                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-5-2004

USA v. Wright
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1280




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NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                   Case No: 04-1280

                           UNITED STATES OF AMERICA

                                              v.

                                    OMAR W RIGHT,

                                            Appellant


                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                              District Court No. 03-CR-00163
                    District Judge: The Honorable Gary L. Lancaster


                           Submitted Pursuant to LAR 34.1(a)
                                    October 1, 2004


              Before: RENDELL, FUENTES and SMITH, Circuit Judges

                                (Filed: October 5, 2004 )


                              OPINION OF THE COURT


SMITH, Circuit Judge.

      Omar Wright was convicted of certain firearm offenses and sentenced to 57

months imprisonment. He appeals from the sentence, contending that the District Court

erred in calculating his guideline range by considering hearsay evidence of a burglary
offense that occurred when he was fifteen years of age. We find no error and will affirm

the judgment of the District Court. 1

                                             I.

       Wright pled guilty to two firearm offenses in late September 2003. A probation

officer prepared a pre-sentence investigation report (“PSR”) which computed Wright’s

offense level and criminal history category based, inter alia, on a burglary offense

committed when Wright was 15 years of age. The PSR indicated that Wright and another

individual had burglarized a home and had assaulted the victim, causing serious physical

injuries. According to the PSR, Wright was adjudicated as a youthful offender and

sentenced to one to three years imprisonment.

       Wright objected to the PSR on several grounds, including the probation officer’s

consideration of his burglary conviction in computing his total offense level under United

States Sentencing Guideline (“U.S.S.G.”) § 2K2.1(a) and his criminal history category

under U.S.S.G. § 4A1.1(a). According to Wright, his burglary conviction could not be

considered because he was fifteen at the time, and sentences imposed for an offense

committed prior to the age of eighteen should not be counted unless they “resulted from

an adult conviction.” U.S.S.G. §4A1.1, commentary, applic. note 1. Wright further noted

that his “youthful offender” adjudication resulted in his conviction being “deemed




  1
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                             2
vacated.” Wright pointed out that the court records had been sealed, and that the

probation officer had been unable to adduce any original documentation pertaining to his

burglary conviction. The probation officer refused to modify her PSR, however,

explaining that the assessment of criminal history points for this burglary offense was

consistent with New York law as applied by the Second Circuit in United States v.

Driskell, 277 F.3d 150 (2d Cir. 2002), and United States v. Matthews, 205 F.3d 544 (2d

Cir. 2000).

       Prior to sentencing, Wright urged the District Court to calculate his guideline

range without regard to his burglary offense. He argued that his conviction had not

resulted from an adult conviction. As support for his contention, Wright relied upon a

“Certificate of Disposition - Youthful Offender Adjudication” obtained from the Supreme

Court of the State of New York stating that “a youthful offender adjudication is not a

judgment of conviction for a crime or any other offense.”

       The District Court rejected Wright’s argument. It relied on the Second Circuit’s

decision in Driskell, 277 F.3d at 155, and explained that under New York law the

burglary conviction “would [have] had to have been an adult court conviction in order for

this youthful offender status to even come into play. . . . Otherwise, [Wright] would have

been deemed a juvenile.” Because Wright’s burglary conviction constituted a crime of

violence, his base offense level was assessed at 20 under U.S.S.G. § 2K2.1(a)(4)(A) and

adjusted upward to 26 based on the fact that the offense involved 41 firearms. A three



                                             3
point reduction for acceptance of responsibility resulted in a total offense level of 23. By

factoring his burglary offense in the computation of his criminal history category,

Wright’s criminal history category increased from II to III, and his guideline range rose

from 51 - 63 months to 57 - 71 months. The District Court sentenced Wright to 57

months, the lower end of the applicable guideline range.

       Wright appeals, challenging the District Court’s inclusion of his burglary offense

in the calculation of his guideline range. Relying on the lack of original documentation

regarding his burglary offense, Wright argues that the Court erred in admitting hearsay

evidence regarding his burglary conviction. We have “plenary review of questions of

law, such as the admissibility of hearsay statements at sentencing.” United States v.

Brothers, 75 F.3d 845, 848 (3d Cir. 1996).

                                             II.

       Wright does not directly challenge, for good reason, the District Court’s

consideration of his burglary offense in calculating his offense level and criminal history

category. As the Second Circuit explained in Driskell, the youthful offender statute is

“clear that the defendant is convicted as an adult and only later may, in the court’s

discretion, have that conviction vacated and replaced by a youthful offender finding.”

277 F.3d at 155. Following Driskell, the Second Circuit in United States v. Cuello, 357

F.3d 162 (2d Cir. 2004), concluded that a youthful offender adjudication was

appropriately considered as a conviction for purposes of computing a defendant’s total



                                              4
offense level.

       Rather, Wright contends that the District Court erred in admitting hearsay evidence

regarding his youthful offender adjudication. He acknowledges that our caselaw and

U.S.S.G. § 6A1.3(a) allow a sentencing court to consider hearsay evidence, but points out

that such evidence must be reliable. See United States v. McGlory, 968 F.2d 309, 347 (3d

Cir. 1992). Here, Wright contends that the evidence adduced by the probation officer was

not reliable inasmuch as she did not have a certified record of his conviction. He points

out that the probation officer relied on “hearsay in the form of part of a draft of some

report done by some unidentified personnel of the Bronx County probation office” and a

New York State rap sheet. Because in his view this evidence was unreliable hearsay,

Wright asserts that the government failed to meet its burden of proving by a

preponderance of the evidence that his youthful offender adjudication constituted an adult

conviction.

       Wright is correct that we have sanctioned the use of hearsay evidence at

sentencing, provided it has “sufficient indicia of reliability to justify the court’s reliance

upon it.” Brothers, 75 F.3d at 846. In Brothers, we concluded that the District Court

erred at sentencing because the drug quantity attributed to the defendant was based on

unreliable hearsay evidence which directly conflicted with sworn testimony.

       This case is factually distinguishable from Brothers because Wright’s youthful

offender adjudication is not the subject of conflicting evidence. Indeed, all of the



                                               5
evidence of record indicates that Wright’s burglary offense concluded with a youthful

offender adjudication in 1990 which resulted in a sentence of one to three years of

imprisonment. Even the Certificate of Disposition produced by Wright confirms that the

records of the Supreme Court of the State of New York, Bronx County, reflect that

Wright was charged with burglary and adjudicated a youthful offender. Thus, we

conclude that the evidence marshaled by the probation officer was reliable and

appropriately considered by the District Court.

       We are not troubled by the fact that the probation officer did not produce a

certified record of Wright’s youthful offender adjudication. This Court does not require

certified copies of judgments of conviction in every case. See United States v. Watkins,

54 F.3d 1163, 168 (3d Cir. 1995) (rejecting defendant’s argument for per se rule requiring

certified copies of the judgment of conviction). And New York law provides that even

though the official records regarding the adjudication are confidential, such records are

accessible by the New York probation department and may be shared, as they were in this

instance, with other state and federal law enforcement and judicial agencies. See

Matthews, 205 F.3d at 547-48 (citing N.Y. Crim. Proc. Law § 390.50.4 (McKinney

1994)).

       It is telling that Wright’s objection to the PSR did not contest the fact that he was

adjudicated a youthful offender at the age of fifteen after burglarizing a home and

seriously injuring an individual. Nor did he dispute that he was sentenced to one to three



                                              6
years of imprisonment and actually served that time. His challenge to the PSR concerned

only a legal issue: whether his youthful offender adjudication constituted an adult

conviction for purposes of U.S.S.G. § 4A1.1. Thus, the District Court was entitled to rely

on the facts set forth in his PSR that were not challenged. See Fed. R. Crim. P.

32(i)(3)(A) (“At sentencing, the court . . . may accept any undisputed portion of the

presentence report as a finding of fact”); Watkins, 54 F.3d at 167. We conclude that there

was sufficient evidence in the record to meet the government’s burden of proof with

respect to Wright’s burglary conviction.

       We will affirm the judgment of the District Court.
