Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit
3-4-2003
African Amer v. Pittsburgh Precedential or Non-Precedential: Non-Precedential
Docket 01-1796
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation "African Amer v. Pittsburgh" (2003). 2003 Decisions. Paper 760. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/760
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No: 01-1796 _______________
UNITED STATES OF AMERICA
v.
MACARIO GARCIA,
Appellant
Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 00-cr-00026) District Judge: Honorable Malcolm Muir
Submitted Under Third Circuit LAR 34.1(a) on January 13, 2003
Before: ROTH, FUENTES and ALDISERT, Circuit Judges
(Opinion filed: March 4, 2003) OPINION
ROTH, Circuit Judge:
Macario Garcia appeals the sentence imposed on him by the United States
District Court for the Middle District of Pennsylvania. On November 1, 2000, Garcia pled
guilty to two counts of threatening correctional officers in violation of 18 U.S.C. § 115
(a)(1)(B). During the course of Garcia’s case before the District Court, Garcia was
represented by four different court-appointed attorneys. All were permitted by the court to
withdraw. On February 28, 2001, the District Court ruled that Garcia had forfeited his right
to be represented by counsel in any remaining proceedings due to his extremely serious
misconduct. On March 22, 2001, the District Court sentenced Garcia to 46 months
imprisonment.
Garcia appeals this sentence on several grounds: (1) the District Court erred in
calculating his offense level under U.S.S.G. § 2A6.1, (2) the District Court erred in not
decreasing his sentence under U.S.S.G. § 2A6.1(b)(5), (3) the District Court erred in
finding he obstructed justice under U.S.S.G. § 3C1.1, (4) the District Court erred in not
applying a downward departure under U.S.S.G. § 3E1.1 for his acceptance of responsibility,
(5) the District Court deprived him of his 6th Amendment right to counsel, and (6) his
attorney was ineffective because he did not request another mental evaluation.
We have appellant jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
2 review over the District Court’s interpretation and legal applications of the Sentencing
Guidelines. United States v. Figueroa, 105 F. 3d 874, 875-76 (3d Cir. 1997) citing
United States v. Hallman, 23 F. 3d 821, 823 (3d Cir. 1994). We review the District
Court’s factual applications of the Sentencing Guidelines for clear error only. Id.
First, Garcia contends that the District Court erroneously applied U.S.S.G. § 2A6.1
in calculating his offense level. Garcia’s guilty plea, however, was based on a written plea
agreement between himself, his court-appointed attorney at the time, Ronald Travis, and the
U.S. Attorney. In Point 1 of the Plea Agreement, Garcia agreed to plead to two counts
under 18 U.S.C. § 115 (a)(1)(B). In Point 12 of the Plea Agreement, the United States and
Garcia agreed that “the maximum penalty with respect to each count under Title 18, United
States Code, § 115 (b)(4) is not more than three (3) years imprisonment.” At Garcia’s
plea hearing, the District Court found the plea agreement to be knowingly, voluntarily and
intelligently accepted. Garcia and his counsel agreed to Garcia being sentenced under §
115 (b)(4). It is clear in the Statutory Index, Appendix A, of the United States Sentencing
Guidelines, that a defendant convicted of violation of § 115 (b)(4) is to be sentenced under
U.S.S.G. § 2A6.1. For that reason, the District Court correctly applied U.S.S.G. § 2A6.1.
Second, Garcia argues the District Court should have decreased his sentence by four
offense levels under U.S.S.G. § 2A6.1 (b)(5)(B) because the “offense involved a single
instance evidencing little or no deliberation.” Garcia contends that he raised a similar
objection at his sentencing hearing but the District Court ignored it. During the sentencing
hearing, however, Garcia was given a two hour and 26 minute recess to review the
3 presentence report. Included in the report was Garcia’s sentencing calculation. After the
recess, Garcia was asked if he objected to any portions of the report. He had no objections.
Moreover, the District Court concluded that Garcia’s conduct was part of a concerted
effort on multiple occasions to threaten and assault prison staff. Our review of the record
convinces us that the District Court did not err in so concluding.
Third, Garcia argues the District Court erred in finding that he obstructed justice
when he asked another inmate, Pierre Cannon, to testify falsely. Garcia contends that this
testimony was not material to and did not relate to the offenses of conviction.
Nonetheless, under U.S.S.G. § 3C1.1 Application Note 4(b), “committing, suborning, or
attempting to suborn perjury” is conduct that suffices as obstruction of justice and permits
an offense level increase of two. We conclude that the District Court did not err in
enhancing Garcia’s offense level under U.S.S.G. § 3C1.1 for his obstruction of justice.
Fourth, Garcia argues the District Court should have found that he accepted
responsibility under U.S.S.G. § 3E1.1. We are guided by Application Note 5 of U.S.S.G. §
3E1.1, which states “the sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility. For this reason, the determination of the sentencing judge is
entitled to great deference on review.” Moreover, case law allows the District Court to
look at any post-offense conduct, whether relating to the original crime or not. See United
States v. Ceccarani, 98 F. 3d 126, 129 (3d Cir. 1996). The District Court is permitted to
consider uncharged conduct in determining whether and how to apply an adjustment for
acceptance of responsibility. United States v. Pollard, 986 F. 2d 44, 47 (3d Cir. 1997).
4 We conclude that the District Court used relevant and applicable post-offense conduct by
Garcia to determine that a downward departure for acceptance of responsibility was not
warranted under U.S.S.G. § 3E1.1.
Fifth, Garcia contends that he was subjected to ineffective assistance of counsel
when his last court-appointed attorney did not have him evaluated by a private mental health
professional. We have repeatedly held, however, that “the proper avenue for
pursuing such claims is through a collateral proceeding in which the factual basis for the
claim may be developed.” See United States v. Theodoropoulos, 866 F. 2d 587, 598 (3d
Cir. 1989).
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Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit
3-4-2003
African Amer v. Pittsburgh Precedential or Non-Precedential: Non-Precedential
Docket 01-1796
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation "African Amer v. Pittsburgh" (2003). 2003 Decisions. Paper 760. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/760
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No: 01-1796 _______________
UNITED STATES OF AMERICA
v.
MACARIO GARCIA,
Appellant
Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 00-cr-00026) District Judge: Honorable Malcolm Muir
Submitted Under Third Circuit LAR 34.1(a) on January 13, 2003
Before: ROTH, FUENTES and ALDISERT, Circuit Judges
(Opinion filed: March 4, 2003) OPINION
ROTH, Circuit Judge:
Macario Garcia appeals the sentence imposed on him by the United States
District Court for the Middle District of Pennsylvania. On November 1, 2000, Garcia pled
guilty to two counts of threatening correctional officers in violation of 18 U.S.C. § 115
(a)(1)(B). During the course of Garcia’s case before the District Court, Garcia was
represented by four different court-appointed attorneys. All were permitted by the court to
withdraw. On February 28, 2001, the District Court ruled that Garcia had forfeited his right
to be represented by counsel in any remaining proceedings due to his extremely serious
misconduct. On March 22, 2001, the District Court sentenced Garcia to 46 months
imprisonment.
Garcia appeals this sentence on several grounds: (1) the District Court erred in
calculating his offense level under U.S.S.G. § 2A6.1, (2) the District Court erred in not
decreasing his sentence under U.S.S.G. § 2A6.1(b)(5), (3) the District Court erred in
finding he obstructed justice under U.S.S.G. § 3C1.1, (4) the District Court erred in not
applying a downward departure under U.S.S.G. § 3E1.1 for his acceptance of responsibility,
(5) the District Court deprived him of his 6th Amendment right to counsel, and (6) his
attorney was ineffective because he did not request another mental evaluation.
We have appellant jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
2 review over the District Court’s interpretation and legal applications of the Sentencing
Guidelines. United States v. Figueroa, 105 F. 3d 874, 875-76 (3d Cir. 1997) citing
United States v. Hallman, 23 F. 3d 821, 823 (3d Cir. 1994). We review the District
Court’s factual applications of the Sentencing Guidelines for clear error only. Id.
First, Garcia contends that the District Court erroneously applied U.S.S.G. § 2A6.1
in calculating his offense level. Garcia’s guilty plea, however, was based on a written plea
agreement between himself, his court-appointed attorney at the time, Ronald Travis, and the
U.S. Attorney. In Point 1 of the Plea Agreement, Garcia agreed to plead to two counts
under 18 U.S.C. § 115 (a)(1)(B). In Point 12 of the Plea Agreement, the United States and
Garcia agreed that “the maximum penalty with respect to each count under Title 18, United
States Code, § 115 (b)(4) is not more than three (3) years imprisonment.” At Garcia’s
plea hearing, the District Court found the plea agreement to be knowingly, voluntarily and
intelligently accepted. Garcia and his counsel agreed to Garcia being sentenced under §
115 (b)(4). It is clear in the Statutory Index, Appendix A, of the United States Sentencing
Guidelines, that a defendant convicted of violation of § 115 (b)(4) is to be sentenced under
U.S.S.G. § 2A6.1. For that reason, the District Court correctly applied U.S.S.G. § 2A6.1.
Second, Garcia argues the District Court should have decreased his sentence by four
offense levels under U.S.S.G. § 2A6.1 (b)(5)(B) because the “offense involved a single
instance evidencing little or no deliberation.” Garcia contends that he raised a similar
objection at his sentencing hearing but the District Court ignored it. During the sentencing
hearing, however, Garcia was given a two hour and 26 minute recess to review the
3 presentence report. Included in the report was Garcia’s sentencing calculation. After the
recess, Garcia was asked if he objected to any portions of the report. He had no objections.
Moreover, the District Court concluded that Garcia’s conduct was part of a concerted
effort on multiple occasions to threaten and assault prison staff. Our review of the record
convinces us that the District Court did not err in so concluding.
Third, Garcia argues the District Court erred in finding that he obstructed justice
when he asked another inmate, Pierre Cannon, to testify falsely. Garcia contends that this
testimony was not material to and did not relate to the offenses of conviction.
Nonetheless, under U.S.S.G. § 3C1.1 Application Note 4(b), “committing, suborning, or
attempting to suborn perjury” is conduct that suffices as obstruction of justice and permits
an offense level increase of two. We conclude that the District Court did not err in
enhancing Garcia’s offense level under U.S.S.G. § 3C1.1 for his obstruction of justice.
Fourth, Garcia argues the District Court should have found that he accepted
responsibility under U.S.S.G. § 3E1.1. We are guided by Application Note 5 of U.S.S.G. §
3E1.1, which states “the sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility. For this reason, the determination of the sentencing judge is
entitled to great deference on review.” Moreover, case law allows the District Court to
look at any post-offense conduct, whether relating to the original crime or not. See United
States v. Ceccarani, 98 F. 3d 126, 129 (3d Cir. 1996). The District Court is permitted to
consider uncharged conduct in determining whether and how to apply an adjustment for
acceptance of responsibility. United States v. Pollard, 986 F. 2d 44, 47 (3d Cir. 1997).
4 We conclude that the District Court used relevant and applicable post-offense conduct by
Garcia to determine that a downward departure for acceptance of responsibility was not
warranted under U.S.S.G. § 3E1.1.
Fifth, Garcia contends that he was subjected to ineffective assistance of counsel
when his last court-appointed attorney did not have him evaluated by a private mental health
professional. We have repeatedly held, however, that “the proper avenue for
pursuing such claims is through a collateral proceeding in which the factual basis for the
claim may be developed.” See United States v. Theodoropoulos, 866 F. 2d 587, 598 (3d
Cir. 1989). There is a narrow exception to this rule, “where the record is sufficient to
allow determination of ineffective assistance of counsel, an evidentiary hearing to develop
the facts is not needed.” United States v. Headley, 923 F. 2d 1079, 1083 (3d Cir. 1991)
citing Government of Virgin Islands v. Zepp, 748 F. 2d 125, 133 (3d Cir. 1984). Garcia
does not point us to any relevant parts of the record that could be sufficient to allow such a
determination. We conclude that his claims cannot now be reviewed. If he decides to
pursue this issue, he must do so in a later petition for habeas corpus.
Finally, Garcia argues that the District Court erroneously deprived him of his right
to counsel. Garcia contends the District Court should not have allowed his third of four
court-appointed attorneys, Robert Travis, to withdraw because of a potential necessity for
Travis to be a fact witness in a future proceeding. However, after Travis’s withdrawal, the
District Court appointed a fourth attorney, Stephen Smith. It was at the time of Smith’s
5 withdrawal that the District Court deemed Garcia to have forfeited his right to counsel.
The District Court found that Garcia had engaged in threatening and abusive
misconduct involving all four of his court-appointed attorneys. Further, the District Court
gave Garcia an unequivocal “fair warning” as to his potential forfeiture if he continued this
conduct. This warning was given nine months and two attorneys prior to the District
Court’s decision to forfeit Garcia’s right to counsel because of his abusive and threatening
conduct.
For the above reasons, we will affirm the judgment of the District Court.
6 ______________________
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/Jane R. Roth Circuit Judge