                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 07-1909
                                    ____________

                          UNITED STATES OF AMERICA

                                            v.

                                 ROBERT WRIGHT,
                                             Appellant
                                   ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Crim. No. 05-cr-00619-001)
                    District Judge: Honorable Cynthia M. Rufe
                                   ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 15, 2011
                                   ____________

            Before: RENDELL, BARRY and CHAGARES, Circuit Judges

                           (Opinion Filed: March 22, 2011)
                                   ____________

                                      OPINION
                                    ____________

BARRY, Circuit Judge

      Robert Wright pled guilty to several counts of cocaine-related crimes, and the

District Court sentenced him to 235 months of imprisonment. He raises procedural and
                                           1
substantive challenges to his sentence. We will affirm.

I.     BACKGROUND

       On October 26, 2005, after an extensive undercover and surveillance operation, the

government indicted Robert Wright and seven co-defendants for drug-related crimes. The

government filed a superseding indictment on December 7, 2005, and on December 27,

2005, it filed an Information Charging Prior Offense Under Title 21 U.S.C. § 851

(“Information”) to give notice “of the defendant‟s prior convictions for purposes of

enhanced sentencing, pursuant to Title 21, United States Code, Section 851.” (R. at 23.)

       In the Information, the government listed Wright‟s five prior convictions in the

Pennsylvania courts for manufacture, delivery, or possession with intent to manufacture

or deliver a controlled substance, each of which was a felony. The Information stated that

Wright was adjudged guilty of one of these offenses on January 7, 1993 and of the other

four offenses on May 9, 1996.1 It concluded with a statement that “the government

respectfully gives notice that the defendant will be subject, upon conviction of a violation

of Title 21, United States Code, Section 841, to the enhanced penalties set forth in Title

21, United States Code, Section 841(b)(1)(C).” (Id. at 24.)

       The Information included the typed names of the United States Attorney and

Assistant United States Attorney (“AUSA”), but did not include a “/s” or similar symbol

before either name or the AUSA‟s address, email address, or telephone number. The


       1
           The revised Presentence Investigation Report (“PSR”) also included these five
crimes.
                                              2
certificate of service accompanying the Information “did not indicate that it had been

filed electronically” and “did not state that it was available for viewing and downloading

from the ECF system.” (Appellant‟s Br. at 12-13.) The AUSA did state, however, that she

“certif[ied] that [she has] served or caused to be served a copy of the foregoing

[Information] by electronic service upon” defense counsel.

       Wright pled guilty on October 13, 2006 to numerous counts of knowing and

intentional distribution of cocaine, as well as aiding and abetting in the knowing and

intentional distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and

18 U.S.C. § 2. Based on the amount of cocaine for which Wright was responsible, the

PSR listed his base offense level as 26. The PSR also stated, however, that he was a

career offender under U.S.S.G. § 4B1.1 because he had at least two, and in fact five, prior

adult convictions for the “[m]anufacture/delivery /possession [sic] with intent to

manufacture or deliver a controlled substance.” (PSR at 11-13.) As a career offender, his

offense level increased to 34. He received a three-level downward adjustment for

acceptance of responsibility, which resulted in a total offense level of 31 and a sentencing

guidelines range of 188 to 235 months.

       At the sentencing hearing on March 23, 2007, Wright acknowledged that he read

the PSR and reviewed it with defense counsel. The District Court discussed at some

length, but ultimately rejected, Wright‟s argument that the four convictions dated May 9,

1996 were related and should be consolidated for the calculation of his criminal history


                                             3
points. The Court also denied Wright‟s motion for a downward departure under U.S.S.G.

§ 4A1.3, which gives a district court the discretion to grant a downward departure from

the guidelines calculation if “the defendant‟s criminal history category substantially over-

represents the seriousness of the defendant‟s criminal history or the likelihood that the

defendant will commit other crimes.” U.S.S.G. § 4A1.3(b)(1).

       In lengthy discussions during the hearing regarding the effect that Wright‟s prior

convictions should have on the calculation of his guidelines range, there was no

suggestion that the PSR or the Information were factually incorrect as to Wright‟s prior

convictions. Defense counsel stated that “we know the prior convictions exist,” and

raised no other relevant objections to the PSR. (R. at 80; see id. at 101-02, 105.) Wright

spoke directly to the District Court twice during the sentencing hearing, and it appears

from the transcript that he interrupted his counsel on one of those occasions and asked to

speak directly to the Court, which the Court allowed. He did not ask the Court to correct

any factual errors in his criminal history but rather said, “I‟m not trying to minimize my

criminal history, I mean, I was dealing, I – I admit to that to the Court on the record. I

admit I was wrong and I was convicted of it.” (Id. at 111.)

       The District Court observed that it “didn‟t hear any respect for the law [from

Wright] and [it] didn‟t hear anything about the harm that [Wright‟s] crimes do to the

community.” (Id. at 114.) The Court believed that Wright “need[ed] to do more before [he

was] ready to be rehabilitated” and concluded that Wright‟s time as a fugitive


                                              4
demonstrated his lack of respect for the law. (Id. at 115.) The Court was also concerned

about protecting the community from Wright because he did not “know enough to get out

of prison and not do it again.” (Id. at 116.)

       Before imposing sentence, the District Court acknowledged that Wright shared his

drug profits with friends and family, as well as the fact that he learned to sell drugs at a

young age. The Court noted, however, that he was “someone who has escalated their drug

activity to the big time” and that although judges in Wright‟s previous criminal cases

“have tried to do right by Mr. Wright,” he continued to sell drugs. (Id. at 140.) The Court

did not “trust [that Wright was] ready to be deterred from committing additional crime,

[was] ready to start respecting the law, [was] ready to be rehabilitated.” (Id. at 141.)

       The District Court sentenced Wright at the top of his guidelines range, to 235

months of imprisonment. On appeal, he claims that his sentence was procedurally and

substantively unreasonable.

II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. A district

court must engage in a three-step analysis to determine the appropriate sentence to impose

on a defendant. It must first correctly calculate the guidelines range and then rule on any

motions for a departure from that range. United States v. Lopez-Reyes, 589 F.3d 667, 670

(3d Cir. 2009). It must then meaningfully consider the relevant factors in 18 U.S.C. §


                                                5
3553(a) and exercise its discretion to set the sentence. Id.

       When reviewing a sentence on appeal, we “first ensure that the district court

committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51 (2007).

Wright argues that the District Court should have stricken the Information and not applied

the career offender guideline. He also contends that the Court violated 21 U.S.C. §

851(b) when it failed to ask him about the prior offenses in the Information before

imposing sentence. He did not raise either of these arguments before the District Court,

and we therefore review for plain error. United States v. Couch, 291 F.3d 251, 252 (3d

Cir. 2002). For Wright to succeed on these claims, he must show that there was (1) an

error that was (2) plain, e.g., clear or obvious, that (3) also affected his substantial rights.

Johnson v. United States, 520 U.S. 461, 467 (1997). If he makes that showing, we may

exercise our discretion to grant relief, but we may only do so if “the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation

marks and punctuation omitted).

       Wright argues further that the 235-month sentence was substantively unreasonable.

We “consider the substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard.” Gall, 552 U.S. at 51. We must affirm “[a]s long as a sentence falls

within the broad range of possible sentences that can be considered reasonable in light of

the § 3553(a) factors.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).




                                                6
III.   ANALYSIS

       A.     Compliance with 21 U.S.C. § 851

       A defendant may not be subject to “increased punishment by reason of one or more

prior convictions” unless the government “files an information with the court (and serves

a copy of such information on the person or counsel for the person) stating in writing the

previous convictions to be relied upon.” 21 U.S.C. § 851(a)(1). After conviction but

before imposing a sentence, the court “shall . . . inquire of the person with respect to

whom the information was filed whether he affirms or denies that he has been previously

convicted as alleged in the information, and shall inform him that any challenge to a prior

conviction which is not made before sentence is imposed may not thereafter be raised to

attack the sentence.” 21 U.S.C. § 851(b).

              1.     Sufficiency of the Information Under § 851(a)

       Wright claims that the Information was deficient, as well as improperly filed and

served, and that the District Court should have stricken it and declined to apply the career

offender status to Wright. He argues that the Information violated Federal Rule of Civil

Procedure 11(a) because it did not include the AUSA‟s address, email address, and

telephone number, and that the certificate of service violated Eastern District of

Pennsylvania Local Rule 5.1.2.9(a) because “[i]t did not indicate that it had been

electronically filed; it did not set forth [the AUSA‟s] address and telephone number; and

it did not include a „s/‟ before her name on the signature line.” (Appellant‟s Br. at 11.) He


                                              7
contends as well that service of the Information was defective because “[t]he Certificate

of Service did not indicate that it had been filed electronically” and “did not state that it

was available for viewing and downloading from the ECF system.” (Id. at 12-13.)

          “The requirements set out in § 851 are mandatory and a district court may not

impose an enhanced sentence unless the defendant has been notified of the „strikes‟ in

compliance with these provisions.” United States v. Weaver, 267 F.3d 231, 246 (3d Cir.

2001). In analyzing compliance with § 851(a)(1), “courts have . . . analyzed whether the

purpose of § 851(a)(1) – providing a defendant with sufficient notice to comply with due

process – has been satisfied,” and “the question is whether any of the government's errors

rendered the notice constitutionally lacking.” Id. at 247. We will not “elevate form over

substance” in this analysis. Id. (internal quotation marks and punctuation omitted). The

minor errors in the Information – the absence of the AUSA‟s address and so on – do not

constitute a due process violation2 and did not affect Wright‟s substantial rights. The fact

that the District Court did not strike the Information for these deficiencies was not plain

error.3



          2
         Wright does not argue, for example, that his counsel never received the
Information, that he did not know about it, or that the government did not file the
Information with the District Court.
       3
         Wright contends that his counsel was ineffective for failing to move to strike the
Information. We ordinarily decline to address such claims on direct appeal, and we see no
reason to depart from that practice in this case. See United States v. Thornton, 327 F.3d
268, 271-72 (3d Cir. 2003). We will, therefore, deny Wright‟s claim regarding his
counsel‟s ineffectiveness without prejudice to his right to address the claim in a petition
under 28 U.S.C. § 2255.
                                               8
              2.      Failure to Conduct a Colloquy Under § 851(b)

       As the government acknowledges, the District Court did not comply with § 851(b),

and we review this issue, too, for plain error. Wright contends that “it is unclear from the

record whether Mr. Wright appreciated his ability to challenge the prior convictions

contained in the Section 851 Information or that any challenge to them would have been

futile.” (Appellant‟s Br. at 18.) He does not, however, claim that the Information actually

contained any incorrect data about his criminal history or that the Court erred in finding

that his prior convictions qualified him for sentencing as a career offender. Each of the

prior offenses in the Information, moreover, was also set forth in the PSR. Wright

acknowledged that he read the PSR, and he did not object to the validity of the data that

the government presented to the Court regarding his prior offenses. Wright also

personally acknowledged his criminal history, although not by specific offense, when he

spoke to the Court at his sentencing hearing.

       In short, Wright does not offer any reason to believe that if the District Court had

complied with § 851(b), his sentence would have been different. Most notably, he does

not claim that he was ineligible for sentencing as a career offender. The Court‟s failure to

comply with § 851(b) was error that was plain, but Wright has not offered any reason to

believe that this error affected his substantial rights or seriously affects the fairness,

integrity, or public reputation of judicial proceedings. We, therefore, reject his argument

addressed to § 851(b).


                                                9
       B.     Substantive Reasonableness

              Wright claims that the 235-month sentence was “far greater than necessary

to meet the purposes of sentencing,” and that it violated the “Parsimony Provision.”

(Appellant‟s Br. at 21.) The District Court held an extensive sentencing hearing, during

which it heard, acknowledged, and discussed Wright‟s arguments for a lower sentence.

The Court was concerned, among other things, about Wright‟s lengthy and unabated

criminal history, the likelihood that he would commit future offenses, and protecting the

community from further crime. The Court did not abuse its discretion in imposing the

sentence it did, and that sentence “falls within the broad range of possible sentences that

can be considered reasonable in light of the § 3553(a) factors.” Wise, 515 F.3d at 218.

IV.    CONCLUSION

       We will affirm the judgment of sentence.




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