2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-28-2007

USA v. Shedrick

Precedential or Non-Precedential: Precedential

Docket No. 04-2329

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-2329

 

UNITED STATES

v.

JAMES SHEDRICK,

Appellant

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 02-cr-00523)

District Judge: Honorable Legrome D. Davis

 

Argued June 1, 2006

Before: AMBRO, FUENTES, and 

GREENBERG, Circuit Judges

(Opinion filed: February 28, 2007)
2

Peter A. Levin, Esquire (Argued)

1927 Hamilton Street

Philadelphia, PA 19130

Counsel for Appellant

Patrick L. Meehan

 United States Attorney

Robert A. Zauzmer

 Assistant United States Attorney

 Chief of Appeals

Thomas P. Hogan, Jr. (Argued)

 Assistant United States Attorney

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

James Shedrick appeals from the District Court’s denial

of his 28 U.S.C. § 2255 petition for habeas corpus alleging

ineffective assistance of counsel. The Government contests our

jurisdiction, however, because of an appellate and collateral
3

review waiver contained in a plea agreement signed by

Shedrick. We conclude we have jurisdiction over this appeal

relating to ineffectiveness of counsel claims. We affirm the

District Court’s denial of Shedrick’s claim that his trial counsel

was ineffective for failing to advise him about sentencing

matters. We conclude, however, that ineffectiveness of counsel

prevented Shedrick from timely appealing his sentence. While

typically we would remand this issue to the District Court or

require additional briefing, neither is necessary here. As such,

we address the claim attacking his sentence on direct appeal.

We conclude that claim cannot be sustained, and thus affirm

Shedrick’s sentence.

I. Factual and Procedural Background

In the early morning of July 11, 2002, Philadelphia

Police Officers Keya Mason, Raymond Rutter, and Joy GallenRuiz, along with Sergeant Beverly Pembrook, were on patrol in

Philadelphia’s 12th District. Officer Mason responded to a 911

emergency call reporting a man with a gun located at 64th

Street and Greenway Avenue. Upon arriving at that address,

Officer Mason heard gun shots but did not see anyone in the

area. 

Sergeant Pembrook also responded immediately to the

911 call and, like Officer Mason, did not find anyone at the

scene. After a short time, however, Pembrook observed a

man—later identified as Shedrick—standing in the middle of
4

the intersection holding a large silver revolver in his right hand.

Pembrook made a priority radio callfor back-up,stating that the

suspect was armed and not in custody.

By that time, Mason had joined Pembrook. Officers

Rutter and Gallen-Ruiz, who were riding together, also arrived

at the scene. Pembrook and Mason stood in front of a police

car and attempted to engage Shedrick while Rutter and GallenRuiz began to approach him from covered positions behind

parked cars. The officers repeatedly instructed Shedrick to drop

the gun, but he refused. He pointed the gun at the sky and

attempted to fire three shots. The gun failed to discharge.

The officers repeated their order for Shedrick to drop his

gun. He again aimed the gun upward and pulled the trigger

three more times. Yet again the gun failed to fire. Shedrick

then opened up the cylinder of the revolver, and empty shell

casings fell out of the weapon. When this occurred, the police

gang-tackled and disarmed him. Officer Rutter called in a

report indicating that Shedrick was in custody. 

Immediately after Shedrick was detained, the officers

were approached by two persons, Li Nguyen and Patricia

Edwards. Nguyen and Edwards stated that they had been in a

van on their way to work when Shedrick had appeared on the

street and started firing shots at their vehicle. One of the bullets

struck the front hood of the van. A second bullet penetrated the

windshield and traveled directly between Nguyen, who was
 Shedrick pled guilty in October 2000 in the Philadelphia 1

Court of Common Pleas to possession with intent to deliver a

controlled substance (cocaine) and unlawful possession of an

unlicensed firearm. 

5

driving, and Edwards, who was in the front passenger seat.

Nguyen and Edwardsreported that they went to a police station

one block away to report the shooting. When they returned to

the spot where the shooting had occurred, they witnessed the

police tackling Shedrick.

The police traced the gun in Shedrick’s possession, a

Smith & Wesson .357 caliber revolver, to an individual named

Aki Brickhouse. Brickhouse was charged with, and pled guilty

to, transferring the weapon to a convicted felon (Shedrick). He

also admitted that Shedrick had been selling crack cocaine on

a regular basis from a location in West Philadelphia and had

carried the Smith & Wesson while dealing drugs.

Shedrick was charged with being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). He signed a

written agreement with the Government, pleading guilty to that

charge and specifically admitting that (1) he possessed the

revolver, (2) he had a prior felony record, and (3) the revolver 1

had traveled in interstate commerce. Shedrick vigorously

contested, however, any involvement in the van shooting (as

described by Nguyen and Edwards) and any drug dealing while
6

armed with the revolver (as described by Brickhouse). 

The plea agreement expressly stated that Shedrick’s

maximum potential sentence was ten years’ imprisonment. It

went on to note that the Government was permitted to “make

whatever sentencing recommendation as to imprisonment . . .

[it] deems appropriate.” Indeed, both parties were “free to

argue the applicability of any other provision of the Sentencing

Guidelines, including offense conduct, offense characteristics,

criminal history, adjustments and departures.”

The agreement also included a provision waiving not

only most appeals but also collateral attacks. It stated:

10. In exchange for the undertakings made by the

government in entering this plea agreement, the

defendant voluntarily and expressly waives all

rights to appeal or collaterally attack the

defendant’s conviction, sentence, or any other

matter relating to this prosecution, whether such

a right to appeal or collateral attack arises under

18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C.

§ 2255, or any other provision of law.

a. Notwithstanding the waiver

provision above, if the government

appealsfrom the sentence, then the

defendant may file a direct appeal
7

of his sentence.

b. If the government does not appeal,

then notwithstanding the waiver

provision set forth in paragraph 10

above, the defendant may file a

direct appeal but may raise only

claims that:

i. the defendant’s sentence

exceeds the statutory

maximum; or

ii. the sentencing judge

erroneously departed

upward from the otherwise

applicable sentencing

guideline range.

The District Court conducted a plea hearing in

November 2002. During Shedrick’s guilty plea colloquy, the

Court confirmed and reinforced the terms of the written plea

agreement. At the outset of the hearing, the Court stated:

And a plea agreement has been reached and it is

recorded in writing and will be filed certainly at

the end of this proceeding. But, most

importantly, although the plea agreement states
8

all of the agreements and understandings that

exist between the defendant, defense counsel, and

the Government, it does not recommend a set

term of incarceration as binding upon this Court.

Ultimately, the appropriate sentence would be left

to the exercise of the Court’s discretion based

upon information presented by both sides and

based upon a review of the Sentencing

Guidelines.

Later, the Court reiterated that the sentence would be left to its

discretion and that there were no “agreements with anyone

about what the right sentence should be.” Id. at 63. Shedrick

confirmed this understanding. He also acknowledged that no

other agreements existed between himself and the Government

except those contained in the written plea agreement. The

Court then made clear to Shedrick that the maximum sentence

in his case was ten years’ incarceration. Shedrick did express

some confusion whether the facts alleged in the plea agreement

included an admission that he aimed or shot at police officers,

prompting the Court to clarify that he had only agreed to plead

to the basic facts of possessing the gun as a convicted felon and

that any other issues were left to the parties to argue at

sentencing.

After Shedrick entered his plea, the Probation Office

prepared a presentence report (“PSR”). It calculated Shedrick’s

base offense level at 20. It then recommended a four-level
9

enhancement under U.S. Sentencing Guidelines Manual §

2K2.1(b)(5) due to Shedrick’s prior felony conviction for a

controlled substance offense and a three-level downward

adjustment under U.S. Sentencing Guidelines Manual § 3E1.1

for acceptance of responsibility. Those adjustments resulted in

an offense level of 21 that, combined with a criminal history

category of III, yielded a Sentencing Guidelines range of 46 to

57 months.

Two weeks prior to sentencing, the Government filed a

memorandum with the District Court arguing that (1) Shedrick

was subject to a four-level enhancement for possessing a

firearm in connection with another felony offense (specifically,

drug dealing), and (2) the Court should depart upward eight

levels from the established Guidelines range because Shedrick

had discharged the weapon during the commission of his

offense (by shooting at a van occupied by two people).

Shedrick objected.

The District Court held a sentencing hearing during

which the potential enhancement for possession in connection

with another felony offense, as well as the upward departure for

shooting at the van, were contested. The Government called

two witnesses to provide a factual basis to support the

enhancement and departure: Brickhouse and Nguyen. 

Brickhouse testified that Shedrick had been selling

cocaine on a regular basis and that both Shedrick and his half-
 Because Shedrick was wearing a black shirt when arrested, 2

it is notable that Nguyen testified that the shooter had been

wearing a white shirt. When confronted by that inconsistency,

Nguyen admitted that he had focused on the gun and could have

made a mistake about the color of the shooter’s shirt.

10

brother, Tarik Robinson, had carried the Smith & Wesson

revolver while dealing drugs. 

Nguyen testified that he and Patricia Edwards were

driving to work in a red van at approximately 5:40 a.m. on the

date of Shedrick’s arrest, when a black man holding a silver

revolver started shooting at them. The Government provided

photographs to the District Court showing that bullets struck the

left front hood of the van and the mid-windshield, passing

between the two passengers. Nguyen recounted going to a

police station to report the shooting, returning to where it had

occurred, and witnessing the police tackling the man who had

shot at the van.2

After Brickhouse and Nguyen’s testimony, Shedrick

testified to his version of events. He admitted that he had the

gun in his possession, but denied ever firing it. He also stated

that he did not know Brickhouse and had never seen Nguyen

prior to the sentencing hearing.

The Government and defense counsel then engaged in

extended arguments about the enhancement and departure. The
 Application of both the four-level enhancement and eight- 3

level departure yielded a Guidelines range of 87 to 108 months.

11

defense contended that there was insufficient evidence to show

that Shedrick either had been dealing drugs or had fired the

shots that struck Nguyen’s van. Thus, it was the defense’s

position that Shedrick should receive a sentence within the

standard Guidelines range—46 to 57 months. 

The Government, on the other hand, maintained that

because the evidence demonstrated that Shedrick had carried

the gun while dealing drugs (as testified to by Brickhouse) and

that Shedrick shot at the van (as testified to by Nguyen), both

the four-level enhancement and eight-level upward departure

should apply. It recommended to the Court a sentence of 100

months’ incarceration.3

At the close of the hearing, the District Court found that

Brickhouse and Nguyen were credible witnesses, and thus

applied the four-level enhancement and eight-level upward

departure. Accordingly, the Court sentenced Shedrick to 96

months’ incarceration to be followed by three years of

supervised release. 

Shedrick was appointed counsel by the District Court for

purposes of an appeal. On August 18, 2003 (approximately six

months after sentencing), counsel filed a motion for

enlargement of time to submit a notice of appeal nunc pro tunc.
 We also appointed Shedrick new counsel to pursue this 4

appeal.

 Our decision in Khattak leaves the miscarriage-of-justice 5

determination open-ended, depending on various factors

identified in United States v. Teeter, 257 F.3d 14, 25–26 (1st

12

The District Court denied the motion on August 27, 2003, and

our Court dismissed the appeal as untimely on November 25,

2003. Shedrick (through counsel) proceeded to file a 28 U.S.C.

§ 2255 habeas corpus petition in the District Court, which was

denied. He petitioned pro se our Court for a certificate of

appealability, which was granted for two issues: “whether

counsel was ineffective for failing to advise [Shedrick] of a

possible upward departure at sentencing; and whether counsel

was ineffective for filing an untimely appeal.” Before we reach

4

these issues, however, we address the Government’s

jurisdictional contention.

III. Jurisdiction

According to the Government, the appeal and collateral

attack waiver contained in Shedrick’s written plea agreement

strips our jurisdiction. We disagree. In United States v.

Khattak, we joined the courts of appeals for ten other circuits

and held that “[w]aivers of appeal, if entered into knowingly and

voluntarily, are valid, unless they work a miscarriage of justice.”

273 F.3d 557, 563 (3d Cir. 2001). If a waiver is valid, “we 5
Cir. 2001), e.g., how clear and grave an error existed, the effect

of that error on the parties, and the extent to which the defendant

acquiesced in the error. Khattak, 273 F.3d at 563. We noted,

however, that the Seventh Circuit Court of Appeals specifically

held that ineffective assistance of counsel invalidates waiver-ofappeal provisions. Id. at 562 (citing United States v. Joiner, 183

F.3d 635, 645 (7th Cir. 1999)); see also Teeter, 257 F.3d at 25

n.9; United States v. Hernandez, 242 F.3d 110, 113–14 (2d Cir.

2001); United States v. Jemison, 237 F.3d 911, 916 n.8 (7th Cir.

2001).

13

have no jurisdiction to consider the merits of [an] appeal.” Id.

 However, “a federal court always has jurisdiction to determine

its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628

(2002); see Rosado v. Wyman, 397 U.S. 397, 403 n.2 (1970)

(same). Thus, we have jurisdiction to examine the waiver

provision of Shedrick’s plea agreement to determine its validity

and, even if valid, what its terms do and do not allow.

On initial review, it does appear that Shedrick expressly

waived his right to appeal and collaterally attack his sentence in

paragraph 10 of the plea agreement. However, the agreement

goes on to state that an appeal is preserved if any of three

conditions occurs. They are, to repeat, (1) a Government appeal,

(2) a sentence exceeding the statutory maximum, or (3) an

erroneous upward departure from the otherwise applicable

Sentencing Guidelines range. 
Shedrick’s brief mistakenly lumps together his enhancement 6

and his upward departure. An “enhancement” is an adjustment

to the base offense level as specifically provided by the

Guidelines, whereas an “upward departure” is a discretionary

adjustment to the Guidelines range once calculated. After

United States v. Booker, 543 U.S. 220 (2005), the difference is

now represented in the distinction between steps one and two as

set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006). While Shedrick has a right to appeal the District Court’s

upward departure under his plea waiver, the literal words of that

waiver make clear that he has no concomitant right to appeal an

upward enhancement.

14

It is undisputed that the first two predicates do not apply

here; the Government did not appeal, and Shedrick’s sentence

of 96 months’ imprisonment does not exceed the statutory

maximum of ten years. Shedrick maintains, however, that the

third condition applies, he is entitled to seek a collateral review,

and we have jurisdiction over appeals denying § 2255 petitions.

Specifically, he argues, inter alia, that he was denied the right

to appeal the District Court’s erroneous upward departure from

his otherwise applicable Guidelines range.6

The Government, on the other hand, claims that Shedrick

“is not arguing that the Court erroneously granted an upward

departure, but merely is arguing that counsel was ineffective for

(1) allegedly not informing him that the potential for an upward

departure existed.” Gov’t Br. at 28. We disagree here as well.

At its essence, Shedrick’s argument is that, as a result of trial
15

counsel’s deficient performance, he failed to appeal timely the

District Court’s upward departure, which he was entitled to

appeal under the express terms of the plea agreement waiver.

Enforcing a collateral attack waiver where constitutionally

deficient lawyering prevented him from a direct appeal

permitted by the waiver would result in a miscarriage of justice.

Thus, we have jurisdiction to consider any ineffectiveassistance-of-counsel issue.

IV. Merits

A. Ineffectiveness of Counsel for Failure to Advise

Shedrick first argues that he received ineffective

assistance of counsel during his plea process as a result of

counsel’s failure to advise him about, inter alia, a potential

upward departure at sentencing. According to Shedrick, a

“fundamental consideration for [him] in determining whether

. . . to accept the guilty plea was the length of sentence he could

expect to receive.” 

Under the two-part test of Strickland v. Washington, 466

U.S. 668, 687 (1984), Shedrick must demonstrate that his

attorney’s performance was deficient and that he was prejudiced

by the deficiency. That is, he must prove that counsel’s

performance “fell below an objective standard of

reasonableness,” id. at 688, and that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the
16

result of the proceeding would have been different.” Id. at 694.

Shedrick cannot satisfy these requirements. Indeed, we

have long held that an erroneous sentencing prediction by

counsel is not ineffective assistance of counsel where, as here,

an adequate plea hearing was conducted. See, e.g., United

States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (counsel not

ineffective for allegedly promising defendant a sentence of “no

more than 71 months” where defendant was advised in opencourt colloquy of potential maximum sentence and there were

no other promises regarding sentence); United States v. Mustafa,

238 F.3d 485, 492 (3d Cir. 2001) (“[A]ny alleged

misrepresentations that [defendant’s] former counsel may have

made regarding sentencing calculations were dispelled when

[defendant] was informed in open court that there was no

guarantee as to sentence, and that the court could sentence him

to the maximum.”); Masciola v. United States, 469 F.2d 1057,

1059 (3d Cir. 1972) (per curiam) (holding that “[a]n erroneous

prediction of a sentence by defendant’s counsel does not render

a guilty plea involuntary” where record demonstrates that a

proper plea colloquy took place during which defendant

acknowledged that he was aware of his maximum potential

sentence). As stated in Mustafa,

[w]e recognize that the maximum sentence

authorized by law is often so extraordinarily long

that few defendants other than “career criminals”

plead guilty with the expectation that the
17

maximum sentence applies to them. However, all

that the law requires is that the defendant be

informed of his/her exposure in pleading guilty.

The law does not require that a defendant be

given a reasonably accurate “best guess” as to

what his/her actual sentence will be; nor could it,

given the vagaries and variables of each

defendant’s circumstances and offending

behavior. 

238 F.3d at 492 n.5.

This case falls squarely within well-established

precedent: defense counsel’s conjectures to his client about

sentencing are irrelevant where the written plea agreement and

in-court guilty plea colloquy clearly establish the defendant’s

maximum potential exposure and the sentencing court’s

discretion. Shedrick’s written, signed agreement stated that (1)

he faced a maximum potential sentence of ten years’

incarceration; (2) the parties were free to argue any other

sentencing issues (explicitly including departures); (3) the

District Court retained ultimate discretion over the sentence; and

(4) there were no other agreements or promises regarding

Shedrick’s potential sentence.

The District Court repeated these facts in open court,

starting the guilty plea colloquy by confirming with Shedrick

that 
18

most importantly, although the plea agreement

states all of the agreements and understandings

that exist [among] the defendant, defense counsel,

and the Government, it does not recommend a set

term of incarceration as binding upon this Court.

Ultimately, the appropriate sentence would be left

to the exercise of the Court’s discretion based

upon information presented by both sides and

based upon a review of the Sentencing

Guidelines. 

It then confirmed that Shedrick (1) had read, signed and fully

understood the plea agreement, (2) understood that there were

no other promises regarding his potential sentence, and (3) had

admitted the facts of the crime. The Court further advised

Shedrick that the maximum potential sentence was ten years’

incarceration and that it retained full discretion over the ultimate

sentence.

Here, any erroneous sentencing information provided by

defense counsel was corrected by the written plea agreement and

the detailed in-court plea colloquy, both of which accurately

stated Shedrick’s potential sentence. Given this record, it is

inconceivable that Shedrick did not know he potentially faced

a maximum ten-year prison term. In fact, his allegations before

our panel are flatly inconsistent with his written, signed plea

agreement as well as his sworn, in-court answers during his plea

colloquy. Accordingly, the District Court correctly denied
 With regard to his failure-to-advise argument, Shedrick 7

relies heavily on one case—Meyers v. Gillis, 142 F.3d 664 (3d

Cir. 1998)—to advance his claim that bad sentencing

information provided by a defense lawyer equals ineffective

assistance of counsel. Meyers involved a habeas proceeding

from a state court guilty plea. The defendant had pled guilty to

second degree murder, which carried a mandatory life sentence

with no chance of parole. Nonetheless, the defendant was

misinformed by counsel that he would be eligible for parole in

seven years. At his guilty plea, the defendant was repeatedly

informed that he would become eligible for parole. Incredibly,

that advice was never corrected by the prosecutor or the state

trial court. We held that Meyer’s counsel was ineffective and

reversed his life sentence. 

Meyers is readily distinguishable from the case before us.

The former involved review of a state court proceeding lacking

a detailed guilty plea agreement and a Rule 11 guilty plea

colloquy. More importantly, the trial court in Meyers failed to

correct the erroneous sentencing information provided on the

record by defense counsel. In sharp contrast, the District Court

here corrected any alleged misperception by Shedrick about his

potential sentence by accurately informing him that his

maximum prison sentence was ten years and that the Court had

the discretion to sentence him up to that maximum. See

Scarbrough v. Johnson, 300 F.3d 302, 303–04, 306 (3d Cir.

2002) (distinguishing Meyers and finding no error where

19

Shedrick’s § 2255 motion as to his claim that counsel was

ineffective for failing to advise him of the potential for an

enhancement or upward departure. 

7
defense counsel misinformed defendant that he was eligible for

parole but state court repeatedly and correctly informed

defendant that his penalty was an “automatic life sentence” with

no chance of parole).

20

B. Ineffectiveness of Counsel for Failure to Appeal

Shedrick’s second contention is that his then-counsel was

ineffective for failing to file a timely appeal in this case. In

resolving this claim, we are guided by the Supreme Court’s

decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000). There,

the Court addressed whether counsel may be found deficient for

failing to file a notice of appeal absent specific instruction from

the defendant not to do so. Because the question concerned

whether counsel’s representation was constitutionally defective,

the Court held that the two-part Strickland test governed its

inquiry. Id. at 476–77. Applying that standard to the particular

facts before it, the Court held that “counsel has a constitutionally

imposed duty to consult with the defendant about an appeal

when there is reason to think either (1) that a rational defendant

would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular

defendant reasonably demonstrated to counsel that he was

interested in appealing.” Id. at 480. The Court further

explained that it “employ[ed] the term ‘consult’ to convey a

specific meaning—advising the defendant about the advantages

and disadvantages of taking an appeal, and making a reasonable

effort to discover the defendant’s wishes.” Id. at 478.
21

Additionally, the Court instructed that courts undertaking this

inquiry, as with all ineffective assistance claims, “take into

account all the information counsel knew or should have

known.” Id. at 480 (citing Strickland, 466 U.S. at 690). 

With respect to Strickland’s prejudice prong, the Court

held that the harmless error inquiry applied and that relief could

not be granted unless the defendant “demonstrate[s] that there

is a reasonable probability that, but for counsel’s deficient

failure to consult with him about an appeal, he would have

timely appealed.” Id. at 484. The Court did not identify any

determinative factors in this regard, but did stress that “evidence

that there were non-frivolous grounds for appeal or that the

defendant at issue promptly expressed a desire to appeal will

often be highly relevant.” Id. at 485.

A review of the record reveals that Shedrick “reasonably

demonstrated to counsel that he was interested in appealing” by

vehemently contesting the factual issues that led to his

enhancement and upward departure throughout the District

Court proceedings. See Gov’t Br. at 18 (acknowledging that

Shedrick “hotly contested” the factual issues leading to his

enhancement and upward departure both prior to and during his

sentencing proceedings); see also Appellant’s App. at 78–79

(demonstrating that Shedrick, during his plea colloquy and prior

to pleading guilty, specifically ensured that he was not

conceding any involvement in the van shooting incident or any

attempt to fire the weapon at police). In this context, Shedrick’s
22

counsel had “a constitutionally-imposed duty to consult with”

him concerning a possible appeal. Flores-Ortega, 528 U.S. at

480; see id. at 481 (“We expect that courts evaluating the

reasonableness of counsel’s performance using the inquiry we

have described will find, in the vast majority of cases, that

counsel had a duty to consult with the defendant about an

appeal.”).

The Government argues that Shedrick “makes no

allegation that he ever directed counsel to [file an appeal].”

Gov’t Br. at 58. Indeed, Shedrick’s habeas counsel wrote in his

brief to our Court that “[t]he record does not indicate that [trial]

counsel had any discussion with [Shedrick] regarding an appeal.

It is also unclear whether [Shedrick] specifically asked [his trial

counsel] to file an appeal.” Appellant’s Br. at 17. We are

uncertain why such comments were made in light of Shedrick’s

explicitstatement in a letter to the District Court, dated February

26, 2003 (before the appeal deadline had passed), that he had

asked his trial counsel to file an appeal on his behalf. In this

context, Shedrick’s trial counsel knew at least one of three

things—Shedrick asked that an appeal be filed, he likely would

want to appeal, or he was interested in appealing—and yet did

not file an appeal.

There is no indication in the record that Shedrick’s

attorney consulted with him post-sentencing. Indeed, Shedrick

expressly stated in letters submitted to the District Court both

during and after that period that his trial counsel failed to
 For those concerned that Shedrick gets to appeal because of 8

a technicality that will prove fruitless (see subsection “C”

below), we note that whether Shedrick has a substantial

likelihood of success on appeal is of no moment here; to satisfy

the prejudice prong of Strickland in this context, Shedrick must

merely establish that his appeal would have been non-frivolous.

Anders v. California, 386 U.S. 738, 744 (1967) (explaining that

an appeal on a matter of law is frivolous only where “[none] of

the legal points [is] arguable on their merits”); Deutsch v. United

23

consult with him during the appeal period. Even if counsel did

so, there is little question he was deficient for failing to file an

appeal because Shedrick stated on the record that he wished to

appeal while that option was available. If counsel did not

consult with Shedrick during the appeal period, then he was

deficient under Roe-Ortega for not doing so. Under these

circumstances, it is not necessary for us to remand this case to

the District Court for a factual finding that counsel either did or

did not consult with Shedrick because counsel was deficient

either way.

As it was ineffective assistance of counsel that prevented

Shedrick from timely appealing the upward departure—a

challenge permitted by his plea waiver—we hold that he is

entitled to a direct appeal challenging that departure. Because

it has been thoroughly briefed by counsel, we deem it

unnecessary to call for further briefing, and thus we turn our

attention to the merits of the sentencing.8
States, 67 F.3d 1080, 1085–86 (3d Cir. 1995) (defining

frivolousness in a 28 U.S.C. § 1915(d) case as “of little or no

weight, value, or importance; paltry; trumpery; not worthy of

serious attention; having no reasonable ground or purpose”); see

also Robert G. Bone, Modeling Frivolous Suits, 145 U. Pa. L.

Rev. 519, 530, 533 (1997) (rejecting “low-probability” as a

definition of frivolous litigation); Charles M. Yablon, The Good,

the Bad, and the Frivolous Case: An Essay on Probability and

Rule 11, 44 UCLA L. Rev. 65, 67 (1996) (arguing that nonfrivolous cases are “long shots that didn’t pan out, rather than

baseless claims that should never have been brought”). Though

we accept Shedrick’s appeal and rule against him on the merits,

his arguments (as noted below) meet this minimal standard.

Moreover, as the Court explained in Flores-Ortega, 528 U.S. at

486, “it [would be] unfair to require an indigent, perhaps pro se,

defendant to demonstrate that his hypothetical appeal might

have had merit before any advocate has ever reviewed the record

in his case in search of potentially meritorious grounds for

appeal.”

24

C. Upward Departure

As explained above, Shedrick received an eight-level

upward departure under U.S. Sentencing Guidelines Manual §

5K2.6 (stating that “[i]f a weapon or dangerous instrumentality

was used or possessed in the commission of the offense[,] the

court may increase the sentence above the authorized guideline

range”) for firing a gun at an occupied van. Relying on United

States v. Booker, 543 U.S. 220 (2005), he argues that he is

entitled to re-sentencing because the “District Court exceeded its
 It does not appear that Shedrick makes the independent 9

argument (rooted solely in the Fifth Amendment) that, if not the

jury, then the Judge should have found the enhancement beyond

a reasonable doubt. Our analysis of such a claim, however,

would mirror what already is set out here. See United States v.

Grier, No. 05-1698, ___ F.3d ___, 2007 WL 315102, at *1 (3d

Cir. Feb. 5, 2007).

25

authority, as limited by the Sixth Amendment, by enhancing

[his] offense level without the requisite jury determination” and

without applying a reasonable-doubt standard. Appellant’s Br.

at 18.9

The question whether a jury needed to find the facts that

formed the basis for Shedrick’s eight-level departure beyond a

reasonable doubt is a question of law we review de novo.

United States v. Williams, 235 F.3d 858, 861 (3d Cir. 2000).

The District Court’s factual findings are reviewed for clear

error. United States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999).

In Booker, the Supreme Court held that facts relevant to

the now-advisory Guidelines do not implicate the constitutional

right to trial by jury so long as the sentence does not exceed the

statutory maximum set by the United States Code (in our case,

ten years). 543 U.S. at 259. Thus, the finding of fact at issue

here need not have been submitted to a jury. Moreover, our

Court has expressly stated that “[a]s before Booker, the standard

of proof under the guidelines for sentencing facts continues to
26

be preponderance of the evidence.” United States v. Cooper,

437 F.3d 324, 330 (3d Cir. 2006). As such, the District Court’s

application of the preponderance-of-the-evidence standard

comports with the Sixth Amendment under current case law.

Id.; see also Grier, 2007 WL 315102, at *1–8 (explaining how

Booker’s remedial opinion facilitates this conclusion).

The evidence presented at the sentencing hearing

supports the conclusion that Shedrick fired at the van occupied

by Nguyen and Edwards. Although Nguyen misidentified the

color of Shedrick’s shirt, he testified confidently that Shedrick

was the individual who had shot in his direction. Given

Shedrick’s proximity to Nguyen at the time of the alleged

shooting, his concession that he was in possession of a gun

when the shooting occurred, and the District Court’s ruling that

Nguyen’s testimony was credible, we cannot conclude that the

Court’s finding that Shedrick had shot at the van was clearly

erroneous. Thus, we affirm Shedrick’s sentence. 

V. Conclusion

For the reasons explained above, we have jurisdiction

over this appeal relating to ineffectiveness-of-counsel claims.

We proceed to affirm the District Court’s denial of Shedrick’s

§ 2255 petition concerning the claim that his counsel was

ineffective for failing to advise him as to sentencing matters.

However, Shedrick has demonstrated that his trial counsel was

ineffective under Roe-Ortega for failing to afford Shedrick his
27

appeal rights. We thus reverse the Court’s denial of Shedrick’s

§ 2255 petition on this claim. Because the issue is fully briefed,

we consider the merits of Shedrick’s claim of error relating to

the upward departure of his sentence. That claim we reject, and

thus we affirm his sentence.