                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-22-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3011




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                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-3011


                            UNITED STATES OF AMERICA

                                             v.

                                    MARK WRIGHT,
                                            Appellant


                     On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                            District Court No. 93-cr-00386-005
                     District Judge: The Honorable Harvey Bartle, III


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   April 14, 2009

                        Before: McKEE, SMITH, Circuit Judges
                            and STEARNS, District Judge *

                                  (Filed: April 22, 2009)


                                         OPINION


STEARNS, District Judge.

       Mark Wright appeals the District Court’s denial of a motion for reduction of his

sentence pursuant to 18 U.S.C. § 3582(c)(2). On February 25, 1994, Wright was convicted


       *
       The Honorable Richard G. Stearns, District Judge for the United States District Court
for Massachusetts, sitting by designation.
of conspiracy to distribute in excess of 50 grams of cocaine base (crack cocaine) and

possession with intent to distribute 5 grams or more of cocaine base. The District Court

sentenced Wright to the Guidelines range of life imprisonment (reduced to 360 months to life

in 1998 as a result of an intervening Guidelines amendment). However, the District Court

denied a subsequent Amendment 706 request to modify the sentence further “as Wright had

distributed over 97 kilograms of cocaine base.” 1 Because the District Court did not err in

denying Wright’s request for a reduction in his sentence, we will affirm.

                                             I.

       On August 25, 1993, a grand jury in the Eastern District of Pennsylvania returned an

indictment against Wright and four co-defendants charging Wright with one count of

conspiracy to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. §

846 (Count One), and one count of possession of more than five grams of crack cocaine with

the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Four). The evidence at

trial established that Wright was a central figure in the Leath organization, a criminal gang

that manufactured and distributed crack cocaine in West Philadelphia from at least 1986

through 1992. The jury found Wright guilty on both Counts.

           The Presentence Investigation Report (PSR) prepared by the Probation Office for

the June 20, 1994 sentencing hearing determined that Wright’s base offense level for


       1
        Amendment 706 modified the Guidelines ranges applicable to crack cocaine
offenses; it has the general effect of “decreas[ing] by two levels the [crack cocaine] base
offense levels.” United States v. Wise, 515 F.3d 207, 219 (3d Cir. 2008). On December 11,
2007, the Sentencing Commission added Amendment 706 to the list of amendments set out
in U.S.S.G. § lB1.10(c) that may be applied retroactively (effective March 3, 2008).

                                             2
distributing in excess of 15 kilograms of cocaine base was 42.2 The base offense level was

increased by one level because some of Wright’s drug activity had taken place near a school,

by an additional two levels because of Wright’s possession of a firearm in connection with

his drug trafficking, and finally, by an additional three levels because of Wright’s managerial

role in the organization, resulting in a total offense level of 48. Under the Guidelines Manual

in effect at the time, an offense level of more than 43 was scored at the maximum offense

level of 43. The PSR determined Wright’s Criminal History Category to be III, resulting in

a Guidelines sentence of life imprisonment. The District Court adopted the PSR’s Guidelines

calculation and sentenced Wright to a term of life.3 Wright’s conviction and sentence was

affirmed by this Court on April 27, 1995.

       In 1998, the District Court reduced Wright’s sentence as a result of a 1996 Guidelines

amendment that generally decreased the base offense levels for drug offenses.4 The District

Court applied the amended base offense ceiling of 38, and also concluded that Wright should

not have received the three-level enhancement for his role in the offense. With this seven-



       2
         During Wright’s sentencing hearing, the Court found that he was responsible for the
distribution of more than 97 kilograms of cocaine base. In his Reply Brief, Wright insists
that “he was never held accountable for 97 kilograms of cocaine,” despite the history of his
involvement in the drug trafficking conspiracy limned in the PSR. Reply Brief at 2-3. Chief
Judge Bartel’s June 3, 2008 decision found this assertion flatly contradicted by the record in
the trial court. See U.S. v. Wright, 2008 WL 2265272, *2 (E.D. Pa. June 3, 2008).
       3
       The Court also imposed five years of supervised release and a $100 special
assessment.
       4
        That amendment set a maximum base offense level of 38 for drug crimes involving
crack cocaine offenses (instead of the previous level of 42). The new maximum offense
level applied to any offense involving more than 1.5 kilograms of cocaine base.

                                              3
level reduction, Wright’s adjusted offense level was 41. Given a Criminal History Category

of III, his Guidelines range was now 360 months to life. The Court reduced Wright’s

sentence to 360 months.

       On March 3, 2008, Wright filed a pro se motion for a further two-level sentence

reduction under 18 U.S.C. § 3582(c)(2). The District Court denied the motion, finding that

Wright did not qualify for an adjustment in his base offense level under Amendment 706.

The Court further ruled that Wright was not entitled to relief under United States v. Booker,

543 U.S. 220 (2005). Wright’s subsequent motion to “alter” the judgment was also denied.

                                             II.

       The District Court’s determination that Wright was ineligible for a reduction of

sentence based on a retroactive Guidelines amendment is subject to plenary review. United

States v. McBride, 283 F.3d 612, 614 (3d Cir. 2002). We review the District Court’s denial

of White’s motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) for an abuse of

discretion. United States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008).

       Section 3582(c)(2) provides:

       [I]n the case of a defendant who has been sentenced to a term of imprisonment
       based on a sentencing range that has subsequently been lowered by the
       Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the
       defendant or the Director of the Bureau of Prisons, or on its own motion, the
       court may reduce the term of imprisonment, after considering the factors set
       forth in section 3553(a) to the extent that they are applicable, if such a
       reduction is consistent with applicable policy statements issued by the
       Sentencing Commission.

       As the wording of the statute makes clear, Wright was not eligible for a reduction




                                             4
because Amendment 706 does not have the effect of lowering Wright’s Guidelines range.5

See United States v. Mateo, __ F.3d __, 2009 WL 750411 (3d Cir. March 24, 2009); United

States v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008); United States v. McFadden, 523 F.3d

839, 840-841 (8th Cir. 2008) (per curiam). Rather, the revised Guidelines apply a base

offense level of 38 to any offense involving 4.5 kilograms of cocaine base or more. Here,

the District Court found at the original sentencing hearing that Wright was responsible for

the distribution of a quantity of crack cocaine far in excess of 4.5 kilograms (97 kilograms).

Accordingly, Wright’s base offense level remains at level 38, his total adjusted offense level

at 41, and his Guidelines range at 360 months to life. Because there was no reduction in

Wright’s base offense level or sentencing range, the District Court did not err in denying his

motion for a reduction in sentence.6 We will therefore affirm the judgment of the District

Court.



         5
        In its revisions to § 1B1.10, the Commission made clear that a sentencing court is not
authorized to reduce a defendant’s sentence when a retroactive amendment does not result
in a lowering of the applicable sentencing range. Specifically, §(a)(2)(B) states: “A reduction
in the defendant's term of imprisonment is not consistent with this policy statement and
therefore is not authorized under 18 U.S.C. § 3582(c)(2) if . . . an amendment listed in
subsection (c) does not have the effect of lowering the defendant’s applicable guideline
range.” U.S.S.G. § 1B1.10 (a)(2)(B).
         6
        In his brief Wright asks this Court “to remand for a full-resentencing hearing” should
we “determine[] that a non-guideline sentence is required.” The Court may not revisit other
sentencing issues in evaluating a request for relief under Section 3582 (c). See United States
v. McBride, 283 F.3d 612, 615 (3d Cir. 2002) (“It is, thus, clear that only the retroactive
amendment is to be considered at a resentencing under § 3582 and the applicability of that
retroactive amendment must be determined in light of the circumstances existent at the time
sentence was originally imposed. In other words, the retroactive amendment merely replaces
the provision it amended and, thereafter, the Guidelines in effect at the time of the original
sentence are applied.”).

                                              5
