United States of America v. Osman Garba, a/k/a Alaji, a/k/a Ishmael, a/k/a Oussoumanou Garba

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4568
UNITED STATES OF AMERICA
v.
OSMAN GARBA,
a/k/a Alaji,
a/k/a Ishmael,
a/k/a Oussoumanou Garba,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 99-cr-00704-3)
District Judge: Honorable Mary Little Cooper
Submitted Under Third Circuit LAR 34.1(a)
April 4, 2005
Before: BARRY, AMBRO and COWEN, Circuit Judges
(Filed: April 13, 2005)
OPINION
AMBRO, Circuit Judge
Osman Garba appeals the District Court’s (1) denial of his motion to withdraw his

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guilty plea, (2) denial of his motion to dismiss his indictment under the Speedy Trial Act,
and (3) the sentence it imposed. For the reasons that follow, we affirm the District
Court’s denials of Garba’s motions challenging his conviction. However, in light of
United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005), we vacate his sentence and
remand for resentencing.
The District Court had jurisdiction under 18 U.S.C. § 3231. Our Court has
jurisdiction pursuant to 28 U.S.C. § 1291. As we write solely for the parties, we do not
restate the facts underlying the appeal.
I.
Garba argues that the District Court should have granted the motion to withdraw
his guilty plea “because (1) his plea was given under the mistaken belief that he would be
able to contest the amount of cocaine involved at a hearing before the sentencing; (2) his
plea was the result of ineffective assistance of counsel in violation of the Sixth
Amendment; and (3) the plea hearing conducted by the Court violated Rule 11 because
Garba was not made aware that at trial the government would have to prove the quantity
of cocaine involved to the jury beyond a reasonable doubt.” United States v. Garba, 285
F. Supp. 2d 504, 509 (D.N.J. 2003). After conducting an evidentiary hearing, the District
Court carefully considered each of these arguments at length, applying the framework we
described in United States v. Jones, 336 F.3d 245 (3d Cir. 2003), and ultimately rejected
them.

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“[T]here is no absolute right to withdraw a guilty plea,” but rather “acceptance of
the motion is within the discretion of the trial court.” Gov't of V.I. v. Berry, 631 F.2d
214, 219 (3d Cir.1980). We are satisfied that the District Court properly exercised this
discretion in a manner consistent with our Circuit’s precedent. Its denial of Garba’s
motion to withdraw his plea was thorough, careful and well-reasoned. We therefore
accept its conclusion.
II.
Having upheld the District Court’s denial of Garba’s motion to withdraw his guilty
plea, we can easily dispense with his Speedy Trial Act argument. His unconditional
guilty plea (without reservation of the right to challenge the denial of his motion under
the Act) operated as a waiver of all claims of pre-existing error (except those going to the
Court’s jurisdiction). As such, Garba has waived the right to invoke on appeal the denial
of his Speedy Trial Act motion.
III.
Only Garba’s challenge to his sentence under Booker remains. Having determined
that the sentencing issues he raises are best determined by the District Court in the first
instance, we vacate his sentence and remand for resentencing in accordance with Booker.

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