Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit

5-17-2002 USA v. Davis Precedential or Non-Precedential: Non-Precedential Docket No. 01-2818

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "USA v. Davis" (2002). 2002 Decisions. Paper 282. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/282

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NOT PRECEDENTIAL THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 01-2818 ___________

UNITED STATES OF AMERICA vs. JOHN DAVIS a/k/a John Davis-Bey Appellant.

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 99-cr-00638) District Judge: The Honorable Harvey Bartle, III ___________ Submitted Under Third Circuit LAR 34.1(a) April 19, 2002

BEFORE: NYGAARD, AMBRO, and KRAVITCH, Circuit Judges.

(Filed May 17, 2002) ___________ OPINION OF THE COURT ___________

NYGAARD, Circuit Judge.

Appellant, John Davis, argues on appeal that his counsel was ineffective for failing to request a downward adjustment under U.S.S.G 3B1.3. He argues that he was a minor participant in the conspiracy. Appellant also argues that his counsel was ineffective for failing to object to a two-level upward adjustment for the possession and use of a special skill. Because both of these arguments raise issues of fact that must first be resolved by the District Court, we conclude that neither issue is ripe for appeal.

Government of the Virgin Islands v. Forte, 806 F.2d 73, (3d Cir. 1986) (An appellant may not raise ineffective assistance of counsel in a direct appeal when there is an insufficient record for appellate review.) Accordingly, we will dismiss the appeal. _________________________

TO THE CLERK: Please file the foregoing opinion.

/s/ Richard L. Nygaard Circuit Judge