                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 00-1301




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Recommended Citation
"USA v. Stratton" (2002). 2002 Decisions. Paper 310.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/310


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                                                  NOT PRECEDENTIAL

                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                           No. 00-1301
                           ___________

                    UNITED STATES OF AMERICA

                              vs.

                       ALLEN S. STRATTON,

                               Appellant.
                           ___________

         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                 (D.C. Criminal No. 99-cr-00326)
       District Judge: The Honorable William H. Yohn, Jr.
                           ___________

            Submitted Under Third Circuit LAR 34.1(a)
                           May 6, 2002

       BEFORE: NYGAARD, ALITO, and ROSENN, Circuit Judges.

                      (Filed: May 29, 2002)

                           ___________

                       OPINION OF THE COURT
                           ___________

NYGAARD, Circuit Judge.
         Appellant, Allen Stratton, was convicted of distributing crack cocaine in
violation of 21 U.S.C. 841(a)(1) (counts one, three and five of the indictment);
distributing cocaine within one thousand feet of a school in violation of 21 U.S.C.
860(a) (counts two, four and six of the indictment); possession with the intent to
distribute crack cocaine in violation of 21 U.S.C. 841(a)(1) (count seven of the
indictment); and possession with the intent to deliver crack cocaine within one thousand
feet of a school in violation of 21 U.S.C. 860(a) (count eight of the indictment). He
was sentenced to 240 months incarceration. He appeals raising the issues shown in
Section I below. We will affirm.
                              I. ISSUES
                        1.    Whether the government established by a preponderance of
              evidence that the controlled substance in this case was crack
              cocaine?
                        2.    Whether a two-point enhancement under the Sentencing Guidelines
              for obstruction based on appellant’s testimony was warranted?
                        3.    Whether the District Court erred in applying a two-point
              enhancement for possession of gun during a drug offense?
                        4.    Whether the District Court’s decision to depart from the Guideline
              career offender designation required a sentence below the 240
              months imposed?
                           II. DISCUSSION
         Because our opinion is not precedential and the facts are well known to
both the District Court and the parties, we need not recount them and will simply review
and discuss the issues as raised by the appellant.
         First, the District Court correctly determined, and Stratton does not dispute,
that he is a career offender subject to a sentencing range of 360 months to life under
 4B1.1 of the Guidelines. He argues nonetheless, that the District Court should have
departed more than 120 months, by finding that the criminal history category
significantly overstated his actual criminal history. We have no jurisdiction to review
that assertion, and therefore the sentence will be affirmed. The other issues raised by
Stratton, regarding the nature of the substance under 2D1.1, the finding the he
possessed a firearm, and the finding of perjury, are irrelevant to the career offender
determination, and we need not reach them. See, United States v. Parker, 902 F.2d 221
(3rd Cir. 1990).
         Second, the District Court did not err by finding the cocaine base to be the
form known as "crack." The District Court appropriately relied on the testimony of a
police chemist and a narcotics officer with extensive experience, who testified that the
substance possessed and sold by Stratton was crack cocaine. See, United States v. Dent,
149 F.3d 180 (3rd Cir. 1998).
         Next, the District Court did not err by finding that Stratton willfully
committed perjury at trial, which finding compelled a two-level enhancement for
obstruction of justice under U.S.S.G. 3C1.1. The District Court made the specific
findings of fact required under United States v. Dunnigan, 507 U.S. 87 (1993).
         Finally, the District Court did not err by finding that Stratton possessed the
firearm found in the front bedroom of 1313 Webster Street, and that this possession
warranted a two-level enhancement under 2D1.1(b)(1). See, United States v. Goggins,
99 F.3d 116 (3rd Cir. 1996).
                          III. CONCLUSION
         In summary, we find no merit in any of the appellant’s arguments and will
affirm the sentence imposed by the District Court.
_________________________


TO THE CLERK:

         Please file the foregoing opinion.



                                       /s/ Richard L. Nygaard
                               _________________________________
                               Circuit Judge
