United States of America v. Jose Croussett

NOT-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NO. 01-1633
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UNITED STATES OF AMERICA
v.
JOSE CROUSSETT,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 92-cr-00047-2)
District Judge: Honorable Franklin S. Van Antwerpen
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Submitted Under Third Circuit LAR 34.1(a)
January 16, 2002
Before: RENDELL, FUENTES and MAGILL*, Circuit Judges
(Filed: January 24, 2002)
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MEMORANDUM OPINION
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RENDELL, Circuit Judge.
On April 22, 1992, Jose Croussett was convicted by a jury of conspiracy to
distribute cocaine base, in violation of 21 U.S.C. 846, and possession with intent to
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*Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit,
sitting by designation. distribute cocaine base, in violation of 21 U.S.C. 841(a)(10). On M
Appellant was sentenced to a 19-year prison term. Croussett filed a motion for
resentencing based on a new sentencing guideline promulgated by the Sentencing
Commission, and on March 2, 2001 he was sentenced to 15 years in prison. He now
appeals from the District Court’s resentencing order. For the reasons stated below, we
will affirm the District Court’s order. In addition, we will grant the motion of
Croussett’s counsel, Robert E. Sletvold, Esq., for leave to withdraw as counsel.
Croussett’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), expressing his belief that there were no non-frivolous issues presented for our
review. As required by Anders, counsel directed us to portions of the record that might
arguably support an appeal. He points to two possible issues for appeal.
First, counsel raises whether the District Court abused its discretion by refusing to
depart downward from the sentencing guidelines range based on Croussett’s willingness
to be deported. The District Court explained that it was "aware of its power to depart,
but in exercising its discretion the Court would choose not to depart." If this were indeed
the case we would lack jurisdiction, because we have no jurisdiction to review the
District Court’s exercise of discretion. United States v. Torres, 251 F.3d 138, 145 (3d
Cir. 2001). However, the District Court erred because it did not have discretion to
depart. We have explained that "in light of the judiciary’s limited power with regard to

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deportation, a district court cannot depart downward on this basis without a request from
the United States Attorney." United States v. Marin-Castaneda, 134 F.3d 551, 555 (3d
Cir. 1998). Here the United States Attorney did not request a departure from the
Sentencing Guideline, therefore the District Court had no discretion, and, accordingly,
although we must disagree with its reasoning, we find that the District Court was correct
not to depart.
The second possible issue counsel raises is whether Croussett’s trial counsel was
ineffective. It is well established that "claims of ineffective assistance of counsel
generally are not entertained on direct appeal." United States v. Haywood, 155 F.3d 674,
678 (3d Cir. 1998). We will only review this issue on direct appeal in cases "[w]here the
record is sufficient to allow a determination of ineffective assistance of counsel. . . ." Id
As the record before us provides no basis for concluding that counsel’s performance was
inadequate or that it prejudiced the result of the District Court’s proceeding, we will
decline to review this issue. United States v. Roberson, 194 F.3d 408, 413 (3d Cir.
1999).
Moreover, as required by Anders, Croussett was given notice of his attorney’s
desire to withdraw, allowing him the opportunity to raise any issues for appeal in a pro se
brief. Although Croussett filed such a brief and raised essentially three additional
grounds for an appeal, we find them lacking in merit.
First, Croussett argues that his sentence violates Apprendi v. New Jersey, 530
U.S. 466 (2000). The teachings of Apprendi are not implicated here, however, because
the sentence was within the statutory maximum, 20 years. See United States v. Depero,
224 F.3d 256, 267 n.5 (3d Cir. 2000). Croussett’s other two issues on appeal that his
conviction was a result of informant/witness testimony that resulted from promises for
leniency, and that packaging material was improperly included in the total weight of the
cocaine base simply have no support in the record.
Our review of the record demonstrates no reason to disturb the judgment of the
District Court. We find that counsel, as required by Anders, conducted a conscientious
review of the record and correctly concluded that there were no non-frivolous issues for
appeal. 386 U.S. at 744. We are satisfied that all requirements of the Anders procedure
have been met.
Accordingly, we will GRANT counsel’s request to withdraw and will AFFIRM
the Order of the District Court.
___________________ TO THE CLERK OF COURT:
Please file the foregoing memorandum opinion.
/S/ Majorie O. Rendell
Circuit Judge
Dated: January 24, 200

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