United States v. Wright , 83 F. App'x 432 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-10-2003
USA v. Wright
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4309
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-4309
UNITED STATES OF AMERICA
v.
KEVIN WRIGHT,
a/k/a HERB
Kevin Wright,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 02-cr-00467-2)
District Judge: Hon. Garrett E. Brown Jr.
Submitted Under Third Circuit LAR 34.1(a)
December 1, 2003
Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges
(Filed December 10, 2003)
OPINION OF THE COURT
_____________________
* Hon. Daniel M . Friedman, United States Senior Circuit Judge for the Federal Circuit,
sitting by designation.
SLOVITER, Circuit Judge.
I.
Appellant Kevin Wright pled guilty to conspiracy to distribute and possess with
intent to distribute heroin in violation of 21 U.S.C. §§ 841 (a)(1) and 846. In Wright’s
Presentence Investigation (PSI) report, the Probation Office determined that Wright
qualified as a “career criminal” under U.S.S.G. § 4B1.1 because he had been convicted
for “two separate, unrelated counts” of manufacturing/delivering and possession with the
intent to manufacture/deliver a controlled substance in February and March 1996. The
PSI also listed a July 1995 “violation of the uniform drug act” in Pennsylvania state court
for possession of heroin and marijuana, which resulted in a 30-days sentence, and a 1997
conviction for contempt of court. Based on his status as a career criminal, the PSI
increased his offense level from 19 to 32 and his criminal history category from V to VI.
After factoring in a three-level adjustment for acceptance of responsibility, the PSI
calculated Wright’s guideline range to be 151 to 188 months of imprisonment.
Wright filed for a downward departure pursuant to U.S.S.G. § 4A1.3, arguing,
inter alia, that his criminal history score and his classification as a career offender over-
represented the seriousness of his criminal history and his likelihood to recidivate. The
District Court denied Wright’s motion for downward departure and sentenced him to a
term of imprisonment of 151 months, to be followed by three years of supervised release.
Wright wrote to the sentencing judge to notify him of his intention to appeal, and
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requested the appointment of new counsel for the appeal. Wright filed a notice of appeal
pro se, and defense counsel filed a motion to withdraw as counsel. The Clerk of this
Court denied the motion and instructed counsel to file a brief in support of his motion
pursuant to Anders v. California, 386 U.S. 738 (1967), if he found Wright’s appeal to be
wholly frivolous. Defense counsel submitted a brief, invoking Anders and stating that
Wright’s argument that his two prior convictions arose out of a common scheme was
“without merit.” Defense counsel also argued that the District Court clearly erred in
finding that Wright had three prior felonies, instead of two, and that the District Court
misconstrued its authority to grant a downward departure. Because the brief, in part,
invoked Anders, Wright was permitted to submit a pro se brief.
The pro se brief is limited to Wright’s argument that his two past felonies should
have been counted as one because they were based on a common scheme. We agree that
this argument is frivolous, and need not discuss it. We will instead treat the counseled
brief as a merits brief. To the extent that Wright wishes to pursue his claim that he was
denied the effective assistance of counsel at sentencing, Wright should pursue such a
claim through a collateral proceeding under 28 U.S.C. §2255 where a trial court may
develop a factual basis for the claim. United States v. Haywood, 155 F.3d 674, 678 (3d
Cir. 1998).
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
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Defense counsel contends that the District Court clearly erred in characterizing
Wright’s July 1995 simple drug possession conviction as a felony, which affected the
court’s decision not to grant Wright a downward departure. We review the District
Court’s findings of fact for clear error. United States v. Beckett, 208 F.3d 140, 147 (3d
Cir. 2000). Counsel argues that the District Court erred in stating that Wright had three
prior felony convictions. In discussing whether Wright qualified as a career criminal, the
District Court first stated that W right’s criminal history started with “a drug conviction,”
referring to Wright’s July 1995 possession offense. When defense counsel immediately
clarified that Wright’s July 1995 conviction did not qualify as “a predicate offense” or
prior drug felony for career criminal status, the District Court did not disagree, but
responded, “All right, but it is definitely a drug offense . . . .” Gov’t Supp. App. at 29.
Despite defense counsel’s correction, the District Court later summarized Wright’s
criminal history as including “three felony drug convictions in Pennsylvania courts,”
demonstrating that Wright “doesn’t seem to learn” and “demonstrat[ing] a total lack of
regard for the law or seriousness of any pending drug charges.” Id. at 38 (emphasis
added). In sum, Wright “me[t] the criteria for [a] career offender.” Id. The District
Court then increased Wright’s penalties based on the career offender provision.
The Government responds that even if the District Court counted Wright’s July
1995 drug possession conviction as a prior drug felony, it would not have been a clear
error because the PSI does not state if that conviction was a felony or misdemeanor. We
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need not decide that issue because we agree with the Government that, even if the District
Court erred in this respect, the error was immaterial because the alleged “mislabeling of
the offense as a felony did not affect the District Court’s assessment of the seriousness of
the offense” or cause Wright any prejudice. Govt’s Br. at 24, 25. In considering
Wright’s motion for downward departure, the District Court reviewed all of Wright’s past
offenses: the 1995 drug possession conviction, two drug distribution convictions in
February and March 1996, a contempt of court conviction in 1997, an arrest that was later
dismissed, and the instant drug conspiracy offense in 2002. The District Court then stated
the following:
Is this really a career offender, or is this somebody who got in trouble in ‘97,
served his time and there’s no prior and subsequent record until what we have
now. . .
The Congress was very concerned about career offenders. We have
someone who fits linguistically as a career offender, the question is whether I
should depart because he’s outside the heartland, and because although he
technically falls as a career offender he really should not be considered as such.
The clear answer is, no. We have somebody here who has not learned. Somebody
who, as I said, has been engaged in sale, engaged in distribution on a rather
substantial level, goes away to prison, comes back out again, doesn’t learn, does it
all over again while he’s on parole. He has supplied large quantities of heroin to
co-conspirators for sale in Trenton. Through the use of interceptive cellular
telephone calls and surveillance, apparently engaged in sales of narcotics. Three
felony drug convictions in Pennsylvania courts, as noted before, within a short
period of time, followed by prison. Doesn’t seem to learn.
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Behavior in the last two, as counsel noted, including the street from which
he sold the heroin, nearly identical. He’s obviously on pre-trial bail and release
during the second and third arrests. Thus, demonstrating a total lack of regard for
the law or the seriousness of any pending drug charges.
He meets the criteria for career offender. He was on parole at the time of
this arrest. He goes right back in again. This is exactly what Congress was
concerned about. It’s clear to me that the – not only linguistically, but factually on
this record he is career offender. He is a drug dealer.
I’m aware that this bumps him up about 12 and a half years, but that’s what
the Congress intended. It would be an abuse of my discretion to rule otherwise.
Motion [for downward departure] denied.
App. at 34, 37-38.
The 1995 conviction formed part of the recidivist criminal history from which the
District Court concluded that Wright “has not learned.” The District Court described a
defendant whose repeated criminal acts demonstrate “a total lack of regard for the law or
the seriousness of any pending drug charges.” The 1995 drug conviction represents one
offense in a relatively continuous criminal history from 1995 to 2002 with which the
District Court was concerned. Even more significant is that W right was concededly
convicted of two predicate drug offenses in 1996, one in February and the other in March.
They were five or six weeks apart, they were separated by an arrest, they resulted in
slightly different sentences, and the sentences ran consecutively, not concurrently. They
thus meet the requirement for designation of Wright as a career offender.
Finally, we reject defense counsel’s argument that the District Court
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misapprehended its authority to depart downward under § 4A1.3 when a defendant’s
criminal history score overstates the seriousness of his criminal history or his likelihood
of recidivism.1 Defense counsel focuses upon the following statement by the District
Court when increasing Wright’s offense level based on his career criminal status: “I’m
aware that this bumps him up from about six years to a minimum of about 12 and a half
years, but that’s what the Congress intended. It would be an abuse of my discretion to
rule otherwise.” App. at 10. The totality of the District Court’s comments during the
sentencing hearing, excerpted in the prior section, reflects the District Court’s conclusion
that W right was the type of defendant that fell within the career offender provision.
There is nothing that suggests that the District Court was under the impression that it
lacked the legal authority to depart downward. Instead, the Court’s remarks reflect its
belief that it would have been an abuse of discretion to grant a downward departure under
the facts of W right’s case. Because the District Court made a discretionary refusal to
depart downwards, we may not review its decision. United States v. Stevens, 223 F.3d
239, 247 (3d Cir. 2000).
III.
We will therefore affirm the judgment of sentence and grant counsel’s motion to
withdraw.
1
U.S.S.G. § 4A1.3 authorizes a sentencing court to depart downward if “the court
concludes that a defendant's criminal history category significantly over-represents the
seriousness of a defendant's criminal history or the likelihood that the defendant will
commit further crimes.”
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge
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