2003 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s

for the Thir d C ir c uit

4-17-2003



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. e du/thir dc ir c uit_2003/6471 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 02-2045

___________

UNITED STATES OF AMERICA

v.

TIFFANY BROSKOSKIE,

Appellant

___________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

District Court Judge: The Honorable James M. Munley

(D.C. Criminal No. 00-cr-00179-4)

___________

Submitted Under Third Circuit L.A.R. 34.1(a)

March 6, 2003

Before: ROTH, BARRY, and FUENTES, Circuit Judges

.

(Opinion Filed: April 16, 2003)

________________________

OPINION OF THE COURT

________________________2

FUENTES, Circuit Judge:

On April 19, 2 001, Tiffany Broskoskie entered a plea of guilty to one count of

conspiracy to distribute in excess of 500 grams of methamphetamine in violation of 21 U.S.C.

§ 846. On April 5, 2002, the District Court sentenced Broskoskie to a prison term of seventy

(70) months. Broskoskie’s counsel filed a brief pursuant to A nders v. California

, 386 U.S. 738

(1967), expressing his belief that Broskoski e cannot raise any non-frivolous issues for our

review, and directing us, as is required under Anders

, to the issues that he thought Broskoskie

might raise o n appeal. Broskoskie filed a p ro se brief directing us to four additional issues.

First, counsel notes that the District Court complied with the requirements set forth in

Federal Rule of

Criminal Procedure 11 during Broskoskie’s plea colloquy. The District Court

questioned Broskoskie regarding the charge against her in order to ensure that she understood

the charge to which she w as pleading guilty, and explained the maximum penalties involved

with that crime. (App. p. 58-60) Broskoskie stated that she understood that she had a right to

have a jury trial where she would be represented by counsel, be able to cross examine

government witnesses and exercise her right against self-incrimination, and require the

governm ent to meet its burden of proof. I d. at 44-48. The District Court made sure that

Broskoskie could read and wri te English, was not suffering from a mental condition, and was

not under the i

nfluence of drugs or alcohol, and that her guilty plea was being made voluntarily.

Id. at 42-44, 61. Finally, Broskoskie agreed that she was, in fact, guilty of the crime to which

she was pleading, and acknowledge d that the amount of methamphetamine involved in the

offense was in excess of 500 grams. Id. at 58-60, 64-66.3

Next, counsel notes that Broskoski e might raise one issue with respect to her sentence.

Federal Rule of Criminal Procedure 32(c)(3)(A) requires that, prior to sentencing, a district

court must “verify th

at the defendant and defendant’s counsel have read and discussed the

presentence report.

. . .” S ee also United States v. Mays , 798 F.2d 78, 80 (3d Cir. 1986)

(holding that district court must “

s omehow determine that the defendant has had [the]

opportunity” to review t

he presentence report). In this case, the District Court did not verify

during the sentencing proceeding that Broskoskie had reviewed the presentence report.

Because no objection was made regarding this failure, the plain error standard applies.

Fed. R. Crim. P. 52(b); United States v. Olano

, 507 U.S. 725, 736-37 (1993). We have held

that it is not necessary to remand when the district court failed to verify that the defendant

reviewed the presentence report unless the defenda nt can make a showing of prejudice. U nited

States v. Stevens

, 223 F.3d 239, 246 (3d Cir. 2000), c ert. denied

, 531 U.S. 1179 (2001).

Broskoskie has not argued, nor do we find by our own examination of the record, that she was

prejudiced by the District Court’s failure to inquire. Accordingly, we agree with counsel that

this issue is frivolous.

Finally, counsel asserts that in all other regards the Distri ct Court complied with

Federal Rule of Criminal Procedure 32 during Broskoskie’s sentencing proceeding. Pursuant

to the U nited States Sentencing Guidelines, Broskoskie was subject to a maximum sentence

of 120 to 135 months impriso nment. The District Court granted the government’s motion for

downward departure pursuant to U.S.S.G. § 5k1.1, however, and the resulting Guideline range

was reduced to 70 to 87 months. The District Court rejected Broskoskie’s motion for4

downward departure a fter recognizing its authority to further depart. The District Court then

sentenced Broskoskie to the bottom end of the Guideline range.

In her pro se brief, Brosko skie argues first that the District Court erroneously placed

her in Criminal History Category III, when, in fact, the pres entence report placed her in

Criminal His tory Category II. Because Broskoskie raises this issue for the first time on

appeal, we review the is sue for plain error. Fed. R. Crim. P. 52(b); O lano

, 507 U.S. at 736-37.

The government concedes that Bros koskie’s argument is correct. Paragraph 53 of the

presentence report properly found that Broskoskie had three criminal history points, which

necessarily places her in Criminal History Category II. In paragraph 71 of the report, however,

Broskoskie was erroneously placed in Criminal History Category III. This error was not

notice d or objected to during the sentencing proceeding. The District Court sentenced

Broskoskie to 70 months imprison ment, which is the bottom end of the Guideline range for

offense level 25, Criminal History Ca tegory III. If the proper Criminal History Category had

been applied, however, the Guideline range would have been 63 to 78 months. Given that the

District Court sentenced Broskos kie to the bottom end of an erroneously calculated Guideline

range, we will remand for resentencing because we cannot say wit h certainty that the District

Court would not have imposed a lower sentence based on t he properly calculated Guideline

range.

Broskoskie’s second argument is that the District Court miscalculate d her base offense

level. Specifically, she argues that the District Court incorrectly based her offense level on

the amount of methamphetamine attributable to her by virtue of the conspiracy rather than the

smaller amount of methamphetamine ac t ually distributed by her boyfriend with her assistance.5

This issue was n

o t raised in the District Court and is thus subject to plain error review. Fed.

R. Crim. P. 52(b); Olano

, 507 U.S. at 736-37. “[W]hether an individual defendant may be held

accountable for am

ounts of drugs involved in reasonably foreseeable transactions conducted

by co-conspirators depends upon the degree of the defendant’s involvement in the conspiracy.”

United S tates v. Collado , 975 F.2d 985, 995 (3d Cir. 1992). Broskoskie received plenty of

notice that she was being held accountable for more than 500 grams of methamphetamine as

part of her guilty plea to the conspiracy count. (App. pp. 54-59) In both her plea agreement

and again during the plea colloqu y, she admitted that she was accountable for more than 500

grams of methamphetamine based on her involvement in the conspiracy. I d. at 17, 37, 64.

Broskoskie’s argument, therefore, is meritless.

Broskoskie’s third argument is that her sentence violat es the rule announced in

Apprendi v. New Je rsey , 530 U.S. 466 (2000). As was explained in the preceding paragraph,

however, Broskoskie knowingly pleaded guilty to the charge of conspiring to distribute more

than 500 grams of methamphetamine. The amount of drugs involved in the offense determined

the base offense level. Therefore, Broskoskie’s argument is unavailing. In any event, A pprendi

does not apply here because Broskoskie’s sentence of 70 months did not exceed th e statutory

maximum of 240 months permit ted by 21 U.S.C. § 841(b)(1)(C). S ee United States v.

Johnson

, 302 F.3d 139, 155 n. 14 (3d Cir. 2002), c ert

. denied

, 123 S. Ct. 937 (Jan. 13, 2003).

Finally, Broskoskie argues that the District Court lacked jurisdiction in this case based

upon the holding in U

nited States v. Meacham

, 626 F.2d 503 (5th Cir. 1980). In M eacham

, the

court found that the dist rict court lacked jurisdiction because the charges of “conspiracy to6

attempt to import ma

rijuana” and “conspiracy to attempt to distribute marijuana and to possess

it with the intent to distribute” were not valid charges. Id

. at 508-509. The charges against

Broskoskie i

nvolved a “conspiracy to distribute” rather than a “conspiracy to attempt.” The

char ges against Broskoskie were valid. Therefore, Broskoskie’s final argument is

unpersuasive.

After carefully reviewing the briefs and accompanying materials of record, we will

affirm the conviction. Counsel conducted a conscientious review of the record and concluded

that there were no non-frivolous issues that could be raised on appeal, as required by A nders

,

386 U.S. at 744. Because counsel has complied with all of the procedures specified in A nders

,

we w i ll grant his motion for withdrawal. In light of the District Court’s erroneous placement

of Broskoskie in Criminal History Category III, however, we will remand this case for

rese ntencing. Accordingly, we will discharge current counsel and appoint substitute counsel

pursuant to Local Appellate Rule 109.2(a) to represent Broskoskie during the resentencing

proceeding.

_____________________________ TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.

/s/ Julio Fuentes

___________________________7 Circuit Judge