                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                              NOT PRECEDENTIAL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



                                               2
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.



                                              3
       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



                                              4
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.

                                              5
              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

                                             6
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.”

                                              7
TO THE CLERK:

         Please file the foregoing opinion.


           /s/ Dolores K. Sloviter
          Circuit Judge




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