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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 08-4309

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UNITED STATES OF AMERICA

v.

VERNON DOUGLAS,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2:05-cr-00038-001)

District Judge: Honorable R. Barclay Surrick

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 24, 2012

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Before: AMBRO, CHAGARES, and HARDIMAN, Circuit Judges.

(Filed: April 26, 2012)

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OPINION

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CHAGARES, Circuit Judge.

Vernon Douglas appeals his conviction as well as the District Court’s denial of his 

post-conviction motion for judgment of acquittal under Federal Rule of Criminal 

Procedure 29(a) or for a new trial under Federal Rule of Criminal Procedure 33(a), based 
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on the sufficiency of evidence presented at trial. For the following reasons, we will 

dismiss this appeal for lack of jurisdiction. 

I.

We write for the parties’ benefit and recite only the facts essential to our 

disposition. On June 22, 2004, Police Officer Nathan London and a confidential 

informant went to Douglas’s home and conducted an undercover drug purchase. The 

confidential informant knocked on Douglas’s door, and when Douglas answered, the 

confidential informant asked for “four,” and gave Douglas a prerecorded $20 bill. 

Douglas went into the house and returned with small objects. After the purchase, the 

confidential informant gave Officer London the four pink-tinted packets, which later 

testing revealed to be crack cocaine. 

The next day, officers executed a search warrant on Douglas’s home. At the time 

of the search, Douglas was the only person in the house. Officers arrested Douglas and 

searched him, finding $306 cash, including the prerecorded $20 bill used as buy money 

the previous day. The officers searched the house. They found a triple beam scale, 

commonly used to weigh drugs, in the dining room. Inside a piano bench, they found a 

bag with a large amount of cocaine. In the living room, the officers found two pinktinted packets containing crack cocaine in a magnetic Hide-A-Key attached to a tool box 

near the front door of the house. Officers found three guns, one inside the toolbox, 

another inside a vase in the living room, and a third in the bedroom. Officers also found 

Douglas’s social security card and driver’s license in the house. Douglas’s daughter 

testified at trial that her father was the only person who lived in the house but that eight 
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cousins and family friends had keys and access to the house. However, on crossexamination, she admitted she had not been to her father’s house for six months prior to 

his arrest. Further, she was unable to provide last names of the family friends that she 

claimed had access to the house and did not have contact information for the family 

members who allegedly had access. 

Douglas was convicted by the jury of distribution of cocaine base in violation of 

21 U.S.C. § 841(a)(1), possession of cocaine base in violation of 21 U.S.C. § 844(a), 

possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), 

(b)(1)(C), and possession of a firearm in furtherance of a drug trafficking crime in 

violation of 18 U.S.C. § 924(c)(1). After the jury trial, the District Court found Douglas

guilty of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 

924(g)(1) in a stipulated nonjury trial. 

The District Court sentenced Douglas to life imprisonment for the possession of a 

firearm in furtherance of a drug trafficking crime and to concurrent sentences for the 

other four counts, ranging from 12 to 240 months. Douglas appealed, raising only issues 

related to his sentence, and this Court remanded for the District Court to clarify the basis 

of the life sentence, because it had not specified whether the non-guideline sentence was 

based on a variance or a departure. United States v. Douglas, 244 F. App’x 411, 413 (3d 

Cir. 2007). On remand the District Court resentenced Douglas to a term of imprisonment 

of 220 months, three years supervised release, and a special assessment of $500. Douglas 

now appeals, challenging the sufficiency of the evidence supporting his conviction. 

II.
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The Government contends Douglas waived his appeal of his conviction when he 

did not raise it in his earlier appeal of his sentence. The question of whether an appellant 

has waived an issue presented on appeal is a question of law, over which this Court 

exercises plenary review. United States v. Miller, 594 F.3d 172, 178 n.3 (3d Cir. 2010).

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In United States v. Pultrone, 241 F.3d 306 (3d Cir. 2001), defendant Pultrone 

voluntarily withdrew his initial notice of appeal. The Government filed a cross-appeal, 

contending that the District Court had erred when it failed to sentence Pultrone to the 

statutory mandatory minimum. Id. at 307. This Court agreed with the Government and 

vacated the District Court’s judgment and remanded for resentencing. Id. After 

resentencing, Pultrone appealed, challenging the sufficiency of the evidence against him 

and the District Court’s application of the preponderance of the evidence standard to its 

determination of the amount of cocaine for which he was responsible. Id. at 306-07. He

also raised an ineffective assistance of counsel claim. Id. This Court held that “[e]ach of 

these allegations of error could and should have been raised in that direct appeal; because 

Pultrone voluntarily withdrew the appeal, he failed to preserve these issues.” Id. at 307. 

This Court dismissed Pultrone’s appeal for lack of jurisdiction. Id.

Pultrone is controlling in this matter. Because Douglas failed to raise the 

sufficiency of the jury verdict in his initial appeal, he has waived his right to appeal that 

issue. On this basis, we will dismiss this appeal for lack of jurisdiction.

III.

 

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. 
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Douglas filed a pro se motion for appointment of new counsel on June 20, 2011

because his appointed counsel did not provide Douglas with a copy of the brief she filed 

on his behalf. The motion was denied, but Douglas appealed the decision, which was 

construed as a motion to reconsider and is currently before this merits panel. 

Douglas contends that his appointed counsel refused to raise his ineffective 

assistance of counsel claim. This Court does not generally entertain ineffective 

assistance of counsel claims on direct appeal, except in the narrow circumstances where 

the record is sufficient to permit determination of the issue. United States v. Thornton, 

327 F.3d 268, 271 (3d Cir. 2003). The record in Douglas’s case has not been developed, 

so we would not consider his ineffective assistance of counsel claims on direct review. 

Further, Douglas does not have a right to counsel of his choosing. Wheat v. United 

States, 486 U.S. 153, 159 (1988). Douglas’s motion for reconsideration of his motion for 

new counsel will be denied.

IV.

For the foregoing reasons, we will dismiss the appeal for lack of jurisdiction and 

will deny Douglas’s motion to reconsider denial of his motion for appointment of new 

counsel.