United States of America v. DANIEL McELHENEY

McElheney’s attorney filed a brief under Anders v. California, 386 U.S. 738 (1967),1
and a motion to withdraw as court-appointed counsel. McElheny filed a pro se brief with
this Court on November 1, 2006.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4910
UNITED STATES OF AMERICA
v.
DANIEL McELHENEY,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 04-cr-00682
(Honorable Joseph H. Rodriguez)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 17, 2008
Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges.
(Filed February 21, 2008)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Daniel McElheney appeals his criminal sentence and conviction. We will affirm.1

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The base offense level was at least 38 with a three-level reduction for acceptance of2
responsibility and for a timely plea of guilty.
2
McElheney pled guilty to a one-count information charging conspiracy to
distribute and to possess with intent to distribute more than 1.5 kilos of crystal
methamphetamine under 21 U.S.C. § 846. In exchange for his guilty plea, the
government agreed not to bring additional charges. Additionally, McElheney waived his
right to appeal the District Court’s determination of the offense level if found to be equal
to or less than 35, and the government likewise waived the right to appeal if the total
offense level was equal to or greater than 33. In the plea agreement, both parties agreed
the total offense level was 35. Defense counsel and the court discussed with McElheney2
the proposed plea agreement, as well as his right to a jury trial, the risks associated with
trial and pleading, and the advisory nature of the sentencing guidelines. McElheney
entered his plea knowingly, intelligently, and voluntarily.
The District Court agreed the total offense level was 35 with a corresponding
guideline range of 188 to 235 months. When given the chance to offer mitigating factors,
defense counsel argued McElheney’s need to pay for counsel in a separate pending
lawsuit spurred his participation in the drug conspiracy. The court sentenced McElheney
to 94 months, departing downward from the guideline minimum.
Our review reveals defense counsel thoroughly considered all plausible bases for
appeal and set forth in the Anders brief why such issues were legally frivolous. Counsel

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3
examined at length the guilty plea colloquy transcript, the sentencing transcript, the
Presentence Investigative Reports, and other documents. McElheney knowingly and
voluntarily entered into the guilty plea agreement, waiving his Constitutional rights.
McElheney acknowledged he understood the charges and essential elements to which he
pled guilty. The District Court’s sentence was half of the guideline minimum. Based on
our own examination of the record, we conclude that counsel satisfied the requirements of
Third Circuit Local Appellate Rule 109.2(a) under Anders.
McElheney also submitted a brief, raising two issues: 1) ineffective assistance of
counsel, and 2) the total offense level should have been reduced under U.S.S.G. § 5K2.12
for “coercion and duress”. We do not ordinarily consider ineffective assistance claims on
direct review, as such claims are “best decided in the first instance in a collateral action.”
United States v. Thornton, 327 F.3d 268, 272 (3d Cir. 2003).
Turning to McElheney’s second contention, under U.S.S.G. § 5K2.12 “[o]rdinarily
coercion will be sufficiently serious to warrant departure only when it involves a threat of
physical injury, substantial damage to property, or similar injury resulting from the
unlawful action of a third party . . . . [P]ersonal financial difficulties . . . do not warrant a
downward departure.” The “need” to pay defense counsel fees in a separate action does
not rise to the level of coercion or duress described by U.S.S.G. § 5K2.12.
Accordingly, there are no non-frivolous arguments raised in this appeal.

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4
For the foregoing reasons, we will affirm the judgment and sentence of the District
Court. Defense counsel’s motion to withdraw is granted.

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