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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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