2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-3-2002

USA v. Mayhan

Precedential or Non-Precedential:

Docket No. 01-2128

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Recommended Citation

"USA v. Mayhan" (2002). 2002 Decisions. Paper 242.

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 NOT PRECEDENTI

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 01-2128 

 

 UNITED STATES OF AMERICA 

 v. 

 DEBORAH MAYHAN, 

 Appellant 

 

 

 On Appeal from the United States District Court 

 for the District of Delaware 

 (D.C. Crim.No. 99-cr-00012) 

 District Judge: Hon. Roderick R. McKelvie 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 April 1, 2002 

 Before: SLOVITER, FUENTES and MICHEL,* Circuit Judges 

 

 (Filed: April 2, 2002) 

 

 OPINION OF THE COURT 

______________________ 

 * Hon. Paul R. Michel, United States Court of Appeals for the Federal Circuit, 

 sitting by designation. SLOVITER, Circuit Judge. 

 This is an appeal by Deborah Mayhan from the order of the District Court denying 

her amended motion under 28 U.S.C. 2255 to vacate her sentence. Mayhan, who was 

indicted on three counts, pled guilty to distribution and aiding and abetting in the 

distribution of heroin in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C) and 18 U.S.C. 

2. Pursuant to the plea agreement, the District Court dismissed the other two counts, and 

Mayhan was sentenced to thirty-seven months imprisonment, three years of supervised 

release, and $100.00 special assessment. 

 No direct appeal was taken but within a year after the sentence, Mayhan filed a 

pro se motion under 28 U.S.C. 2255 to vacate her sentence, which she thereafter 

amended. The District Court appointed counsel for Mayhan and reinstated her right to 

appeal. 

 At the outset, we note that although counsel has purported to file a brief pursuant 

to Anders v. California, 386 U.S. 738 (1967), in fact we find counsel’s brief inadequate. 

Under Anders, counsel has the obligation to make a conscientious examination and 

independent review of the record and present any issues that are not frivolous. In the 

sparse appellate brief, with but two short pages setting forth the facts, counsel has 

presented no argument at all, stating only that "Appellant respectfully requests that this 

Honorable Court independently review the trial record below and enter an order which 

would serve the best interests of justice." Appellant’s Br. at 8. Anders requires that 

counsel perform that function, not that counsel shift that function to the court. Anders, 
386 U.S. at 745. Under other circumstances, we would dismiss counsel and reappoint 

new counsel. However, the government, apparently recognizing the inadequacy of the 

appellant’s brief, has undertaken to perform the appropriate function and has done so 

conscientiously, reviewing each possible ground that Mayhan might assert and showing 

as to each why it would not be successful. Under the circumstances, we express our 

appreciation to the U.S. Attorney’s Office for this assistance. 

 The facts which form the basis of the indictment are familiar, as we have seen 

them numerous times. Mayhan participated in the distribution of a controlled substance, 

in this case heroin, to a confidential witness cooperating with the Drug Enforcement 

Agency, and she received from the witness $1,800.00 in return for 9.7 grams of heroin. 

Mayhan, who was the girlfriend of the charged co-conspirator, Robert Sanders, advised 

the agents that she would deliver the heroin to them if Sanders were unavailable. 

 In its brief, the government notes that Mayhan did not raise any objections or 

claims at her sentencing in the District Court. It noted that Mayhan might argue that the 

government had breached the plea agreement when the court sentenced her not only 

using the 9.7 grams of heroin to which she pled guilty but also the 15.6 grams of heroin 

from the count that was dismissed pursuant to the plea agreement. However, the plea 

agreement contained a stipulation that included not only the delivery of the 9.7 grams of 

heroin, but also Mayhan’s role in facilitating co-conspirator Sanders’ distribution of 15.6 

grams of heroin later that month. The plea agreement did not limit the use of U.S.S.G. 

1B1.3 relevant conduct at Mayhan’s sentencing and thus there was no breach of the plea 

agreement. Nor could Mayhan claim that her facilitation of the delivery of the 15.6 

grams of heroin is not relevant conduct properly used to determine her sentence. The 

government’s brief shows that the temporal proximity, the repetition, and the similarity 

of the offenses all support the court’s attribution of the 15.6 grams of heroin from the 

dismissed count as relevant conduct. 

 The government’s brief also notes Mayhan’s contention that the convictions of 

another person were used to calculate her criminal history score in her pre-sentence 

report. She has not alleged which convictions she contests, she did not object at the 

sentencing to the pre-sentence report or to the guideline calculations leading to an 

imprisonment range of thirty to thirty-seven months, and thus she has not shown any 

error from the court’s reliance on the pre-sentence report’s findings. 

 Mayhan alleged in her amended 2255 motion that her sentence was improperly 

enhanced for being a "major role" player. She is in error as she did not receive a major 

role adjustment to her guideline range. She could not persuasively argue that she should 

have received a minor role adjustment because it would be inconsistent with the fact that 

both she and Sanders took phone orders for delivery of heroin, and they each delivered 

heroin to the cooperating witness. Nor could Mayhan succeed on any claim that her 

sentence violated the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 

(2000). Mayhan’s sentence of thirty-seven months imprisonment is considerably below 

the 240-month statutory maximum. See United States v. Williams, 235 F.3d 858, 863 

(3d Cir. 2000). We note that her co-conspirator, Sanders, was sentenced to 108 months 

imprisonment. 

 For the reasons set forth, we will affirm the District Court’s order denying 

Mayhan’s motion pursuant to 28 U.S.C. 2255. 

____________________ 
TO THE CLERK: 

 Please file the foregoing opinion. 

 s/s Dolores K. Sloviter 

 Circuit Judge