United States of America v. Jose Brito

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4298
UNITED STATES OF AMERICA
v.
JOSE BRITO,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 00-00635)
Honorable Ronald L. Buckwalter, District Judge
Submitted under Third Circuit LAR 34.1(a)
October 29, 2004
BEFORE: SCIRICA, Chief Judge, and FISHER and GREENBERG, Circuit Judges
(Filed: March 25, 2005)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Appellant Jose Brito pleaded guilty to ten counts of a twelve-count indictment
charging him with narcotics offenses involving possession and distribution of cocaine,
cocaine base and heroin. In addition, the indictment charged him with two weapons

-- 1 of 3 --

2
offenses, but we are not concerned with them as the district court dismissed these two
offenses on the government’s motion. The district court sentenced Brito to a 235-month
custodial term to be followed by a five-year term of supervised release and Brito appeals.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction
under 28 U.S.C. §§ 1291 and 18 U.S.C. § 3742(a). Brito raises two issues on this appeal:
I. Whether the Court correctly increased the base offense level by
two points pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a
dangerous weapon while Appellant allegedly committed a violation of the
Controlled Substances Act?
II. Whether trial counsel was ineffective for not litigating the motion
to suppress the physical evidence found in 538 Walnut Street, Reading,
PA.?
The government argues that we should deny Brito’s ineffective assistance of
counsel claim without review on the merits, but without prejudice to Brito being free to
bring a collateral proceeding raising the claim under 28 U.S.C. § 2255. See, e.g., United
States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). We agree with the government on
this point and thus we do not consider the ineffective assistance of counsel claim.
Moreover, we will not review Brito’s sentencing contention as the district court should
resentence Brito in accordance with United States v. Booker, 543 U.S. , 125 S.Ct. 738
(2005).
For the foregoing reasons the judgment of conviction and sentence entered
October 28, 2003, will be affirmed with respect to the conviction but without prejudice to
Brito bringing a proceeding under 28 U.S.C. § 2255 predicated on his claim that his trial

-- 2 of 3 --

3
attorney was ineffective. We, however, will vacate the sentence and will remand the case
to the district court for resentencing.

-- 3 of 3 --