2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-18-2002

USA v. Andrews

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3514

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Recommended Citation

"USA v. Andrews" (2002). 2002 Decisions. Paper 411.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 

 Nos: 01-3514/3518 

 _______________ 

 

 UNITED STATES OF AMERICA 

 v. 

 TERRENCE E. ANDREWS, 

 Appellant in 01-3514 

 

 & 

 ERIC L. MYRIECKES, 

 Appellant in 01-3518 

 

 

 Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Criminal Action No. 00-cr-00014J-1 & 3) 

 District Judge: Honorable D. Brooks Smith 

 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 on May 2, 2002 

 

 Before: ROTH and STAPLETON Circuit Judges 

 POLLAK*, District Judge 

 

 (Opinion filed July 16, 2002) 

 

 * Honorable Louis H. Pollak, District Court Judge for the Eastern District of 

Pennsylvania, sitting by designation 

 

 

 O P I N I O N 

 

ROTH, Circuit Judge: 

 Defendant-Appellants Terrence Andrews and Eric Myrieckes pled guilty to 

possessing crack cocaine with intent to sell and to conspiracy to sell crack cocaine. They 

appeal a variety of rulings by the District Court. Myrieckes challenges the denial of a 

motion to suppress. Andrews challenges both his guilty plea and his sentence. We will 

affirm the District Court on each assignment of error. 

I. Factual and Procedural History 

 Acting on the basis of a tip from a confidential informant, the police stopped and 

searched the car Andrews and Myrieckes were riding in. In the car the police found more 

than 30 grams of crack cocaine and arrested Andrews, Myrieckes and the driver. After 

their arrest, both Defendants were indicted for possessing crack cocaine with the intent to 

sell and for conspiracy to sell crack cocaine. They both filed a motion to suppress 

evidence of the crack cocaine seized incident to their arrest. The motions were denied. 

Both men then pled guilty to all charges. Myrieckes pled guilty on the condition that he 
could appeal the denial of his suppression motion. Andrews gave an unconditional guilty 

plea. Soon afterwards, Andrews filed a motion to withdraw his guilty plea alleging 

ineffective assistance of counsel. After that motion was denied, he replaced his counsel 

and filed another motion to withdraw his guilty plea. That motion was also denied. The 

District Court then sentenced defendants and they appealed. 

II. Discussion 

A. Defendant Myrieckes 

 Myrieckes contends that the District Court erred by denying his motion to suppress 

evidence of the drugs found in the car. Police may, however, stop and search a car when 

they have a reasonable suspicion of criminal activity, United States v. Hensley, 469 U.S. 

221, 226 (1985). Here, there was more than enough evidence to meet that standard. The 

police received a tip from an informant who was willing to meet with the police and to 

sign a statement that he understood giving false information to the police was a crime. A 

tipster willing to identify himself to police is more reliable than an anonymous tipster. 

See United States v. Valentine, 232 F.3d 350, 354 (3rd Cir. 2000). To create reasonable 

suspicion, a tipster must predict some, but not necessarily all, of the suspects’ actions. 

See Alabama v. White, 496 U.S. 325 (1990). This tipster was quite accurate. He 

correctly predicted that Myrieckes, Andrews, and a woman would leave town with a 

woman driving. He correctly identified the time they would leave and even gave the 

licence number of the car. He also claimed the defendants were going to Cleveland. The 

police saw the defendants return to town on one of the main routes from Cleveland after 

being gone for a period of time consistent with a trip to Cleveland. In addition the police 

had arrested both defendants several times on suspicion of drug activity. That is 

sufficient information to create a reasonable suspicion of criminal activity. 

 We will affirm the denial of the motion to suppress. 

 B. Defendant Andrews 

 Andrews raises three issues on appeal, two challenging his sentence, one 

challenging his guilty plea. His first claim is that the District Court committed clear error 

when it found that he was not a minor participant in the drug conspiracy and thus refused 

to grant him a two level downward departure pursuant to 3B1.2(b) of the sentencing 

guidelines. U.S.S.G. 3B1.2(b). He contends that the evidence shows that he was less 

culpable than Myrieckes. We cannot agree. Although Andrews did not own or drive the 

car, did not bring the scale ostensibly used for weighing the drugs, was not identified by 

the informant as a drug dealer, and may have depended on Myrieckes’s connections in 

Cleveland to acquire the drugs, there is substantial evidence of his culpability. Andrews, 

with Myrieckes, asked the driver of the car for a ride to Cleveland, rode to Cleveland to 

get the drugs, discussed future profits from the sale of the drugs, and had drugs on or near 

his person when arrested. This evidence indicates Andrews was Myrieckes’ partner. We 

therefore cannot say the District Court committed clear error when it found that Andrews 

was as culpable as Myrieckes. 

 Andrews’ next issue on appeal also challenges his sentence. He claims that the 

District Court committed clear error when it found that there were 37.8 grams of cocaine 

in the car. See United States v. Miele, 989 F.2d 659, 663 (3rd Cir. 1993) (stating that 

findings of fact are reversed only if clearly erroneous). He contends the District Court 

should have credited defense experts, who testified that the drugs weighed slightly under 

35 grams. The District Court, however, found the government’s witnesses more credible 

than the defense’s experts. The witnesses presented by the government actually weighed 

the drugs themselves and testified live before the District Court. Andrews’ expert did not 

even weigh the drugs himself, allowing an employee to do it while he was away, and the 

expert testified over the telephone. Under these circumstances, we cannot say that the 

District Court’s decision to find the government’s witnesses more credible is clear error. 

 Andrews’s final issue on appeal is a challenge to his guilty plea. He asks us to 

amend his plea agreement to make it conditional on an appeal of his motion to suppress 

the drugs found in the search of the car. He argues that we should do so because he 

received ineffective assistance of counsel; his first attorney, he claims, incorrectly told 

him that his plea was conditional. Generally, we refuse to hear claims for ineffective 

assistance of counsel on direct appeal, preferring to hear those claims on collateral attack 

under 28 U.S.C. 2255. See United States v. Haywood, 155 F.3d 674, 678 (3rd Cir. 

1998). Because, however, we are able to decide this issue now, we will address it. See 

Government of the Virgin Islands v. Zepp, 748 F.2d 125, 133-34 (3rd Cir. 1984). 
 We find Andrews’ claim to be without merit. The standard for determining 

ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 

(1984). It consists of two components: "the defendant must show that counsel’s 

performance was deficient" and "that the deficient performance prejudiced the defense." 

Id. at 687. Here, we do not need to examine the first component, i.e., whether or not 

Andrews’ attorney told him that his plea was conditional, because clearly Andrews cannot 

show prejudice. Whether or not his plea was conditional, we have denied the motion to 

suppress as we set forth above in our discussion of Myrieckes’ plea. Therefore, even if 

Andrews’ plea had been conditional on pursuing an appeal of the denial of the motion to 

suppress, the appeal on that point would have failed. 

 For the reasons stated above, we will affirm the judgments of conviction and of 

sentence of both defendants. 

 

____________________________ 

TO THE CLERK: 

 Please file the foregoing Opinion. 

 BY THE COURT: 

 /s/ Jane R. Roth 

 Circuit Judge