United States of America v. Raymond Davis

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-2622
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UNITED STATES OF AMERICA
v.
RAYMOND DAVIS,
Appellant
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Crim. No. 00-cr-00737
District Judge: The Honorable Garrett E. Brown, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
June 5, 2002
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Before: SCIRICA, BARRY, and WEIS, Circuit Judges
(Opinion Filed: June 6, 2002 )
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OPINION OF THE COURT
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BARRY, Circuit Judge
Raymond Davis pled guilty to possession of crack cocaine with the intent to
distribute in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. On appeal, Davis
attacks his conviction, arguing that the District Court committed reversible error when it
denied his request for discovery to establish that he was the victim of selective
prosecution. In the alternative, Davis argues that the District Court erred when it
sentenced him because it declined to downward depart from the United States Sentencing
Guidelines. We have jurisdiction to review the denial of discovery and the resulting
conviction pursuant to 28 U.S.C. 1291. As discussed below, we lack jurisdiction to
review the District Court’s discretionary refusal to depart.
Because the parties are familiar with the facts, we need not recite them in great
detail here. Suffice it to say that on March 2, 2000, police officers in Cumberland
County, New Jersey, executed a search warrant at the residence of Davis and his fianc‚,
Carmen Colon. The police found marijuana and crack cocaine in the master bedroom
closet, including 245 grams of crack cocaine in a pair of Davis’ pants. Davis and Colon
were both charged with state drug law violations, but only Davis was charged with
federal violations. Davis made several pre-trial motions in the District Court, including a

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motion to "require the Government to produce proof regarding [his] referral for federal
prosecution." App. at 10. Davis, an African-American, claimed that federal charges
were brought against him and not Colon, a woman of Hispanic descent, simply because
he was black. The Government maintained that only Davis was charged because the
evidence strongly indicated that the crack cocaine found in Davis’ pants belonged to him,
not to Colon. The District Court denied Davis’ motion for pre-trial discovery, finding
Davis’ claim of selective prosecution unavailing.
On January 25, 2001, Davis knowingly, voluntarily, and unconditionally pled
guilty to the possession of crack cocaine with the intent to distribute, in violation of 21
U.S.C. 841(a)(1) and 18 U.S.C. 2. The District Court subsequently held a sentencing
hearing, at which it granted Davis a two-level minor role adjustment pursuant to
U.S.S.G. 3B1.2(b). The Court granted an additional two-level "safety valve"
adjustment, thereby allowing Davis to avoid a mandatory minimum of 10 years in prison.
18 U.S.C. 3553(f); U.S.S.G. 5C1.2. Although Davis had expressed remorse, enrolled
in academic classes, applied for a drug counseling program, and acquired a job in prison,
the District Court declined to grant Davis’ request for a downward departure based upon
his post-offense rehabilitation efforts or other allegedly remarkable factors. Noting that
Davis had been arrested eight times and was "clearly a danger to society," the District
Court sentenced him to 76 months in prison. App. at 45-46.
A. Selective Prosecution Claim Forfeited
Davis claims that the Government decided to charge him with violations of 21
U.S.C. 841(a)(1) and 18 U.S.C. 2 because of his race, thereby violating his
constitutional rights under the Equal Protection Clause and Due Process Clause. He
argues that his unconditional plea of guilt does not preclude him from attacking the
District Court’s decision to deny him discovery regarding this selective prosecution
claim. Generally, when the accused in a criminal proceeding enters an unconditional
plea of guilt, "he may not thereafter raise independent claims relating to the deprivation
of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (citing Brady v. United States, 397 U.S. 742, 750
(1970); McMann v. Richardson, 397 U.S. 759, 770 (1970); Parker v. North Carolina,
397 U.S. 790, 798 (1970)). A defendant does not waive his right to appeal, however,
when the record existing at the time of the plea makes it clear that the government did
not have the power to constitutionally "hal[e] a defendant into court on a charge."
United States v. Broce, 488 U.S. 563, 569 (1989) (quoting Menna v. New York, 423
U.S. 61, 62 (1975)). In such cases, the defendant may retain a basis for appeal, often
referred to as a "jurisdictional defense."
The precise definition of a jurisdictional defense is not entirely clear. The
Supreme Court has held that double jeopardy constitutes a jurisdictional defense.
Menna, 423 U.S. at 62. The Eighth Circuit has held that an "indictment [that] on its face
fails to state an offense" also qualifies. United States v. Fitzhugh, 78 F.3d 1326, 1330
(8th Cir. 1996) (quoting O’Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988)).
The Ninth Circuit has stated that a jurisdictional defense exists if the statute under which
charges are brought is facially unconstitutional. United States v. Cortez, 973 F.2d 764,
767 (9th Cir. 1992) (citing Menna, 423 U.S. at 62). The Supreme Court has also held
that claims of vindictive prosecution constitute a jurisdictional defense. Blackledge v.
Perry, 417 U.S. 21, 30 (1974). To date, however, no court has explicitly ruled on
whether a selective prosecution claim would constitute a jurisdictional defense.
While it is an interesting legal question, this case does not require us to decide
whether an unconditional guilty plea results in the waiver of a selective prosecution
claim. The jurisdictional claim exception is limited "to those cases in which the district
court could determine that the government lacked the power to bring the indictment at
the time of accepting the guilty plea from the face of the indictment or from the record."
Cortez, 973 F.2d at 767 (emphasis in original) (citing Broce, 488 U.S. at 569). When
Davis entered his guilty plea, nothing on the face of the indictment or in the record
indicated that he was being selectively prosecuted. Accordingly, Davis is barred from
attacking his plea on those grounds.
Davis counters that no evidence existed to show selective prosecution at the time
he pled guilty because he had been denied pre-trial discovery. While this may be so, it
does not change the result here. Davis voluntarily and unconditionally pled guilty after
the alleged constitutional violation occurred, thereby waiving his right to appeal that

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violation. If he wished to preserve a selective prosecution claim, he should have sought
to enter a conditional plea of guilty in accordance with Fed. R. Crim. P. 11(a)(2). United
States v. Suter, 755 F.2d 523, 527 (7th Cir. 1985). This would have enabled him to have
argued to us that there should be a remand for purposes of obtaining the discovery he
believed he needed.
B. No Jurisdiction to Review Decision Not to Depart from Sentencing Guidelines
Davis also argues that the District Court erred when it declined to depart from the
Sentencing Guidelines. He asserts that he deserved a downward departure based upon
his post-offense rehabilitation efforts or a combination of other remarkable factors. Post-
offense rehabilitation may constitute a ground for a departure where the defendant’s
efforts are "exceptional." United States v. Sally, 116 F.3d 76, 80 (3d Cir. 1997).
Similarly, a combination of other remarkable factors may justify a downward departure,
although such cases are "extremely rare." U.S.S.G. 5K2.0, Commentary. In either
case, the District Court’s decision to grant or not grant a downward departure is
discretionary. United States v. Yeaman, 248 F.3d 223, 227 (3d Cir. 2001); U.S.S.G.
5K2.0, Commentary.
Generally, "we lack jurisdiction to review a refusal to depart downward when the
district court . . . determines that a departure is not warranted." See, e.g., United States
Marin-Castaneda, 134 F.3d 551, 554 (3d Cir. 1998) (internal quotations omitted) (citing
Sally, 116 F.3d at 78). A limited exception exists when the sentencing court "believes it
lacks the authority" to depart downward. 134 F.3d at 554. Here, however, it is
abundantly clear that the District Court knew it had the authority to depart and simply
chose not to do so. App. at 43-44. Thus, while Davis may not agree with the District
Court’s decision, we lack the jurisdiction to review it.
For the foregoing reasons, we will affirm Davis’ conviction and will not disturb
the sentence imposed by the District Court.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Memorandum Opinion.
/s/ Maryanne Trump Barry
Circuit Ju

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