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


4-3-2002

USA v. Mayhan
Precedential or Non-Precedential:

Docket No. 01-2128




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Recommended Citation
"USA v. Mayhan" (2002). 2002 Decisions. Paper 242.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/242


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                                                                                NOT PRECEDENTI

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 01-2128


                      UNITED STATES OF AMERICA

                                  v.

                           DEBORAH MAYHAN,
                                           Appellant



         On Appeal from the United States District Court
                   for the District of Delaware
                   (D.C. Crim.No. 99-cr-00012)
            District Judge: Hon. Roderick R. McKelvie


            Submitted Under Third Circuit LAR 34.1(a)
                          April 1, 2002

           Before:   SLOVITER, FUENTES and MICHEL,* Circuit Judges

                      (Filed:   April 2, 2002)



                         OPINION OF THE COURT

______________________

     *    Hon. Paul R. Michel, United States Court of Appeals for the Federal Circuit,
     sitting by designation.SLOVITER, Circuit Judge.

     This is an appeal by Deborah Mayhan from the order of the District Court denying
her amended motion under 28 U.S.C. 2255 to vacate her sentence. Mayhan, who was
indicted on three counts, pled guilty to distribution and aiding and abetting in the
distribution of heroin in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C) and 18 U.S.C.
2. Pursuant to the plea agreement, the District Court dismissed the other two counts, and
Mayhan was sentenced to thirty-seven months imprisonment, three years of supervised
release, and $100.00 special assessment.
     No direct appeal was taken but within a year after the sentence, Mayhan filed a
pro se motion under 28 U.S.C. 2255 to vacate her sentence, which she thereafter
amended. The District Court appointed counsel for Mayhan and reinstated her right to
appeal.
     At the outset, we note that although counsel has purported to file a brief pursuant
to Anders v. California, 

(1967), in fact we find counsel’s brief inadequate.
Under Anders, counsel has the obligation to make a conscientious examination and
independent review of the record and present any issues that are not frivolous. In the
sparse appellate brief, with but two short pages setting forth the facts, counsel has
presented no argument at all, stating only that "Appellant respectfully requests that this
Honorable Court independently review the trial record below and enter an order which
would serve the best interests of justice." Appellant’s Br. at 8. Anders requires that
counsel perform that function, not that counsel shift that function to the court. 

. Under other circumstances, we would dismiss counsel and reappoint
new counsel. However, the government, apparently recognizing the inadequacy of the
appellant’s brief, has undertaken to perform the appropriate function and has done so
conscientiously, reviewing each possible ground that Mayhan might assert and showing
as to each why it would not be successful. Under the circumstances, we express our
appreciation to the U.S. Attorney’s Office for this assistance.
     The facts which form the basis of the indictment are familiar, as we have seen
them numerous times. Mayhan participated in the distribution of a controlled substance,
in this case heroin, to a confidential witness cooperating with the Drug Enforcement
Agency, and she received from the witness $1,800.00 in return for 9.7 grams of heroin.
Mayhan, who was the girlfriend of the charged co-conspirator, Robert Sanders, advised
the agents that she would deliver the heroin to them if Sanders were unavailable.
     In its brief, the government notes that Mayhan did not raise any objections or
claims at her sentencing in the District Court. It noted that Mayhan might argue that the
government had breached the plea agreement when the court sentenced her not only
using the 9.7 grams of heroin to which she pled guilty but also the 15.6 grams of heroin
from the count that was dismissed pursuant to the plea agreement. However, the plea
agreement contained a stipulation that included not only the delivery of the 9.7 grams of
heroin, but also Mayhan’s role in facilitating co-conspirator Sanders’ distribution of 15.6
grams of heroin later that month. The plea agreement did not limit the use of U.S.S.G.
1B1.3 relevant conduct at Mayhan’s sentencing and thus there was no breach of the plea
agreement. Nor could Mayhan claim that her facilitation of the delivery of the 15.6
grams of heroin is not relevant conduct properly used to determine her sentence. The
government’s brief shows that the temporal proximity, the repetition, and the similarity
of the offenses all support the court’s attribution of the 15.6 grams of heroin from the
dismissed count as relevant conduct.
     The government’s brief also notes Mayhan’s contention that the convictions of
another person were used to calculate her criminal history score in her pre-sentence
report. She has not alleged which convictions she contests, she did not object at the
sentencing to the pre-sentence report or to the guideline calculations leading to an
imprisonment range of thirty to thirty-seven months, and thus she has not shown any
error from the court’s reliance on the pre-sentence report’s findings.
     Mayhan alleged in her amended 2255 motion that her sentence was improperly
enhanced for being a "major role" player. She is in error as she did not receive a major
role adjustment to her guideline range. She could not persuasively argue that she should
have received a minor role adjustment because it would be inconsistent with the fact that
both she and Sanders took phone orders for delivery of heroin, and they each delivered
heroin to the cooperating witness. Nor could Mayhan succeed on any claim that her
sentence violated the Supreme Court’s decision in Apprendi v. New Jersey, 

(2000). Mayhan’s sentence of thirty-seven months imprisonment is considerably below
the 240-month statutory maximum. See United States v. Williams, 

, 863
(3d Cir. 2000). We note that her co-conspirator, Sanders, was sentenced to 108 months
imprisonment.
     For the reasons set forth, we will affirm the District Court’s order denying
Mayhan’s motion pursuant to 28 U.S.C. 2255.
____________________
TO THE CLERK:

          Please file the foregoing opinion.



                    s/s Dolores K. Sloviter
                    Circuit Judge