United States of America v. RICHARD MARSHALL a/k/a NOBBY RICHARD MARSHALL

NOT-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
NO. 01-1825
__________
UNITED STATES OF AMERICA
v.
RICHARD MARSHALL
a/k/a NOBBY
RICHARD MARSHALL,
Appellant
_________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 00-cr-00120-2)
District Judge: Honorable Eduardo C. Robreno
__________
Submitted Under Third Circuit LAR 34.1(a)
January 16, 2002
Before: RENDELL, FUENTES and MAGILL*, Circuit Judges
(Filed January 24, 2002 )
__________
MEMORANDUM OPINION
__________
___________________
*Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
RENDELL, Circuit Judge.
On December 19, 2000, Richard Marshall entered a plea of guilty to one count of
conspiring to obstruct justice in violation of 18 U.S.C. 1503. On March 16, 2001,
Marshall was sentenced to 60 months imprisonment with a $5,000 fine and special
assessment of $100, followed by three years of supervised release. Marshall’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), expressing his belief
that Marshall could not raise any non-frivolous issues for our review, and directing us, as
is required under Anders, to the two issues that he felt Marshall might raise on appeal.
First, counsel notes that since Marshall entered into a plea agreement with the
government, he might challenge whether the plea was knowingly, voluntarily and
willingly entered into. When Marshall changed his plea from not guilty to guilty, the
District Court conducted an extensive colloquy with Marshall, ensuring that he
understood the nature of the charges against him and the maximum sentence to which a
guilty plea would subject him. The District Court also reviewed with Marshall each right
that he was waiving by the entry of the guilty plea. At the end of the colloquy, the
District Court was satisfied that Marshall was competent to enter a guilty plea, and that he
did so voluntarily, that he understood the charges and the maximum possible penalty, and
that he understood the legal rights that he was waiving.
Second, counsel noted that part of the motivation for entering into the plea

-- 1 of 2 --

agreement was a statement made by the government in the agreement, that, if it
determined that Marshall had fulfilled all of the obligations of cooperation set forth in the
plea agreement, it would move for a downward departure under Sentencing Guideline
5K1.1. One of the obligations of cooperation was for Marshall to provide truthful,
complete and accurate information and testimony at the trial of his co-conspirator. At
trial, Marshall fulfilled his obligation during direct testimony, but during cross-
examination he altered his story in material respects, and he persisted in the changes
throughout redirect. As a result, the government declined to move for a downward
departure. As counsel noted, even where the government includes provision for a motion
for downward departure within a plea agreement, the court incorporates contract
principles in its evaluation of the prosecutor’s decision not to make the motion, but only
if the decision was based on bad faith or an unconstitutional motive. United States v.
Abuhouran, 161 F.3d 206, 211 (3d Cir. 1998). Here, no bad faith or unconstitutional
motive has been alleged, and the record does not disclose any grounds for a finding of
bad faith or an unconstitutional motive. Instead of the "complete and substantial
assistance" Marshall’s testimony was supposed to provide (Plea Agreement at 5b; App. at
A-228), the changing of his story on cross-examination "repudiated the testimony he gave
on direct examination. . . .[T]he effect of his actions was to jeopardize the Government’s
case." App. at A77. Further, the government tried to rehabilitate Marshall’s testimony on
redirect, and was unable to do so. Id.
As mentioned above, when counsel provided Marshall with the notice of
withdrawal required under Anders, Marshall filed a pro se brief with this Court raising
three additional issues: a challenge to counsel’s effectiveness, a claim that his sentence
was "illegally increased," and a challenge to the court’s jurisdiction, apparently relying on
principles drawn from Apprendi v. New Jersey, 530 U.S. 466 (2000) and Jones v. United
States, 526 U.S. 227 (1999).
As a rule, we will not entertain ineffective assistance of counsel claims on direct
appeal. See, e.g., United States v. Rieger, 942 F.2d 230, 235-36 (3d Cir. 1991), and
Marshall has raised no reason for us to make an exception to that rule. We likewise find
his sentencing challenges without merit. On March 16, 2001, Marshall was sentenced to
60 months imprisonment with a $5,000 fine and special assessment of $100, followed by
three years of supervised release. The sentence was well below the statutory maximum
sentence that was explained to him during the change of plea hearing--ten years
imprisonment with a maximum fine of $250,000. With credit for acceptance of
responsibility, the Guideline range for Marshall’s offense was 57-71 months. The
sentence the Court imposed was at the low end of the range, and the Court imposed less
than the minimum $10,000 fine and waived interest based on its finding that Marshall
could not pay more. Nothing in the sentence imposed implicates any of the concerns of
Apprendi or Jones.
After carefully reviewing the briefs and accompanying materials of record, we will
affirm the conviction and sentence. Counsel conducted a conscientious review of the
record and concluded that there were no non-frivolous issues that could be raised on
appeal. 386 U.S. at 744. We have conducted an independent examination of the record
before us, and we agree with counsel that there are no non-frivolous issues that justify
review. Because counsel has complied with all procedures specified in Anders, we will
grant his motion for withdrawal.
For the foregoing reasons, we will AFFIRM the Order of the District Court and
GRANT counsel’s request to withdraw.
_________________________ TO THE CLERK OF COURT:
Please file the foregoing Memorandum Opinion.
/s/Marjorie O. Rendell
_______________________
Circuit Judge
Dated:

-- 2 of 2 --