Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2002

USA v. McArthur
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2757




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"USA v. McArthur" (2002). 2002 Decisions. Paper 399.
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                                                 NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                          No.    01-2757



                    UNITED STATES OF AMERICA

                                 v.

                        WILLIAM MCARTHUR
                         a/k/a "Billy"

                                WILLIAM MCARTHUR,
                                          Appellant



          Appeal from the United States District Court
                 for the District of New Jersey
             (D.C. Criminal Action No. 01-cr-00122)
        District Judge: Honorable Garrett E. Brown, Jr.


           Submitted Under Third Circuit LAR 34.1(a)
                         April 19, 2002

      Before: NYGAARD, AMBRO and KRAVITCH*, Circuit Judges

(Opinion filed          July 16, 2002                               )


                            OPINION


     * Honorable Phyllis A. Kravitch, Senior United States Circuit Court Judge for the
Eleventh Circuit, sitting by designation.
AMBRO, Circuit Judge

     William McArthur appeals his conviction, following a guilty plea, for possessing
crack cocaine with the intent to distribute in violation of 21 U.S.C. 841(a)(1). Prior to
his federal prosecution, McArthur had pled guilty in state court to possession of a
controlled substance for the same conduct, but the court vacated that plea at the State’s
request. He contends on appeal that the District Court erred by denying his motion to
suppress evidence, by denying his motion to dismiss the 841(a)(1) count on either
double jeopardy or due process grounds, and by refusing to depart downward under
4A1.3 of the United States Sentencing Guidelines ("U.S.S.G."). He also argues that his
defense counsel was constitutionally ineffective. The first three issues were addressed by
McArthur’s counsel in a brief pursuant to Anders v. California, 

, 744
(1967), in which counsel found no non-frivolous claims. After an independent review of
McArthur’s claims, we affirm his conviction.
             I. Adequacy of Counsel’s Anders Brief
     Under Anders, "if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to

. The "request must, however, be accompanied by a brief
referring to anything in the record that might arguably support the appeal," and the
indigent prisoner must receive a copy of the brief to review. 

not
counsel then proceeds, after a full examination of all the proceedings, to decide whether
the case is wholly frivolous. 

review of counsel’s Anders brief is twofold: "(1) whether counsel
adequately fulfilled the rule’s requirements; and (2) whether an independent review of
the record presents any nonfrivolous issues." United States v. Youla, 

, 300
(3d Cir. 2001). Local Appellate Rule 109.2 summarizes these procedures and concludes
that "[i]f the panel agrees that the appeal is without merit, it will grant trial counsel’s
Anders motion, and dispose of the appeal without appointing new counsel." L.A.R.
109.2
      The brief McArthur’s counsel submitted in this case satisfies the procedural
requirements in Anders. It describes the case, presents the arguments McArthur might
make, and explains with legal support why the claims are frivolous. Although we would
prefer that the brief explore McArthur’s claims more thoroughly, it satisfies the standard
of "conscientious examination" described in 

. Therefore, it
meets the first prong of our test in 

. The remainder of this
opinion will consider the second prong: whether our review of the record reveals any
nonfrivolous issues for appeal. We conclude that it does not.
                   II. Suppression of Evidence
      McArthur argues that the District Court erred in denying his motion to suppress
the drugs recovered from him at the hospital. "When a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the offense with which he is charged, he
may not thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea." United States v. Fulford, 

, 10 (3d Cir. 1987) (quoting Tollett v. Henderson, 

, 267 (1973)).
Following the pretrial motion, McArthur pled guilty to violating 841(a)(1). During the
plea colloquy, the Court advised him of his constitutional rights. It also established that
he was competent, and that he understood the nature of the proceedings, the options
available to him, and the potential consequences of the guilty plea. Because McArthur’s
guilty plea was knowing and voluntary, he cannot contest the prior denial of his
suppression motion. 

.
           III. Double Jeopardy and Due Process Claims
      McArthur argues that the District Court erred by denying his motion to dismiss the
 841(a)(1) count on due process and double jeopardy grounds. First, the District Court
held that there was no basis for dismissing count two on a due process theory. We agree.
McArthur asserts that the Assistant United States Attorney brought the drug charge in
this case to punish McArthur for refusing to plead guilty to a previous indictment. We
recognize that prosecutorial vindictiveness can raise due process concerns. See United
States v. Goodwin, 

, 372-84 (1982). However, McArthur lacks support for
his claim and a presumption of prosecutorial vindictiveness is not warranted in this
context. 

      As to double jeopardy, McArthur claims that the federal government may not
prosecute him in federal court after the state court, at the State’s request, vacated his
guilty plea for the same conduct. Even if we accept, however, that jeopardy attached
when McArthur pled guilty to the state charge, the federal government was permitted to
prosecute him for the same conduct under the dual sovereign doctrine. Bartkus v.
Illinois, 

, 132 (1959). McArthur argues that this doctrine does not apply
because the federal prosecution was a "sham," but he does not support this claim.
Consequently, we affirm the District Court’s decision.
                     IV. Downward Departure
      McArthur claims the District Court erred in refusing to grant a downward
departure pursuant to U.S.S.G. 4A1.3 on the basis that his criminal history category
overstated the seriousness of his past crimes. The District Court, finding McArthur’s
criminal history "truly appalling," determined that a downward departure was not
warranted given the facts of the case. Moreover, it noted that, regardless of the
departure, McArthur would have a criminal history category of VI. We lack jurisdiction
"to review a refusal to depart downward ’when the district court, knowing it may do so,
nonetheless determines that departure is not warranted.’" United States v. Marin-
Castaneda, 

, 554 (3d Cir. 1998) (quoting United States v. Sally, 

, 78 (3d Cir. 1997)).
             V. Ineffective Assistance of Counsel
     McArthur’s final argument is that his trial counsel was ineffective. This Court,
however, generally does not decide ineffective assistance of counsel claims on direct
appeal. See United States v. Haywood, 

, 678 (3d Cir. 1998) (citing United
States v. Theodoropoulos, 

, 598 (3d Cir. 1989)). We have held that "the
proper avenue for pursuing such claims is through a collateral proceeding in which the
factual basis for the claim may be developed." 

exception to this exists
where "the record is sufficient to allow a determination of ineffective assistance of
counsel," in which case an evidentiary hearing is not needed to develop the facts. 

States v. Headley, 

, 1083 (3d Cir. 1991)). We find the
record insufficient to decide this matter.
                          * * * * *
     For these reasons, we grant counsel’s motion for leave to withdraw under Anders
and affirm the judgment of the District Court.



TO THE CLERK:

     Please file the foregoing Opinion.



                              By the Court,


                              /s/Thomas L. Ambro

                              Circuit Judg