United States of America v. James Anthony Hughes

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1306
UNITED STATES OF AMERICA
v.
JAMES ANTHONY HUGHES,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 00-cr-00173-1
District Judge: The Honorable Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
July 15, 2003
Before: McKEE, BARRY, and ROSENN, Circuit Judges
(Opinion Filed: July 28, 2003)
OPINION
BARRY, Circuit Judge
Defendant James Hughes was charged in a two-count indictment and, on August 9,
2000, pled guilty to distribution and possession with intent to distribute in excess of 50

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grams of crack cocaine and 5 kilograms or more of cocaine in violation of 21 U.S.C. §
846. The government agreed to recommend a three level reduction for defendant's
acceptance of responsibility, to move for the dismissal of any remaining counts after
sentencing, and to make a § 5K1.1 motion if it determined that defendant furnished
substantial cooperation.
The Presentence Report (“PSR”) calculated a criminal history of VI and a total
offense level of 35, which resulted in a sentencing range of 292-365 months. After
objections to the PSR were made, an amended PSR issued, with the addendum stating
that defendant’s guideline range would remain unchanged even if, arguendo, all of his
objections were sustained because he was properly classified as a career offender.
On January 19, 2001, the District Court imposed a 240-month sentence, adopting
the factual findings and guideline recommendations of the PSR. This sentence included a
52-month downward departure upon motion of the government for a departure of at least
three levels in light of defendant's substantial assistance.
Attorney Frank Arcuri, who was appointed to represent defendant on appeal, has
moved to withdraw and has filed an Anders brief. Inasmuch as our independent review
of the record shows no non-frivolous issues that could be raised on appeal, the judgment
of the District Court will be affirmed and counsel's motion to withdraw will be granted.
If, “after a full examination of all the proceedings,” a defendant's attorney
“decide[s that] the case is wholly frivolous,” the attorney may present this conclusion to

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the court and request leave to withdraw from the case. Anders v. California, 386 U.S.
738, 744 (1967). An appeal may be deemed frivolous if it “lacks any basis in law or
fact.” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439 n. 10 (1988).
The lone issue identified by defense counsel as worthy of considering is whether
the District Court abused its discretion when it “only reduced [defendant’s] sentence
fifty-two months below the bottom end of the standard guideline range, where the
[defendant] provided substantial information which led to the indictment and conviction
of numerous individuals.” (Anders Brief at 2). According to counsel, defendant
“contends that his sentence is excessive in light of his substantial cooperation at both the
federal and state levels. He further argues that he is rehabilitated and that the hardship of
his family conditions warrant a greater mitigation of his sentence. Finally, [defendant]
challenges the sentencing court's discretion in imposing 240 months, which was only 52
months below the bottom end of the standard guideline range,” despite the extensive and
fruitful cooperation he furnished. (Id. at 8).
It is clear that a district court's discretionary refusal to depart downward, when the
option to do so is explicitly acknowledged and rejected, is not reviewable on appeal. See,
e.g., United States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000); United States v.
Mummert, 34 F.3d 201, 205 (3d Cir. 1994). Similarly, “we lack jurisdiction to review the
extent of a District Court's discretionary downward departure for substantial assistance to
the government.” United States v. Torres, 251 F.3d 138, 145 (3d Cir. 2001). Thus, the

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District Court’s very act of granting a 52-month downward departure is an
acknowledgment of its authority that has divested us of jurisdiction over defendant’s
downward departure claim.
Defendant’s pro se submission raises the specter of a violation of Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), which held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” This
mandate, however, presupposes that a defendant has not pleaded guilty thereby waiving
his right to a jury trial and the submission to a jury of the amount and/or identity of the
drugs at issue. In any event, even were it otherwise, in light of defendant’s counseled
admission in his plea colloquy that he distributed in excess of fifty grams of crack cocaine
and the finding of the District Court that defendant distributed at least 500 grams but less
than 1.5 kilograms of crack cocaine, “[b]ecause application of the Sentencing Guidelines
in this case does not implicate a fact that would increase the penalty of a crime beyond the
statutory maximum, the teachings of Apprendi...are not relevant here.” United States v.
Cepero, 224 F.3d 256, 267 n. 5 (3d Cir.2000).
The defendant next contends that the District Court erred when it adopted, for
sentencing purposes, the PSR’s findings regarding the type and quantity of drugs in his
possession, without making its own independent determination as to the existence of the
relevant facts alleged in the PSR. See United States v. Gricco, 277 F.3d 339, 355 (3d Cir.

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1The PSR erroneously premised its conclusion that defendant possessed over 500
grams of crack on a misunderstanding of what he admitted to in his plea bargain, and the
District Court, in adopting the PSR, failed to notice the error. Defendant initially agreed
to plead to possessing over 500 grams of crack, but the agreement was later modified, and
he ultimately only pled to possession of at least 50 grams. However, in view of the
unchallenged allegations in the PSR, overwhelmingly establishing possession of over 500
grams of crack, we do not believe this oversight to be prejudicial.
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2002) (requiring explicit district court findings where PSR findings are properly
challenged). Defendant made an objection to the PSR’s findings as to drug type;
however, it was dismissed by the PSR as vague and unsubstantiated. Defendant never re-
raised the objection with supporting detail. Therefore, he failed to meaningfully challenge
any of the PSR’s findings concerning his history of drug possession, and the District
Court was permitted to accept as true the allegations in the PSR, see id., subject only to
plain error analysis. See United States v. Mustafa, 238 F.3d 485, 492 (3d Cir. 2001). We
believe that the PSR set forth ample facts from which to conclude defendant was guilty of
possessing over 500 grams of crack, and that defendant failed to adequately demonstrate
how he would challenge the PSR findings if given the opportunity. Under these
circumstances, we can perceive no prejudice, and thus no plain error.1
Finally, defendant complains that he was ineffectively represented before the
District Court. The general rule is that we will not entertain a defendant's claim of
ineffective assistance of counsel on direct appeal. See, e.g., United States v. Cianci, 154
F.3d 106, 113 (3d Cir. 1998); United States v. Gaydos, 108 F.3d 505, 512, n. 5 (3d Cir.
1997). However, “we have recognized that in some cases, albeit rare[ly,] we may have a

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sufficient record on appeal to decide the issue and avoid the considerable effort of
requiring the defendant to institute a collateral proceeding in order to raise the ineffective
assistance of counsel claim.” United States v. Cocivera, 104 F.3d 566, 570-71 (3d Cir.
1996). Any claim of ineffective assistance that could be made in this case regarding
counsel’s failure to preserve defendant's Apprendi and sentencing issues would not fall
within that narrow exception.
The judgment of sentence will be affirmed. Counsel's motion to withdraw is
granted.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/Maryanne Trump Barry
Circuit Judge

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