Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-25-2008
USA v. Wright
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4074
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4074
UNITED STATES OF AMERICA
v.
JAMES WRIGHT,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 06-cr-00302)
District Judge: The Honorable Robert B. Kugler
Submitted Under Third Circuit LAR 34.1(a)
June 25, 2008
Before: SLOVITER, BARRY and ROTH, Circuit Judges
(Filed: July 25, 2008 )
OPINION
BARRY, Circuit Judge
James Wright pled guilty to one count of illegal reentry into the United States after
deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2), and was sentenced to a term
of imprisonment of 63 months. He now appeals. For the reasons that follow, we will
affirm.
I. Factual and Procedural History
Wright is a native and citizen of Jamaica. On November 16, 1998, he pled guilty
in New Jersey state court to possessing a dangerous controlled substance, cocaine, with
the intent to distribute it within 1,000 feet of a school zone, and was sentenced to 8 years’
imprisonment. On May 3, 2001, the Bureau of Immigration and Customs Enforcement
(“BICE”) removed him to Jamaica. He reentered the United States on or about
September 1, 2001 using a fraudulent passport and visa. He lived with his wife and her
two adult daughters in Glassboro, New Jersey until December 23, 2005, when one of the
daughters called the police to report his involvement in a domestic disturbance. A local
police officer responded and, upon learning that Wright was a previously removed felon,
took him into custody. Wright was thereafter formally arrested by a BICE agent and
removed to a BICE field office. While there, he admitted that he was a citizen of
Jamaica, that he had been previously removed to Jamaica, that he had not received
permission to reenter the United States, and that he did in fact reenter the United States in
September 2001.
The United States filed a complaint charging Wright with illegal reentry, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). On the advice of counsel, he rejected a plea
of guilty to § 1326(a) because the plea agreement would have required him to stipulate to
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the fact of his prior conviction and he would then be unable to later challenge the
constitutionality of § 1326(b). After further discussion, the government offered him an
amended plea agreement, which he signed. He acknowledged in the agreement that
“under the current state of the law, it is within the sentencing judge’s province to make
the determination of whether or not 8 U.S.C. § 1326(b) applies to this matter, and that the
sentencing judge should and shall employ a preponderance of the evidence standard in
making that determination.” (J.A. 28.)
The government submitted a list of questions to be asked by the District Court at
the plea hearing to establish the factual basis for the plea. The questions would have
required Wright to admit to the fact of his prior conviction. His counsel advised the
Court that Wright would plead guilty to the information but would not do so pursuant to
the plea agreement. Because, in the government’s view, Wright had withdrawn from the
plea agreement, the government presented evidence to a grand jury in support of an
indictment. An indictment was returned and Wright pled guilty, but again, on the advice
of counsel, he refused to acknowledge the fact of his prior conviction.
At Wright’s sentencing hearing, the District Court reduced his offense level by two
levels under U.S.S.G. § 3E1.1(a) for his acceptance of responsibility. The government
stated that if Wright would admit to his prior conviction, it would ask the Court to reduce
his offense level by one additional level under § 3E1.1(b). He refused to do so, and was
subsequently sentenced to 63 months, the bottom of his 63- to 78-month guidelines range.
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II. Discussion 1
Wright’s first contention on appeal is that 8 U.S.C. § 1326(b)(2) is unconstitutional
on its face and as applied to him. Section 1326(b)(2) states that an alien convicted under
§ 1326(a) for illegal reentry into the United States, “whose removal was subsequent to a
conviction for commission of an aggravated felony,” shall be fined or imprisoned not
more than 20 years or both. In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the fact of a prior conviction for an aggravated
felony under § 1326(b)(2) is a sentencing factor and not an element of the underlying
offense. Accordingly, it need only be proven to a sentencing judge by a preponderance of
the evidence.
Wright concedes that Almendarez-Torres binds this Court and, consequently,
forecloses this basis of his appeal. He nonetheless argues that following the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), a majority of the Court
believes that the constitutional question in Almendarez-Torres was incorrectly decided.
While he recognizes that Almendarez-Torres remains good law, he brings this appeal
solely to preserve his constitutional claim in the event the Court were to reverse
Almendarez-Torres. Because we remain bound by Almendarez-Torres, we will affirm the
judgment of sentence. See United States v. Vargas, 477 F.3d 94, 104 (3d Cir. 2007).
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We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a).
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Wright’s second contention is that the District Court erred in refusing to award
him a reduction of one additional level under U.S.S.G. § 3E1.1(b). If a defendant
qualifies for a two-level reduction in his offense level for having accepting responsibility
for his crime, and if the offense level is 16 or greater, the District Court may,
upon motion of the government stating that the defendant has assisted
authorities in the investigation or prosecution of his own misconduct by
timely notifying authorities of his intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently, decrease the
offense level by 1 additional level.
U.S.S.G. § 3E1.1(b). Wright does not dispute that the government did not make such a
motion. What he does contend is that the government’s decision was made arbitrarily
because he adequately assisted the government by willingly admitting each element of his
offense. The only thing he refused to admit, the argument goes, was the fact of his prior
conviction, but that was not an element of the crime to which he pled guilty.
Where the government declines to move for the additional one--level reduction
under section 3E1.1(b), a district court is left “powerless” to grant such a reduction.
United States v. Drennon, 516 F.3d 160, 162 (3d Cir. 2008). The government’s discretion
to decline, however, is not boundless; it still remains subject to constitutional
constraints—it cannot, for example, base its decision on the defendant’s race, religion, or
gender. Id. at 162-63. Wright does not argue that the government’s decision was based
on any unconstitutional reason or was not rationally related to its legitimate interest in
providing an incentive for defendants to plead guilty, thereby enabling the government to
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more efficiently prosecute its cases. Moreover, it bears mention that at the sentencing
hearing, the government afforded Wright a final opportunity to admit the fact of his prior
conviction even though he had already pled guilty. Wright’s second contention is without
merit.
Wright argues, next, that the District Court erred when it did not sentence him as if
the additional one-level reduction had been applied. At the sentencing hearing, his
counsel argued that “under Booker Mr. Wright should be treated as if the third[-level
reduction] had been applied” and that “he should not be treated any differently than
somebody who got the third[-level reduction]. Because, frankly, there’s nothing in
3553(a) to distinguish between him and somebody else.” (J.A. 145.) For the reasons that
warranted the decision not to move for the additional level, the decision not to apply that
level as if a motion had been made was not error. Moreover, the fact that Wright decided
not to plead guilty to an already executed plea agreement, which required the government
to present the case to the grand jury, distinguishes him from a hypothetical defendant who
is granted the additional one-level reduction for substantial assistance to the government.
Finally, Wright argues that the District Court erred in not granting him a below-
guidelines sentence in light of the sentencing factors set forth in 18 U.S.C. § 3553(a). In
determining whether a sentence is reasonable, we must be satisfied that the Court
adequately considered the relevant factors set forth in § 3553(a). United States v.
Kononchuk, 485 F.3d 199, 204 (3d Cir. 2007). It did so here. The Court discussed in
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detail each of the relevant § 3553(a) factors and its application to the facts of the case,
and indicated its belief that any differences in sentences given to illegal reentry
defendants in fast-track and non-fast-track jurisdictions did not demonstrate that the
guidelines, as applied to Wright, were unduly harsh. It then determined that a 63-month
term of imprisonment—the lowest possible sentence within Wright’s suggested
guidelines range—was necessary to deter Wright from reentering the United States in the
future. We find no reason to disturb the sentence.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of sentence.
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