and 02-3491 UNITED STATES OF AMERICA v. Charles R. Namey

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-3327 and 02-3491
UNITED STATES OF AMERICA
v.
CHARLES R. NAMEY,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 97-cr-00063-3
District Judge: The Honorable Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
July 18, 2003
Before: McKEE, BARRY, and W EIS, Circuit Judges
(Opinion Filed: August 5, 2003)
OPINION
BARRY, Circuit Judge
Because we write only for the benefit of the parties and the District Court, we will
recount the facts only as they pertain to our analysis, rather than reciting them in their

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entirety.
Appellant Charles Namey was indicted in April 1997 and charged with conspiring
to distribute and possess with intent to distribute in excess of five kilograms of cocaine, in
violation of 21 U.S.C. § 846. On September 15, 1997, the day on which appellant’s trial
commenced, the government filed and served an information pursuant to 21 U.S.C. § 851,
alleging that appellant had a prior felony drug conviction. Appellant was convicted by a
jury and sentenced on January 22, 1999 to twenty years imprisonment after an
enhancement was imposed in light of his prior drug conviction. Both his subsequent
appeal to this Court and his petition for certiorari to the Supreme Court of the United
States were unsuccessful.
On May 11, 2001, appellant filed a pro se motion pursuant to 28 U.S.C. § 2255,
arguing that his conviction should be vacated, set aside, or corrected on any of several
grounds, one of which was an allegation that his sentence was improperly enhanced under
21 U.S.C. § 851. On July 25, 2001, the District Court denied this motion in all respects,
save for a hearing that it ordered “solely on the issue of whether trial counsel . . .
discussed with [Namey] the filing of the Government of the § 851 Notice and its
potential effect” on Namey’s sentence. (App. at 7). On June 19, 2002, the District Court
found that because the government had not furnished appellant with timely notice that it
intended to seek a § 851 enhancement, the Court lacked the authority to impose an
enhanced mandatory minimum sentence, and it vacated appellant’s 20 year sentence.

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With the enhanced sentence vacated, the District Court reasoned, appellant’s ineffective
assistance claim was rendered moot.
On August 13, 2002, a resentencing hearing was held, at which time appellant
moved for a 5K2.0 downward departure, asserting, as relevant here, that he had never
been told he would be sentenced to twenty years if he lost at trial and that his attorney had
neglected to discuss any options with him other than that of going to trial. The departure
motion was denied, and the District Court sentenced appellant to 168 months
imprisonment.
Appellant now appeals the District Court’s determination that his ineffective
assistance of counsel claim was rendered moot as well as the District Court’s denial of his
motion for a downward departure. For the following reasons, we will affirm. We have
jurisdiction over these appeals pursuant to 28 U.S.C. § 1291.
Mootness of the Ineffective Assistance Claim
The District Court found appellant’s ineffective assistance claim to be moot
because the enhanced sentence was vacated and, thus, “whether Namey received
competent advice with respect to the enhanced sentence is meaningless” (App. at 16). “A
central question in determining mootness is whether a change in circumstances since the
beginning of the litigation precludes any occasion for meaningful relief,” and whether or
not a “case and controversy remains.” Old Bridge Owners Co-op. Corp. v. Township of

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Old Bridge, 246 F.3d 310, 314 (3d Cir. 2001). Here, despite the District Court’s June,
2002 mootness determination, the Court later addressed itself to the ineffective assistance
claim itself when it found that “[t[he evidence is clear that no deal was offered, that no
plea was offered by the Defendant himself,” and that while trial counsel had “tried to
work out a deal, . . . the Government was not interested in that deal.” (App. at 546-47).
The District Court specifically found credible trial counsel’s testimony that, among other
things, “the Defendant never would have testified against his co-defendants and that we
are in the same situation here as we were [in] back in 1997, . . . when [appellant] says he
lacked knowledge about [an] enhancement.” (Id. at 547). Counsel also testified that he
advised appellant what sentence he faced if convicted.
In light of these findings, and in light of the fact that they rendered the prejudice
prong of appellant’s required showing under Strickland v. Washington, 466 U.S. 668
(1984), insurmountable, we see no basis upon which to resurrect the ineffective assistance
claim on the record before us. Moreover, we reject without further discussion appellant’s
protestations that insufficient factual findings were made to dispose of that claim.
The Dow nward Departure
Appellant also argues that the District Court abused its discretion when it declined
to grant him his requested downward departure. We lack jurisdiction to address this
claim, given that the District Court explicitly acknowledged its authority to depart and

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employed the correct legal standard when declining to do so. See, e.g., United States v.
Vitale, 159 F.3d 810, 816 (3d Cir. 1998).
We will AFFIRM.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne Trump Barry
Circuit Judge

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