Cir. 1997), and any conte ntion to the co ntrary lack s argu able m erit. In ev aluatin g w hethe r the de fend ant’s ro le wa s min or, district c ourts sh ould consider “the nat ure of the defendant' s rel ations hip to t he other parti cipant s, t

he im po rta nc e o f th e d ef

en da nt 's a cti on s to th e s uc ce ss of th e v en tu re , an d t he de fe nd an t's awareness of the nature and scope of the criminal enterprise. " Isaza- Zap ata , 148 F.3d at 239 (citing United Stat es v. Headle y , 923 F.2d 1079, 10 84 (3d C ir. 1991)). 3 The Distri ct Court concl uded that

Domian was not enti tled to a 2-leve l reduction for minor parti cipat ion under § 3B1. 2 after comparing hi s culpabi lit y t o that of

the othe r 22 defe ndan ts in the c onsp iracy. Do mian wa s not a t the top certain ly, but he h ad de alt betwe en 500 grams a nd 2 kilog rams of cocaine d uring the life of th e consp iracy, a figure7

that put him in the middle o f the other de alers involved in the consp iracy. Moreov er, Domian was buying and s elling approximat ely $1,000 worth of coc aine a week duri ng the life of the co nspira cy, whic h the c ourt co nclud ed w as sufficien t to estab lish that h is role
wa s no t min or. Domian argues that the Dis tri ct Court di d not speci fical ly refer t o the Isaza- Zap ata factor s, and i n parti cular, did not make any findings concerni ng the third fact or, hi s lack of knowledge of the s cope of the cons piracy . Ins tead, the court placed t oo much
em pha sis o n th e qu antit y of d rug s attrib utab le to h im. The defendant, however, “bear s the burden of dem onstrating t hat other parti cipants were involved and that, under the [factors] and the fact s of his parti cular c ase, t he minor rol e adjust

ment should apply. ” 148 F.3d at 240 (citing United Stat es v. Pr ice , 13 F .3d 71 1, 735 (3d C ir. 1994 )). De fens e cou nsel d id not li st t he Isaza- Zap ata facto rs in his s enten cing m emo rand um , did no t ask the cour t to mak e a fin ding conc erning Do mian ’s aw arene ss of th e sco pe of the co nspira cy, nor did
counse l appr opr iate ly

es tabl is h Domi an’ s l ack of knowl edg e thr oug h t es ti mony . To som e
ex ten t th is i s tr ue w ith re sp ec t to th e s ec on d fac to r – th e im po rta nc e o f th e d ef en da nt 's action s to the s ucce ss of th e ven ture – a s we ll. In fair ness to c ounsel, he actual ly request ed an adjust

ment under § 3B1.2, and the argum ents he m ade sho wed some a waren ess of the ap propriate con siderations. In object ions t o the pres entence r eport, counsel argued that Domian was a minimal4 Counsel st ated: “Invest igati on by t he undersi gned counsel f or the def

endant re vealed the exi stence of

a complex coordinated sche me involvi ng inter stat e and int ernati onal drug smuggling, exchange of hundreds of thousands of dollars, a complex communicat ion and delive ry netw ork, o peratio n of a che ck ca shing busin ess fo r the lau nder ing o f illegally obtaine d funds, and t

he purchase of real prope rty using funds de rived from drug tr an sa ct io ns . R ona ld

Domi an ’s ro le
.. . w as limi te d t o tha t o f alo w le ve l dru g us er . H e w as an ad di ct w ho pu rc ha se d c oc ain e to sa tis fy h is o w n c he m ica l d ep en de nc y, occasiona lly

resel ling t o others
... . He was not aware of t he scope and st

ructur e of the enterp rise, nor of the activities o f the o thers in volv ed in th e con spirac y. He did not p rofit financi ally

from his i nvolvement. There is no e vidence t hat he had any

knowledge or underst anding of the size of the il legaloperati on, nor t he source of t

he cocaine, other t

han that he had a sourc e to fill his ow n nee ds as a n add ict.” (Po sition o f D efen dant W ith Re spe ct to S ente ncin g F acto rs, at 3 -4.) 8 parti cipant

in an ext ensive cons piracy and enti tled to a 4-leve l downward departur e. 4 At sentencing counsel argued that Domian was unaware of the scope of t he conspir acy, as follows: “He didn’t know that Mr. Licat o and others were purchasi ng real e stat e, that the y had a money l aundering bus iness going on with check cas hing, nor was he aware of the
sourc e of th e coc aine. H is role rela tive to th at of o thers in the co nspira cy, espec ially those t hat were i n the highe r up level s indi cates t hat he i s not – he shoul d be afforded at least a minor rol e reduct ion.” Describi ng Domian’s rol e as minimalor minor, however, is insuffi cient to rai se the Isaza- Zap ata factors and thus the § 3B 1.2 mino r participation issue. As a general m atter, counsel cannot properly invoke thi s provis ion “merel y by reciting to t

he court a

lis t of miti gating f

acts” where , as i n the case of § 3B1.2, a di stri ct court is re quired “to make empiric al judgment s and where fact ual subt leti es can make a rea l diff erence. ” United States v . Soto , 132 F.3d 56, 58 (D.C. Cir. 1997) (i nternalquotati ons removed). Whether5 Ineffect ive ass ist ance of counselclai ms generally ar e not ent ertained on direc t

app eal. See United Stat es v. Headle y , 923 F.2 d at 1 083
. The proper avenue for rais ing suc h cla ims is thr oug h a c ollat eral p roc eed ing
. Id. Howe ve r, ince rt ai n l im it edca se s, we will per mit a defendant to pur sue the cl aim on dire ct appealwhere the re cord is suffici ent 9 Do main ’s role w as m inor “d epen ds on the pa rticular facts of the ca se an d ho w w ell counsel mars hals t

hem,” id. , and suppor

ts them through te sti mony. For example, Spec ial Agent Gorham of the FederalBureau of Investigati on coordinat ed the Eri e Area Gang Law Enforcement (EAGLE ) Task Force and investi gated the drug deal ing act ivities of Paul A. Licat o, Jr . and Michael Col egrande. He could have been cros s-examined on t he scop e of th e con spirac y. We n ote tha t Do mian testified at sente ncing that he and h is fem ale frien d use d coc aine th ems elves a nd o n som e occ asion s sold s mall q uantities to others to help of

fset t he cost, but thi s does littl e to est ablis h that Domian had no knowledge of the nat

ure and scope of t

he conspir acy, because the Distr ict Court is not requir ed to “bel ieve the defendant' s own characte rization that his rol e was minor.” United Stat es v. Rodri guez , 342 F.3d 296, 299 (3d Cir. 200 3). We need not decide, however, whether the fai lure t o adequately argue the IsazaZap ata factor s and int

roduce evi dence in suppor t of an adj ustment for

minor participation is su bsta nda rd p rof

essio nal c ond uct, just as the failure altogethe r to request the de parture
ma y be, see Headley , 923 F.2d at 1083-84, beca

use Domian was not prej udiced by
co un se l’s co nd uc t at se nt en cin g. T he re is n o r ea so na bl e p ro ba bi lity t ha t, b ut fo r c ou ns el's arg uab le err ors, th e res ult o f the pro cee din g w oul d ha ve b een differen t. Stri ckland v. Washington , 466 U.S. 668, 694 (1984)
. 5 A two-level a djustment for minor parti cipat ionand an e vid entia ry hea ring to d eve lop the facts is no t nee ded
. Id. 10 would have reduced t

he guidel ine range to 46 to 57 months, but Domian is not t

he sort of person the minor participation pr ovisi on covers. Even the lea st culpable member of a conspir acy i s not a minor parti cipant

if the extent

of that member’s participation i s not min or. See Uni te d St at es v. Bro wn , 250 F.3d 811, 819 (3d Cir. 2001). Domian’s conduct with res pect t o the conspiracy involved s everal contact s with a major figure in the conspir acy from whom he recei ved cocaine, without prepayment , and he, in tur n, was supply ing cocai ne to othe r indi viduals . This i s acti ve, i ntegralparti cipat ion in t he conspir acy and renders Domian ineli gible f or a minor r ole adj ustment eve n if he was unaware of the compl ete scope of the conspiracy . Domian’s l evel of culpability in the
con spira cy w as a ver age , not sub stan tially les s so . U. S. S. G. § 3B 1.2, cm t. n.3(A ); IsazaZap ata , 148 F.3 d at 2 38. We thus do not fi nd fault with the Dis tri ct Court’ s deter minati on that Domian was not a m inor p articipan t even thou gh th e cou rt mad e no finding s with respe ct to his
aw aren ess o f the sco pe o f the con spira cy. Haut , 107 F.3d at 218 (under cl early

erroneous stand ard fin ding of fa ct ma y be reve rsed o nly if it is com pletely dev oid o f cred ible evident iary

basis) . Moreover, the Dist rict Court’s c omments indi cate an awarene ss of the other t wo Isaza- Zap ata fac tors, e ven tho ugh they w ere n ot sp ecif ically m entio ned . W e must necess arily conclude that , even i f we were to find t hat counsel ’s handl ing of the requ est for a min or pa rticipation adjus tmen t was subs tanda rd pro fessio nal co ndu ct,11

Do mia n su ffe red no p reju dice
. Stri ckland , 466 U.S. at 694. The remaining i ssues l ack anyarguable merit and do not require exte nded discuss ion. As t o the fi rst i ssue ide ntifi ed by couns el, the Dist rict Court infor

med Domian of his constitutional rights and advised him that he was waivi ng those r ights by pleadi ng guilt

y. The terms of t

he plea agr eement were dis cussed and t he government outlined the evi dence it would intr oduce at t

rial . The District

Court advis ed Domian abou t the m inimu m an d m axim um senten ce he could receiv e and told him that he wo uld serve a t erm of supervi sed rel ease. Domian was advi sed that his sentence would be determi ned by t

he Distr ict Court

and might be di fferent

from what eit

her his lawyer

or the government pre dicte d. Domian then admi tted t hat he committed the offense with whic h he w as c har ged . Th e ple a cle arly co mp orts w ith co nstitu tion al du e pr oce ss, see Parry v. Rosemeyer , 64 F.3d 1 10, 113-1 4 (3d C ir. 1995), and F ederal Ru le of Crim inal Proced ure 11. As to the third issue id entified by coun sel, the D istrict Co urt add ed tw o po ints to Domi an’ s c ri min al hi st orysc or e ba se d ona findi ng t hat he wa s onpr oba ti on a t t he time of the offens e. Domian plea ded guilt y i n stat e court to harassment and was placed on probati on, which ended on August 9, 2001. The District Court rece ived evi dence on the matte r and fou nd, as a ma tter of fact, that D om ian en gage d in d rug tra nsac tions b efore his prob ation e nded , specif ically in Jun e 200 1. Th e D istrict Co urt’s fin ding of fa ct is sup por ted b y the re cor d an d is n ot cle ar er ror. Haut , 107 F.3d at 218.12

As to the fourth issue, w e are w ithout jurisdiction to review a district court’s refusalto depart

downward, unless t

hat ref usal r esult ed from the cour t’s e rroneous be lief that i t lack ed a uth ority to dep art. See United Stat es v. St evens , 223 F.3d 239, 247 (3d Cir. 200 0). Se ction 4 A1 .3 of th e guid elines a utho rizes the cour t to dep art dow nw ard if it concludes t

hat a defendant ’s criminal hi story categor y si gnific antly

overst ates t

he seri ousness of t

he defendant’ s cri minal hi story . We have careful ly reviewed the trans cript of sentenc ing and conclude that the Dist rict Court knew that

it had t he authority

pursuant to § 4A 1.3 to adjust the crim inal history level if it overstated the seriousne ss of D omian’s crimina l his tory . The court heard argument

on the is sue, i nvited a dditi onal te sti mony, and pos ed q ues tion s of

cou nse l. As to the issues raised by Dom ian in his pro se brief, we conclude that the Dist rict Court properly

denied the post- guilt

y pl ea request

for new counsel wit

hout making t

he We ltyinq uiry, see Un ited Sta tes v. W elty , 674 F.2d 185 ( 3d Cir. 1982) , and that Domian’s Sixt

h Amendment right t o counsel was not violat ed. The We ltyinquir y was not required because the Dist rict Court was aware from Domian’s s ix-page l ette r why he
sou ght new cou nse l. Id. at 188. Moreover, the Distri ct Court di d not abuse i ts di scret ion in deny ing new counsel, because Domain did not show good cause, suc h as a confl ict of interest, a failure to prep are fo r the se ntenc ing h earing , or a co mp lete bre akdo wn in
com mu nica tion
. See United S tates v. Goldb erg , 67 F .3d 1 092 , 109 8 (3 d C ir. 19 95)
. Counsel continued to repr esent Domian aggr essive ly at the sentencing hearing,notwiths tanding t he short comings we have identifie d. We note in parti cular t hat Domian did not raise a si ngle objection to counsel’s conduct at the sentencing hearing or in his pro
se brief on a

ppeal. We further conclude that Domian did not adequat ely assert his ri ght of self-rep rese ntati on, Fare tta v. C aliforn ia , 422 U .S. 806 (197 5), w ith a sing le statem ent in a six -pa ge le tter th at he wis hed to sp eak for him self
. See United S tates v. Peppe rs , 302 F.3 d 12 0, 13 2 & n.10 (3d Cir .), cert. denied , 537 U.S. 1062 ( 2002). Again, we note that Domian did not re quest t o proceed pro se at the sentencing hearing e ven when he was per mitte d to add ress the c our t. Finally, we conclude that Domian was not prejudi ced by t he fil ing of the And ers brie f. Headley , 923 F.2d at 1083 (ineffe ctive assis tance of couns el cl aim may be dec ided on direct appeal onl y where r ecord is suffici ent). Although we have identifie d an issue we do not beli eve is frivolous , we have nonethel ess found i t lac king in merit. Ther e is no reasonable probabilit

y that , but for counsel’s And ers brief, th e resu lt of this a ppea l wo uld hav e be en d iffe ren t. Stri ckland , 466 U.S. at 694. We will grant

counsel' s motion t o withdraw and affi rm the judgment of the Dist

rict Co urt. D om ian’ s m otio n fo r ap poi ntm ent o f ne w c oun sel is den ied.