ALD-262 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 18-1536 ____________

IN RE: ANDRE COOPER, Petitioner

__________________________________ On a Petition for Writ of Mandamus from the United States District Court for the Eastern District of Pennsylvania (Related to D.C. Crim. No. 2-01-cr-00512-005) __________________________________

Submitted Pursuant to Fed. R. App. Pro. 21 July 12, 2018

Before: MCKEE, VANASKIE and SCIRICA, Circuit Judges

(Opinion filed: October 18, 2018) ___________

OPINION * ___________

PER CURIAM

Petitioner Andre Cooper petitions for a writ of mandamus. For the reasons that

follow, we will deny the petition.

Cooper was convicted, following a jury trial in the United States District Court for

the Eastern District of Pennsylvania, of participation in the affairs of an interstate

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. enterprise through a pattern of racketeering activity (Count 8); conspiracy to murder in

aid of racketeering (Count 9); the murder of Tracey Saunders in aid of racketeering

(Count 10); tampering with witness Tracey Saunders by murder (Count 11); conspiracy

to murder Antonio Rykard in aid of racketeering (Count 14); the murder of Antonio

Rykard in aid of racketeering (Count 15); conspiracy to murder Karriem Washington in

aid of racketeering (Count 21); the murder of Karriem Washington in aid of racketeering

(Count 22); using a firearm during and in relation to a crime of violence (Count 23);

conspiracy to distribute more than five kilograms of cocaine (Count 25); conspiracy to

distribute more than five kilograms of cocaine in a school zone (Count 26); possession of

cocaine with the intent to distribute (Counts 29, 31); possessing a firearm in furtherance

of a drug trafficking crime, and using and carrying a firearm during and in relation to a

drug trafficking crime (Counts 30, 32); and distribution of cocaine (Counts 42 and 43).

On July 27, 2006, the District Court sentenced Cooper as follows: life

imprisonment with no possibility for parole on Counts 10, 15, and 22 (the murder

counts), the sentences to run consecutively to each other, N.T., 7/27/06, at 24-25; a term

of imprisonment of 10 years on Count 23, the sentence to run consecutively “to each of

the life imprisonment sentences” on Counts 10, 15 and 22, id. at 25; a term of

imprisonment of 10 years on Count 30, the sentence to run consecutively “to each of”

Counts 10, 15, 22 and 23, id. at 26; a term of imprisonment of 10 years on Count 32, the

sentence to run consecutively “to each of” Counts 10, 15, 22, 23 and 30, id.; and, as to

“the remaining counts,” a term of imprisonment of 10 years to “run concurrently with the

2 life imprisonment sentence,” id. at 25. Those remaining counts would be 8, 9, 11, 14, 21,

25, 26, 29, 31, 42, and 43.

Cooper appealed the criminal judgment and we affirmed, see United States v.

Cooper,

(3d Cir. 2009). In 2010, Cooper filed a motion to vacate

sentence,

. The District Court denied relief on the merits, and we denied

Cooper’s request for a certificate of appealability. We have also denied several

applications by Cooper for leave to file second or successive § 2255 motions.

In 2016, Cooper filed a Rule 60(b)(6) motion, contending that the District Court

failed to sentence him on Counts 8 and 11. The District Court denied the Rule 60 motion

and we denied Cooper’s request for a certificate of appealability.

Cooper now has filed a petition for writ of mandamus claiming, as he did in his

Rule 60 motion, that the District Court failed to sentence him on Count 8, participation in

the affairs of an interstate enterprise through a pattern of racketeering activity, in

violation of

(c); and Count 11 (tampering with witness Tracey Saunders

by murder, in violation of

, 1111(a), 1512(a)(1)(A) and (C), and

1512(a)(2)(A)). He seeks to be sentenced by the District Court on these counts;

otherwise, he argues, they should be dismissed. Petition, at 1-2. He further argues that

the error is a fundamental one, and that, having unsuccessfully moved for relief under

Rule 60, he now has no other adequate means for obtaining relief. Cooper has attached a

copy of the sentencing transcript to his mandamus petition, which he says supports his

argument.

3 We will deny the petition for writ of mandamus. Our jurisdiction derives from

, which grants us the power to “issue all writs necessary or appropriate in

aid of (our) . . . jurisdiction and agreeable to the usages and principles of law.” A writ of

mandamus is an extreme remedy that we grant only in extraordinary situations. See Kerr

v. United States Dist. Court,

(1976). To justify the use of this

extraordinary remedy, a petitioner must show both a clear and indisputable right to the

writ and that he has no other adequate means to obtain the relief desired. See Haines v.

Liggett Group Inc.,

(3d Cir. 1992).

We have reviewed the sentencing transcript but do not agree that it supports

Cooper’s argument that the District Court did not sentence him on Counts 8 and 11. On

the contrary, the transcript indicates that, after sentencing Cooper on certain specific

counts to consecutive sentences of varying lengths, the District Court sentenced him on

“the remaining counts” to concurrent terms of imprisonment of 10 years, id. at 25. This

reference to the remaining counts should include Counts 8 and 11, and Cooper does not

argue otherwise. Accordingly, insofar as the transcript does not provide clear factual

support for his assertion that he was not sentenced on Counts 8 and 11, Cooper has not

shown both a clear and indisputable right to the writ.

We note that, although a written copy of the criminal Judgment has not been

provided with Cooper’s petition, the purported contents of the Judgment were transcribed

on the criminal docket by court staff, see Docket Entry No. 911. The transcribed contents

state that Cooper’s sentence on each of Counts 8 and 11 is a concurrent term of life

imprisonment. This difference in the sentences might suggest either that there was a

4 transcription error in recording the contents of the criminal Judgment, or that there is an

actual conflict between the sentence imposed on the record in open court and the written

Judgment, see generally United States v. Faulks,

(3d Cir. 2000)

(“[W]hen the two sentences are in conflict, the oral pronouncement [in the defendant’s

presence] prevails over the written judgment.”). Either way, the record does not support

an assertion that Cooper was not sentenced at all on Counts 8 and 11. Moreover, we are

satisfied that this issue could have been addressed on direct appeal and thus that there

were other adequate means to obtain the relief desired. Mandamus, with its “exceedingly

narrow” scope of review, is not a substitute for an appeal. In re: Chambers Development

Co., Inc.,

(3d Cir. 1998) (quoting In re: Ford Motor Co.,

(3d Cir. 1997)).

For the foregoing reasons, we will deny the petition for a writ of mandamus.

5