Nos. 00-3745/01-4510 UNITED STATES OF AMERICA v. Jeffrey A. Krader

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 00-3745/01-4510
UNITED STATES OF AMERICA
v.
JEFFREY A. KRADER,
Appellant No. 00-3745
UNITED STATES OF AMERICA
v.
ARTHUR SACKS
a/k/a
LITTLE
Arthur Sacks,
Appellant No. 01-4510
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. Nos. 99-303-1/99-303-4)
District Court: Hon. Anita B. Brody
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 20, 2002
Before: SLOVITER and McKEE, Circuit Judges,
and ROSENN, Senior Circuit Judge.
OPINION
(Filed January 10, 2003)
McKEE, Circuit Judge.

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1The other charged co-conspirators were Alvin Chacker, Jeffrey Rudner, David
Horowitz, Donald S. Hain, Anthony DeAngeles, John T. Parker and Debra F. Parker.
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Jeffrey A. Krader and Arthur L. Sacks have appealed from their judgments of
conviction and sentence arising out of a marijuana distribution conspiracy. For the reasons
that follow, we will affirm.
I.
Because we write only for the parties, it is not necessary to recite the facts of this
case. It is sufficient for our purposes to note that on June 30, 1999, a federal grand jury
returned a superseding indictment charging Krader and Sacks with conspiracy to distribute
marijuana, in violation of 21 U.S.C. § 846 (Count One),1 and possessing with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count Two). The superseding
indictment also included a notice of forfeiture listing two properties owned by Krader
which were used to facilitate marijuana distribution and a notice of forfeiture in the amount
of $4,350,000 which represented Sacks’ direct proceeds from the conspiracy.
On April 7, 2000, pursuant to a written plea agreement, Krader pled guilty to Counts
One and Two of the superseding indictment. In the plea agreement, Krader agreed in part to
pay a $100,000 fine and further agreed to the forfeiture of two facilitating properties he
owned. The plea agreement also informed Krader of the maximum sentence he could
receive as a result of his guilty plea. He was informed he could receive a term of
imprisonment of forty years, a fine of $4,000,000, a term of supervised release between
four years and life, and a $200 special assessment. On November 1, 2000, Krader was

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sentenced to a term of imprisonment of 58 months, a period of supervised release of five
years, a fine of $100,000 and a $200 special assessment.
Sacks also pled guilty to Counts One and Two of the superseding indictment on
April 7, 2000. However, on December 5, 2002, the district court vacated Sacks’ plea and
directed the Probation Office and defense counsel to each arrange for a
psychiatric/psychological evaluation of Sacks to determine competency. The competency
evaluations determined that Sacks was competent. On June 11, 2000, Sacks again pled
guilty to Counts One and Two and on December 14, 2001, he was sentenced to a term of
imprisonment of 108 months.
Krader and Sacks each filed timely appeals. Each is discussed separately.
II.
A. Krader’s Appeal (No. 00-3745).
(I). Ineffective Assistance of Counsel.
Krader claims that his counsel was ineffective “for allowing him to plead guilty to
certain mentioned aspects of the proceedings without seeking the best final disposition for
his client.” Krader’s Br. at 3. However, his ineffectiveness claim is premature. Absent
extraordinary circumstances, it is our strong preference to review allegations of ineffective
counsel in collateral proceedings under 28 U.S.C. § 2255 rather than on direct appeal.
United States v. Sandini, 888 F.2d 300, 312 (3d Cir. 1988). More often than not such
claims require an evidentiary hearing, or involve allegations that can not be resolved on the
record on a direct appeal. Id. That is precisely the situation here because of the vagueness

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of Krader’s claim. It requires additional fact-finding in collateral proceedings.
(ii). Guilty Plea.
Krader claims that “his plea of guilty was made ‘unknowingly and unintelligently’
with respect to the permissible fine and period of supervised release.” Krader’s Br. at 3.
That claim is baseless. The guilty plea agreement informed Krader of the maximum
exposure his plea would subject him to. He knew that he could receive a maximum fine of
$4 million and a term of supervised release which was required to be at least four years and
could be as long as life. The district court provided the same information during the
colloquy. There is absolutely no evidence to support Krader’s claim that he was
misinformed of the potential sentence he faced as a result of his plea. Rather, we conclude
that his plea was knowing and voluntary.
Krader further claims that “the imposed fine . . . was excessive versus his role in the
conspiracy and the roles of others involved in the crime of conviction.” Krader’s Br. at 3.
However, that claim does not entitle him to relief. As a general rule, “disparities in
sentences among co-defendants do not constitute a valid basis for downward departure in
the absence of any proof of prosecutorial misconduct.” United States v. Yeaman, 248
F.3d 223, 230 (3d Cir. 2001). Krader has not advanced any claim of prosecutorial
misconduct. All defendants faced similar charges.
Moreover, Krader offers no evidence of disparity in sentencing, and the record does
not support that claim. The evidence clearly established that Krader’s role in the
conspiracy involved the use of two of his properties to facilitate the distribution of the

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marijuana and it required his direct involvement in the actual distribution. He played a
major role in the conspiracy and realized a large financial gain as a result of his role.
Accordingly, there is no evidence to support his claim that he received a disparate sentence
from those of his co-defendants.
Moreover, Krader fails to mention that all of his co-defendants, except Sacks, not
only entered guilty pleas but substantially assisted in the government’s prosecution effort
and obtained departures on that basis. We have previously rejected purported sentencing
disparity as a basis for a downward departure where much of the disparity can be explained
by cooperation departure motions received by co-defendants. Yeaman, 248 F.3d at 230.
(iii). Excessive Fine.
Finally, Krader claims that the district court abused its discretion because it
imposed an excessive fine and that his “Due-Process rights were violated when the fine
portion of his sentence was imposed and executed without the formal ordering from the
Court.” Krader’s Br. at 3. This claim is without merit.
Pursuant to U.S.S.G. § 5E1.2©)(3) and ©)(4), the fine range at Krader’s offense
level, i.e., 25, was between $10,000 and $2 million. (The PSR, to which Krader did not
object incorrectly stated that a range of $12,500 to $4 million). Krader agreed to pay a
$100,000 fine as part of his plea agreement and the district court accepted that portion of
the agreement at the plea hearing. That $100,000 fine is well toward the lower end of the
appropriate range.
Finally, to the extent that Krader seeks appellate review of the district court’s

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2Sacks claims to be schizophrenic. However, the evidence clearly shows that Sacks was
able to develop and maintain a multi-person conspiracy which lasted over five years and
reaped millions of dollars in proceeds.
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determination of the final sentence, we are without jurisdiction to review his claim. See 18
U.S.C. § 3742(a), and United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989).
B. Sack’s Appeal (No. 01-4510).
(I). Ineffective Assistance of Counsel.
Sacks claims that his counsel was ineffective at sentencing in not seeking a
downward departure based on his psychiatric condition2 and in agreeing to the imposition of
a four-level increase for a leadership role in the offense. Sacks’ claims are premature. As
we noted in disposing of Krader’s ineffectiveness claim, this claim must be raised in a
properly filed petition for collateral review under § 2255.
(ii). Disparate Sentence.
Sacks contends that he is entitled to be resentenced because of the disparity between
his sentence and those of his co-defendants. He argues that his conduct and
responsibilities for the offense were the same as their’s, that all of the defendants pled
guilty in front of the same judge and that his sentence is “grossly disporportional to the
sentences received by his co-defendants.” Sacks’ Br. at 8. His claim is without merit.
As we noted in disposing of Krader’s disparity argument, Sacks has not put forward
any allegation of prosecutorial misconduct. All of the defendants were presented with
similar charges. Sacks did not offer substantial assistance to the prosecution and he fails

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3 See 18 U.S.C. § 3742(a), and United States v. Denardi, 892 F.2d at 272.
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to mention that all of his co-defendants, except Krader, obtained departure motions on that
basis. His disparity argument is therefore without merit. Yeaman, 248 F.3d at 230.
Disparity in sentencing is not objectionable where it is the application of the guidelines that
compels the disparity. United States v. Meza, 127 F.3d 545 (7th Cir. 1997).
Moreover, not only did Sacks fail to cooperate, he had a leadership role in the
conspiracy. He played a large role in organizing and financing the distribution of large
quantities of marijuana, in contrast to certain other co-defendants who were only hired by
Sacks to drive the loads of marijuana to Philadelphia, were paid per trip, were not involved
in the redistribution of the marijuana and did not share in the profits of the sale of the
marijuana. Sacks’ sentence fell within the guideline range and his sentence was not an
abuse of the sentencing court’s discretion.
(iii). Excessive Sentence.
Finally, Sacks argues that the sentence imposed by the district court was excessive.
This claim is also without merit. The PSR calculated the adjusted base offense as 31.
With a criminal history category of I, the guideline range was 108 to 135 months. The
district court imposed the lowest possible sentence within the guideline range.
To the extent that Sacks seeks appellate review of the district court’s determination
of the final sentence, we are without jurisdiction to review such a claim for the reasons
explained above.3

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III.
For all of the above reasons, we will affirm the judgments of conviction and
sentence as to Krader and Sacks.
TO THE CLERK OF THE COURT:
Please file the foregoing Opinion.
/s/ Theodore A. McKee
Circuit Judge

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