United States v. Shedrick

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

7-19-2007

USA v. Shedrick

Precedential or Non-Precedential: Precedential

Docket No. 04-2329

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2329

UNITED STATES

v.

JAMES SHEDRICK,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 02-cr-00523)

District Judge: Honorable Legrome D. Davis

Argued June 1, 2006

Opinion Filed February 28, 2007

Panel Rehearing Granted and Vacated April 26, 2007

Before: AMBRO, FUENTES, and

GREENBERG, Circuit Judges

(Opinion filed: July 19, 2007)

Peter A. Levin, Esquire (Argued)

1927 Hamilton Street

Philadelphia, PA 19103

Counsel for Appellant

Patrick L. Meehan

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

Thomas P. Hogan, Jr. (Argued)

Assistant United States Attorney

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge.

James Shedrick appeals from the District Court’s denial

of his 28 U.S.C. § 2255 petition for habeas corpus alleging

ineffective assistance of counsel on two grounds. The

2

Government first contests our jurisdiction, however, because of

an appellate and collateral-review waiver contained in

Shedrick’s signed plea agreement. We conclude that we have

jurisdiction over this appeal relating to ineffective-assistance-of-

counsel claims; to hold otherwise could work a miscarriage of

justice. We next affirm the District Court’s denial of Shedrick’s

claim that his counsel was ineffective for failing to advise him

about sentencing matters, but conclude, contrary to the District

Court, that ineffectiveness of counsel prevented Shedrick from

timely appealing. Therefore, we vacate his sentence and remand

this case with directions for the District Court to re-enter it.

Shedrick will then be able to file a timely direct appeal, which

we will consider in the normal course.

I. Factual and Procedural Background

In the early morning of July 11, 2002, Philadelphia Police

Officers Keya Mason, Raymond Rutter, and Joy Gallen-Ruiz,

along with Sergeant Beverly Pembrook, were on patrol in

Philadelphia’s 12th District. Officer Mason responded to a 911

emergency call reporting a man with a gun located at 64th Street

and Greenway Avenue. Upon arriving at that address, Officer

Mason heard gun shots but did not see anyone in the area.

Sergeant Pembrook also responded immediately to the

911 call and, like Officer Mason, did not find anyone at the

scene. After a short time, however, Pembrook observed a

man—later identified as Shedrick—standing in the middle of the

3

intersection holding a large silver revolver in his right hand.

Pembrook made a priority radio call for back-up, stating that the

suspect was armed and not in custody.

By that time, Mason had joined Pembrook. Officers

Rutter and Gallen-Ruiz, who were riding together, also arrived

at the scene. Pembrook and Mason stood in front of a police car

and attempted to engage Shedrick while Rutter and Gallen-Ruiz

began to approach him from covered positions behind parked

cars. The officers repeatedly instructed Shedrick to drop the

gun, but he refused. He pointed the gun at the sky and

attempted to fire three shots. The gun failed to discharge.

The officers repeated their order for Shedrick to drop his

gun. He again aimed the gun upward and pulled the trigger

three more times. Yet again the gun failed to fire. Shedrick

then opened up the cylinder of the revolver, and empty shell

casings fell out of the weapon. When this occurred, the police

gang-tackled and disarmed him. Officer Rutter called in a report

indicating that Shedrick was in custody.

Immediately after Shedrick was detained, the officers

were approached by Li Nguyen and Patricia Edwards. Nguyen

and Edwards stated that they had been in a van on their way to

work when Shedrick had appeared on the street and started

firing shots at their vehicle. One of the bullets struck the front

hood of the van. A second bullet penetrated the windshield and

traveled directly between Nguyen, who was driving, and

4

Edwards, who was in the front passenger seat. Nguyen and

Edwards reported that they went to a police station one block

away to report the shooting. When they returned to the spot

where the shooting had occurred, they witnessed the police

tackling Shedrick.

The police traced the gun in Shedrick’s possession, a

Smith & Wesson .357 caliber revolver, to an individual named

Aki Brickhouse. Brickhouse was charged with, and pled guilty

to, transferring the weapon to a convicted felon (Shedrick). He

also asserted that Shedrick had been selling crack cocaine on a

regular basis from a location in West Philadelphia and had

carried the Smith & Wesson while dealing drugs.

Shedrick was charged with being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). He signed a

written agreement with the Government, pleading guilty to that

charge and specifically admitting that (1) he possessed the

revolver, (2) he had a prior felony record,1 and (3) the revolver

had traveled in interstate commerce. However, Shedrick

vigorously contested any involvement in the van shooting (as

described by Nguyen and Edwards) and any drug dealing while

1

Shedrick pled guilty in October 2000 in the Philadelphia

Court of Common Pleas to possession with intent to deliver a

controlled substance (cocaine) and unlawful possession of an

unlicensed firearm.

5

armed with the revolver (as described by Brickhouse).

The plea agreement expressly stated that Shedrick’s

maximum potential sentence was ten years’ imprisonment. It

went on to note that the Government was permitted to “make

whatever sentencing recommendation as to imprisonment . . .

[it] deems appropriate.” Indeed, both parties were “free to argue

the applicability of any other provision of the Sentencing

Guidelines, including offense conduct, offense characteristics,

criminal history, adjustments and departures.”

The agreement also included a provision waiving not

only most appeals but also collateral attacks. It stated:

10. In exchange for the undertakings made by the

government in entering this plea agreement, the

defendant voluntarily and expressly waives all

rights to appeal or collaterally attack the

defendant’s conviction, sentence, or any other

matter relating to this prosecution, whether such

a right to appeal or collateral attack arises under

18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C.

§ 2255, or any other provision of law.

a. Notwithstanding the waiver

provision above, if the government

appeals from the sentence, then the

defendant may file a direct appeal

6

of his sentence.

b. If the government does not appeal,

then notwithstanding the waiver

provision set forth in paragraph 10

above, the defendant may file a

direct appeal but may raise only

claims that:

i. the defendant’s sentence

ex ce e d s th e s ta tu to ry

maximum; or

ii. the sentencing judge

erroneously departed

upward from the otherwise

applicable sentencing

guideline range.

The District Court conducted a plea hearing in November

2002. During Shedrick’s guilty plea colloquy, the Court

confirmed and reinforced the terms of the written plea

agreement. At the outset of the hearing, the Court stated:

And a plea agreement has been reached and it is

recorded in writing and will be filed certainly at

the end of this proceeding. But, most importantly,

although the plea agreement states all of the

7

agreements and understandings that exist between

the defendant, defense counsel, and the

Government, it does not recommend a set term of

incarceration as binding upon this Court.

Ultimately, the appropriate sentence would be left

to the exercise of the Court’s discretion based

upon information presented by both sides and

based upon a review of the Sentencing

Guidelines.

Later, the Court reiterated that the sentence would be left to its

discretion and that there were no “agreements with anyone about

what the right sentence should be.” Shedrick confirmed this

understanding. He also acknowledged that no other agreements

existed between himself and the Government except those

contained in the written plea agreement. The Court then made

clear to Shedrick that the maximum sentence in his case was ten

years’ incarceration. Shedrick did express some confusion

whether the facts alleged in the plea agreement included an

admission that he aimed or shot at police officers, prompting the

Court to clarify that he had only agreed to plead to the basic

facts of possessing the gun as a convicted felon and that any

other issues were left to the parties to argue at sentencing.

After Shedrick entered his plea, the Probation Office

prepared a presentence report (“PSR”). It calculated Shedrick’s

base offense level at 20. It then recommended a four-level

enhancement under U.S. Sentencing Guidelines Manual

8

§ 2K2.1(b)(5) due to Shedrick’s prior felony conviction for a

controlled substance offense and a three-level deduction under

U.S.S.G. § 3E1.1 for acceptance of responsibility. Those

adjustments resulted in an offense level of 21 that, combined

with a criminal history category of III, yielded a Sentencing

Guidelines range of 46 to 57 months.

Two weeks prior to sentencing, the Government filed a

memorandum with the District Court arguing that (1) Shedrick

was subject to a four-level enhancement for possessing a firearm

in connection with another felony offense (specifically, drug

dealing), and (2) the Court should depart upward eight levels

from the established Guidelines range because Shedrick had

discharged the weapon during the commission of his offense (by

shooting at a van occupied by two people). Shedrick objected.

The District Court held a sentencing hearing during

which the potential enhancement for possession in connection

with another felony offense, as well as the upward departure for

shooting at the van, were contested. The Government called

two witnesses to provide a factual basis to support the

enhancement and departure: Brickhouse and Nguyen.

Brickhouse testified that Shedrick had been selling

cocaine on a regular basis and that both Shedrick and his half-

brother, Tarik Robinson, had carried the Smith & Wesson

revolver while dealing drugs.

9

Nguyen testified that he and Patricia Edwards were

driving to work in a red van at approximately 5:40 a.m. on the

date of Shedrick’s arrest, when a black man holding a silver

revolver started shooting at them. The Government provided

photographs to the District Court showing that bullets struck the

left front hood of the van and the mid-windshield, passing

between the two passengers. Nguyen recounted going to a

police station to report the shooting, returning to where it had

occurred, and witnessing the police tackling the man who had

shot at the van.2

After Brickhouse’s and Nguyen’s testimony, Shedrick

testified to his version of events. He admitted that he had the

gun in his possession, but denied ever firing it. He also stated

that he did not know Brickhouse and had never seen Nguyen

prior to the sentencing hearing.

The Government and defense counsel then engaged in

extended arguments about the enhancement and departure. The

defense contended that there was insufficient evidence to show

that Shedrick either had been dealing drugs or had fired the

shots that struck Nguyen’s van. Thus, it was the defense’s

2

Because Shedrick was wearing a black shirt when arrested,

it is notable that Nguyen testified that the shooter had been

wearing a white shirt. When confronted by that inconsistency,

Nguyen admitted that he had focused on the gun and could have

made a mistake about the color of the shooter’s shirt.

10

position that Shedrick should receive a sentence within the

standard Guidelines range—46 to 57 months.

The Government, on the other hand, maintained that

because the evidence demonstrated that Shedrick had carried the

gun while dealing drugs (as testified to by Brickhouse) and that

Shedrick shot at the van (as testified to by Nguyen), both the

four-level enhancement and eight-level upward departure should

apply. It recommended to the Court a sentence of 100 months’

incarceration.3

At the close of the hearing, the District Court found that

Brickhouse and Nguyen were credible witnesses and thus

applied the four-level enhancement and eight-level upward

departure. Accordingly, the Court sentenced Shedrick to 96

months’ incarceration to be followed by three years of

supervised release.

The District Court appointed Shedrick new counsel for

purposes of appeal on July 31, 2003 (over five months after

sentencing), as Shedrick’s trial counsel had not filed an appeal.

On August 18, 2003 (approximately six months after

sentencing), his new counsel filed a motion for enlargement of

time to submit a notice of appeal nunc pro tunc. The District

Court denied the motion on August 27, 2003, and our Court

3

Application of both the four-level enhancement and eight-

level departure yielded a Guidelines range of 87 to 108 months.

11

dismissed the appeal as untimely on November 25, 2003.

Shedrick (through counsel) proceeded to file a 28 U.S.C. § 2255

habeas corpus petition in the District Court, which was denied.

He petitioned pro se our Court for a certificate of appealability,

which was granted for two issues: “whether counsel was

ineffective for failing to advise [Shedrick] of a possible upward

departure at sentencing; and whether counsel was ineffective for

filing an untimely appeal.” 4 Before we reach these issues,

however, we address the Government’s jurisdictional

contention.

II. Jurisdiction

According to the Government, the appeal and collateral

attack waiver contained in Shedrick’s written plea agreement

strips our jurisdiction. Not so. In United States v. Khattak, we

joined the courts of appeals for ten other circuits and held that

“[w]aivers of appeal, if entered into knowingly and voluntarily,

are valid, unless they work a miscarriage of justice.” 273 F.3d

557, 563 (3d Cir. 2001). Though Khattak went on to say that, if

a waiver is valid, “we have no jurisdiction to consider the merits

of [an] appeal,” id., we recently clarified that statement, see

United States v. Gwinnett, 483 F. 3d 200, 201–03 (3d Cir. 2007).

“[N]otwithstanding the statement in Khattak, this [C]ourt retains

jurisdiction over the appeal by a defendant who ha[s] signed an

4

We also appointed Shedrick new counsel to pursue this

appeal.

12

appellate waiver.” Id. at 203. This does not undermine the

practical bite of such waivers, however. For as stated in both

Khattak and Gwinnett, “we will not exercise [our] jurisdiction

to review the merits of [a defendant’s] appeal if we conclude

that she knowingly and voluntarily waived her right to appeal

unless the result would work a miscarriage of justice.” Id. at

203; Khattak, 273 F.3d 562–63. In short, we have jurisdiction

over this case, but will generally not exercise it absent

compelling reasons.

At first glance, it does appear that Shedrick waived his

right to appeal and collaterally attack his sentence in paragraph

10 of the plea agreement. However, the agreement goes on to

state that an appeal is preserved if any of three conditions

occurs. They are, to repeat, (1) a Government appeal, (2) a

sentence exceeding the statutory maximum, or (3) an erroneous

upward departure from the otherwise applicable Sentencing

Guidelines range.

It is undisputed that the first two predicates do not apply

here; the Government did not appeal, and Shedrick’s sentence

of 96 months’ imprisonment does not exceed the statutory

maximum of ten years. Shedrick maintains, however, that the

third condition applies. Specifically, he argues that the evidence

was not sufficient to support the District Court’s conclusion that

he discharged his gun, which was the basis of the Court’s eight-

13

level upward departure.5 He further argues that ineffective

assistance of counsel prevented him from timely appealing this

allegedly erroneous departure.

The Government, on the other hand, claims that Shedrick

“is not arguing that the Court erroneously granted an upward

departure, but merely is arguing that counsel was ineffective for

allegedly not informing him that the potential for an upward

departure existed.” Gov’t Br. at 28. We disagree. At its

essence, Shedrick’s argument is that, as a result of counsel’s

deficient performance, he (1) failed to understand the full effect

of his guilty plea as it related to upward departures, and (2)

failed timely to appeal the District Court’s upward departure,

which he was entitled to appeal under the express terms of the

plea agreement waiver. Enforcing a collateral-attack waiver

where constitutionally deficient lawyering prevented Shedrick

5

Shedrick’s brief mistakenly lumps together his enhancement

and his upward departure. An “enhancement” is an adjustment

to the base offense level as specifically provided by the

Guidelines, whereas an “upward departure” is a discretionary

adjustment to the Guidelines range once calculated. After

United States v. Booker, 543 U.S. 220 (2005), the difference is

now represented in the distinction between steps one and two as

set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006). While Shedrick has a right to appeal the District Court’s

upward departure under his plea waiver, the literal words of that

waiver make clear that he has no concomitant right to appeal the

enhancement.

14

from understanding his plea or from filing a direct appeal as

permitted by his plea agreement would result in a miscarriage of

justice.6 In this context, we will exercise our jurisdiction to

consider Shedrick’s ineffective-assistance-of-counsel claims.

6

Our decision in Khattak left the miscarriage-of-justice

determination open-ended, depending on various factors

identified in United States v. Teeter, 257 F.3d 14, 25–26 (1st

Cir. 2001), e.g., how clear and grave an error existed, the effect

of that error on the parties, and the extent to which the defendant

acquiesced in the error. Khattak, 273 F.3d at 563. We noted,

however, that the Seventh Circuit Court of Appeals has

specifically held that ineffective assistance of counsel qualifies

as a miscarriage of justice sufficient to overcome a waiver-of-

appeal provision. Id. at 562 (citing United States v. Joiner, 183

F.3d 635, 645 (7th Cir. 1999)); see also United States v.

Poindexter, No. 05-7635, ___ F.3d ___, 2007 WL 1845119, at

*2–8 (4th Cir. June 28, 2007); United States v. Tapp, No. 05-

30222, ___ F.3d ___, 2007 WL 1839277 (5th Cir. June 28,

2007); Campusano v. United States, 442 F.3d 770, 773–77(2d

Cir. 2006); Gomez-Diaz v. United States, 433 F.3d 788, 791–94

(11th Cir. 2005); United States v. Sandoval-Lopez, 409 F.3d

1193, 1195–99 (9th Cir. 2004); United States v. Garrett, 402

F.3d 1262, 1264–67 (10th Cir. 2005); Teeter, 257 F.3d at 25 n.9;

United States v. Hernandez, 242 F.3d 110, 113–14 (2d Cir.

2001); United States v. Jemison, 237 F.3d 911, 916 n.8 (7th Cir.

2001).

15

III. Merits

A. Ineffectiveness of Counsel for Failure to Advise

Shedrick first argues that he received ineffective

assistance of counsel during his plea process as a result of

counsel’s failure to advise him about a potential enhancement or

upward departure at sentencing. According to Shedrick, a

“fundamental consideration for [him] in determining whether

. . . to accept the guilty plea was the length of sentence he could

expect to receive.”

Under the two-part test of Strickland v. Washington, 466

U.S. 668, 687 (1984), Shedrick must demonstrate that his

attorney’s performance was deficient and that he was prejudiced

by the deficiency. That is, he must prove that counsel’s

performance “fell below an objective standard of

reasonableness,” id. at 688, and that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

Shedrick cannot satisfy these requirements. Indeed, we

have long held that an erroneous sentencing prediction by

counsel is not ineffective assistance of counsel where, as here,

an adequate plea hearing was conducted. See, e.g., United

States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (counsel not

ineffective for allegedly promising defendant a sentence of “no

more than 71 months” where defendant was advised in open-

16

court colloquy of potential maximum sentence and there were

no other promises regarding sentence); United States v. Mustafa,

238 F.3d 485, 492 (3d Cir. 2001) (“[A]ny alleged

misrepresentations that [defendant’s] former counsel may have

made regarding sentencing calculations were dispelled when

[defendant] was informed in open court that there was no

guarantee as to sentence, and that the court could sentence him

to the maximum.”); Masciola v. United States, 469 F.2d 1057,

1059 (3d Cir. 1972) (per curiam) (holding that “[a]n erroneous

prediction of a sentence by defendant’s counsel does not render

a guilty plea involuntary” where record demonstrates that a

proper plea colloquy took place during which defendant

acknowledged that he was aware of his maximum potential

sentence). As stated in Mustafa,

[w]e recognize that the maximum sentence

authorized by law is often so extraordinarily long

that few defendants other than “career criminals”

plead guilty with the expectation that the

maximum sentence applies to them. However, all

that the law requires is that the defendant be

informed of his/her exposure in pleading guilty.

The law does not require that a defendant be

given a reasonably accurate “best guess” as to

what his/her actual sentence will be; nor could it,

given the vagaries and variables of each

defendant’s circumstances and offending

behavior.

17

238 F.3d at 492 n.5.

This case falls well within well-established precedent:

defense counsel’s conjectures to his client about sentencing are

irrelevant where the written plea agreement and in-court guilty

plea colloquy clearly establish the defendant’s maximum

potential exposure and the sentencing court’s discretion.

Shedrick’s written, signed agreement stated that (1) he faced a

maximum potential sentence of ten years’ incarceration, (2) the

parties were free to argue any other sentencing issues (explicitly

including departures), (3) the District Court retained ultimate

discretion over the sentence, and (4) there were no other

agreements or promises regarding Shedrick’s potential sentence.

The District Court repeated these facts in open court,

starting the guilty plea colloquy by confirming with Shedrick

that

most importantly, although the plea agreement

states all of the agreements and understandings

that exist [among] the defendant, defense counsel,

and the Government, it does not recommend a set

term of incarceration as binding upon this Court.

Ultimately, the appropriate sentence would be left

to the exercise of the Court’s discretion based

upon information presented by both sides and

based upon a review of the Sentencing

Guidelines.

18

It then confirmed that Shedrick (1) had read, signed, and fully

understood the plea agreement, (2) understood that there were

no other promises regarding his potential sentence, and (3) had

admitted the facts of the crime. The Court further advised

Shedrick that the maximum potential sentence was ten years’

incarceration and repeated that it retained full discretion over the

ultimate sentence.

Here, any erroneous sentencing information allegedly

provided by defense counsel was corrected by the written plea

agreement and the detailed in-court plea colloquy, both of which

accurately stated Shedrick’s potential sentence. Given this

record, it is inconceivable that Shedrick did not know he

potentially faced a maximum ten-year prison term. In fact, his

allegations before our panel are flatly inconsistent with his

written, signed plea agreement, as well as his sworn, in-court

answers during his plea colloquy. Accordingly, the District

Court correctly denied Shedrick’s § 2255 motion as to his claim

that counsel was ineffective for failing to advise him of the

potential for an enhancement or upward departure.7

7

With regard to his failure-to-advise argument, Shedrick

relies heavily on one case—Meyers v. Gillis, 142 F.3d 664 (3d

Cir. 1998)—to advance his claim that bad sentencing

information provided by a defense lawyer equals ineffective

assistance of counsel. Meyers involved a habeas proceeding

from a state court guilty plea. The defendant had pled guilty to

second degree murder, which carried a mandatory life sentence

19

B. Ineffectiveness of Counsel for Failure to Appeal

Timely

Shedrick’s second contention is that his counsel was

ineffective for failing to file a timely appeal in this case. In

resolving this claim, we are guided by the Supreme Court’s

with no chance of parole. Nonetheless, the defendant was

misinformed by counsel that he would be eligible for parole in

seven years. At his guilty plea, the defendant was repeatedly

informed that he would become eligible for parole. Incredibly,

that advice was never corrected by the prosecutor or the state

trial court. We held that Meyer’s counsel was ineffective and

reversed his life sentence.

Meyers is readily distinguishable from the case before us.

The former involved review of a state court proceeding lacking

a detailed guilty plea agreement and the equivalent of a Rule 11

guilty plea colloquy. More importantly, the trial court in Meyers

failed to correct the erroneous sentencing information provided

on the record by defense counsel. In sharp contrast, the District

Court here corrected any alleged misperception by Shedrick

about his potential sentence by accurately informing him that his

maximum prison sentence was ten years and that the Court had

the discretion to sentence him up to that maximum. See

Scarbrough v. Johnson, 300 F.3d 302, 303–04, 306 (3d Cir.

2002) (distinguishing Meyers and finding no error where

defense counsel misinformed defendant that he was eligible for

parole but the court repeatedly and correctly informed defendant

that his penalty was an “automatic life sentence” with no chance

of parole).

20

decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000). There,

the Court addressed whether counsel may be found deficient for

failing to file a notice of appeal absent specific instruction from

the defendant not to do so. Because the question concerned

whether counsel’s representation was constitutionally defective,

the Court held that the two-part Strickland test governed its

inquiry. Id. at 476–77. Applying that standard to the particular

facts before it, the Court held that “counsel has a constitutionally

imposed duty to consult with the defendant about an appeal

when there is reason to think either (1) that a rational defendant

would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular

defendant reasonably demonstrated to counsel that he was

interested in appealing.” Id. at 480. The Court further

explained that it “employ[ed] the term ‘consult’ to convey a

specific meaning—advising the defendant about the advantages

and disadvantages of taking an appeal, and making a reasonable

effort to discover the defendant’s wishes.” Id. at 478.

Additionally, the Court instructed that courts undertaking this

inquiry, as with all ineffective-assistance claims, “take into

account all the information counsel knew or should have

known.” Id. at 480 (citing Strickland, 466 U.S. at 690).

With respect to Strickland’s prejudice prong, the Court

held that the harmless-error inquiry applied and that relief could

not be granted unless the defendant “demonstrate[s] that there

is a reasonable probability that, but for counsel’s deficient

failure to consult with him about an appeal, he would have

21

timely appealed.” Id. at 484. The Court did not identify any

determinative factors in this regard, but did stress that “evidence

that there were non-frivolous grounds for appeal or that the

defendant at issue promptly expressed a desire to appeal will

often be highly relevant.” Id. at 485.

A review of the record here reveals that Shedrick

“reasonably demonstrated to [his] counsel that he was interested

in appealing” by vehemently contesting the factual issues that

led to his upward departure throughout the District Court

proceedings. See Gov’t Br. at 18 (acknowledging that Shedrick

“hotly contested” the factual issues leading to his upward

departure both prior to and during his sentencing proceedings);

see also Appellant’s App. at 78–79 (demonstrating that

Shedrick, during his plea colloquy and prior to pleading guilty,

specifically ensured that he was not conceding any involvement

in the van shooting incident or any attempt to fire the weapon at

police). In this context, Shedrick’s counsel had “a

constitutionally-imposed duty to consult with” him concerning

a possible appeal. Flores-Ortega, 528 U.S. at 480; see id. at 481

(“We expect that courts evaluating the reasonableness of

counsel’s performance using the inquiry we have described will

find, in the vast majority of cases, that counsel had a duty to

consult with the defendant about an appeal.”).

The Government argues that Shedrick “makes no

allegation that he ever directed counsel to [file an appeal].”

Gov’t Br. at 58. Indeed, Shedrick’s habeas counsel wrote in his

22

brief to our Court that “[t]he record does not indicate that [trial]

counsel had any discussion with [Shedrick] regarding an appeal.

It is also unclear whether [Shedrick] specifically asked [his

counsel] to file an appeal.” Appellant’s Br. at 17. We are

uncertain why such comments were made in light of Shedrick’s

explicit statement in a letter to the District Judge, dated February

26, 2003 (before the appeal deadline had passed), that he had

asked his counsel to file an appeal on his behalf. Upon receipt

of this letter, the Judge’s chambers specifically informed

counsel for Shedrick of his desire to appeal by leaving a

message on counsel’s phone. Nevertheless, Shedrick’s counsel

took no action to effect an appeal.

In sum, the record clearly reflects Shedrick’s counsel’s

deficient representation. There is no indication in the record

that he consulted with Shedrick post-sentencing as required by

Roe-Ortega. In fact, Shedrick expressly wrote to the District

Judge that his counsel failed to consult with him during the

appeal period. Moreover, even if counsel did so, there is little

question he was ineffective in failing to file a timely appeal, as

Shedrick had stated that he wished to appeal while that option

was available. Under these circumstances, it is not necessary for

us to remand this case to the District Court for a factual finding

that counsel either did or did not consult with Shedrick; counsel

was deficient either way.8

8

Cf. Poindexter, 2007 WL 1845119, at *8 (remanding for

evidentiary hearing on whether the defendant instructed his

23

C. Remedy

Because Shedrick was prevented from filing a timely

appeal challenging his upward departure, we must figure out

what to do about it. The answer is not obvious, for the law

governing federal sentencing has changed significantly since the

time Shedrick was sentenced in 2003. We will not recount the

details of those changes here, as they have been amply described

and extensively examined in other decisions by our Court. See,

e.g., United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en

banc); United States v. Gunter, 462 F.3d 237 (3d Cir. 2006);

United States v. Cooper, 462 F.3d 237 (3d Cir. 2006); United

States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc). Suffice

it to say that the Guidelines, which were mandatory at the time

of Shedrick’s sentencing, are now only “effectively advisory.”

Booker, 543 U.S. at 245. This change in the law has required us

to deal with several problems for cases in which sentences were

imposed before Booker but were on appeal when that decision

came down.

Generally, we have adopted a broad remand policy for

cases on direct appeal from sentences imposed under the

mandatory Guidelines. See Davis, 407 F.3d at 164–66. But that

attorney to file a notice of appeal); Tapp, 2007 WL 1839277

(same); Campusano, 442 F.3d at 777 (same); Gomez-Diaz, 433

F.3d at 794 (same); Sandoval-Lopez, 409 F.3d at 1198–99

(same); Garrett, 402 F.3d at 1267 (same).

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policy is not necessarily applicable when it comes to cases

involving appellate waivers. Most relevant here, we held in

United States v. Lockett, 406 F.3d 207, 213–14 (3d Cir. 2005),

that Booker neither entitles a defendant to withdraw his guilty

plea nor to an unfettered right to re-sentencing under an

advisory scheme if he has waived his right to appellate review

as part of his plea bargain. “[W]here subsequent developments

in the law expand a right that a defendant has waived in a plea

agreement, that change does not make the plea involuntary or

unknowing or otherwise undo its binding nature.” Id. at 213.9

Lockett’s relevance to this case is somewhat unclear,

though. There, the defendant had “ask[ed] us to invalidate his

sentence because he did not know at the time he pleaded guilty

that the Supreme Court would later hold that the Sentencing

Guidelines are advisory.” Id. Here, in contrast, the record

demonstrates that Shedrick’s concern at the time of his sentence

was the propriety of his eight-level upward departure, as

explained in the previous section. That argument is specifically

permissible under the terms of Shedrick’s plea agreement and is

not affected by Lockett.

But despite its presence in all of the ineffective-

9

This is all the more true in habeas proceedings raising

Booker-related claims, as we have held that Booker’s effect is

not retroactive on habeas review. See Lloyd v. United States,

407 F.3d 608 (3d Cir. 2005).

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assistance-of-counsel discussion, Shedrick oddly does not make

an argument with respect to whether his upward departure was

proper. Instead, the only argument raised in his brief before us

with regard to the merits of the departure is that the District

Court (rather than a jury) found facts using a preponderance-of-

the-evidence (rather than beyond-a-reasonable-doubt) standard,

thus causing him to be sentenced higher than the statutory

maximum as construed in Blakely v. Washington, 542 U.S. 296,

303–04 (2004) (“[T]he relevant ‘statutory maximum’ is not the

maximum sentence a judge may impose after finding additional

facts, but the maximum he may impose without any additional

findings.”). This Blakely-based contention is a Sixth

Amendment argument that was waived as part of Shedrick’s

plea agreement and, under Lockett, is a nonstarter.

The above discussion aside, we consider it the better part

of prudence not to address the substance of Shedrick’s

underlying sentence. Instead we will follow the usual course in

cases of this nature: vacate and remand for re-entry of the initial

sentence so that there can be a timely appeal. See United States

v. Hadden, 475 F.3d 652, 661 n.8 (4th Cir. 2007) (citing United

States v. Torres-Otero, 232 F.3d 24, 30–31 (1st Cir. 2000);

United States v. Prado, 204 F.3d 843, 845 (8th Cir. 2000); In re

Goddard, 170 F.3d 435, 436 (4th Cir. 1999); United States v.

Peak, 992 F.2d 39, 42 (4th Cir. 1993)); see also Spence v.

United States, 68 Fed. Appx. 669, 676 (6th Cir. 2003); Garcia

v. United States, 278 F.3d 134, 138 (2d Cir. 2003). This will put

Shedrick in the same position he would have been in if he had

26

had effective assistance of counsel. Moreover, it will give him

the opportunity properly to raise the issue that he had previously

expressed a desire for this Court to review and which he

explicitly preserved in his plea agreement and colloquy: the

propriety of his upward departure.

IV. Conclusion

For the reasons explained above, we have jurisdiction

over this appeal involving ineffective-assistance-of-counsel

claims. We proceed to affirm the District Court’s denial of

Shedrick’s § 2255 petition concerning the claim that his counsel

was ineffective for failing to advise him as to the potential for

an enhancement or upward departure. However, Shedrick has

demonstrated that his counsel was ineffective under Roe-Ortega

for failing to assist him in his right to appeal. We thus reverse

the Court’s denial of Shedrick’s § 2255 petition on this claim.

In so doing, we vacate Shedrick’s sentence and remand to the

District Court with instructions to re-enter it, thus giving him the

opportunity timely to appeal on the narrow ground allowed by

his plea agreement.

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