2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-22-2011

USA v. Wright

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1909

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 07-1909

____________

UNITED STATES OF AMERICA

 v.

ROBERT WRIGHT,

 Appellant

____________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 05-cr-00619-001)

District Judge: Honorable Cynthia M. Rufe

____________

Submitted Under Third Circuit LAR 34.1(a)

March 15, 2011

____________

Before: RENDELL, BARRY and CHAGARES, Circuit Judges

(Opinion Filed: March 22, 2011)

____________

OPINION

____________

BARRY, Circuit Judge

Robert Wright pled guilty to several counts of cocaine-related crimes, and the 

District Court sentenced him to 235 months of imprisonment. He raises procedural and 
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substantive challenges to his sentence. We will affirm.

I. BACKGROUND

On October 26, 2005, after an extensive undercover and surveillance operation, the 

government indicted Robert Wright and seven co-defendants for drug-related crimes. The 

government filed a superseding indictment on December 7, 2005, and on December 27, 

2005, it filed an Information Charging Prior Offense Under Title 21 U.S.C. § 851 

(“Information”) to give notice “of the defendant‟s prior convictions for purposes of 

enhanced sentencing, pursuant to Title 21, United States Code, Section 851.” (R. at 23.) 

In the Information, the government listed Wright‟s five prior convictions in the 

Pennsylvania courts for manufacture, delivery, or possession with intent to manufacture 

or deliver a controlled substance, each of which was a felony. The Information stated that 

Wright was adjudged guilty of one of these offenses on January 7, 1993 and of the other 

four offenses on May 9, 1996.1It concluded with a statement that “the government 

respectfully gives notice that the defendant will be subject, upon conviction of a violation 

of Title 21, United States Code, Section 841, to the enhanced penalties set forth in Title 

21, United States Code, Section 841(b)(1)(C).” (Id. at 24.) 

The Information included the typed names of the United States Attorney and 

Assistant United States Attorney (“AUSA”), but did not include a “/s” or similar symbol 

before either name or the AUSA‟s address, email address, or telephone number. The 

 

1 The revised Presentence Investigation Report (“PSR”) also included these five 

crimes.
3

certificate of service accompanying the Information “did not indicate that it had been 

filed electronically” and “did not state that it was available for viewing and downloading 

from the ECF system.” (Appellant‟s Br. at 12-13.) The AUSA did state, however, that she 

“certif[ied] that [she has] served or caused to be served a copy of the foregoing 

[Information] by electronic service upon” defense counsel. 

Wright pled guilty on October 13, 2006 to numerous counts of knowing and 

intentional distribution of cocaine, as well as aiding and abetting in the knowing and 

intentional distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 

18 U.S.C. § 2. Based on the amount of cocaine for which Wright was responsible, the 

PSR listed his base offense level as 26. The PSR also stated, however, that he was a 

career offender under U.S.S.G. § 4B1.1 because he had at least two, and in fact five, prior 

adult convictions for the “[m]anufacture/delivery /possession [sic] with intent to 

manufacture or deliver a controlled substance.” (PSR at 11-13.) As a career offender, his 

offense level increased to 34. He received a three-level downward adjustment for 

acceptance of responsibility, which resulted in a total offense level of 31 and a sentencing 

guidelines range of 188 to 235 months. 

At the sentencing hearing on March 23, 2007, Wright acknowledged that he read 

the PSR and reviewed it with defense counsel. The District Court discussed at some 

length, but ultimately rejected, Wright‟s argument that the four convictions dated May 9, 

1996 were related and should be consolidated for the calculation of his criminal history 
4

points. The Court also denied Wright‟s motion for a downward departure under U.S.S.G. 

§ 4A1.3, which gives a district court the discretion to grant a downward departure from 

the guidelines calculation if “the defendant‟s criminal history category substantially overrepresents the seriousness of the defendant‟s criminal history or the likelihood that the 

defendant will commit other crimes.” U.S.S.G. § 4A1.3(b)(1). 

In lengthy discussions during the hearing regarding the effect that Wright‟s prior 

convictions should have on the calculation of his guidelines range, there was no 

suggestion that the PSR or the Information were factually incorrect as to Wright‟s prior 

convictions. Defense counsel stated that “we know the prior convictions exist,” and 

raised no other relevant objections to the PSR. (R. at 80; see id. at 101-02, 105.) Wright 

spoke directly to the District Court twice during the sentencing hearing, and it appears 

from the transcript that he interrupted his counsel on one of those occasions and asked to 

speak directly to the Court, which the Court allowed. He did not ask the Court to correct 

any factual errors in his criminal history but rather said, “I‟m not trying to minimize my 

criminal history, I mean, I was dealing, I – I admit to that to the Court on the record. I 

admit I was wrong and I was convicted of it.” (Id. at 111.) 

The District Court observed that it “didn‟t hear any respect for the law [from 

Wright] and [it] didn‟t hear anything about the harm that [Wright‟s] crimes do to the 

community.” (Id. at 114.) The Court believed that Wright “need[ed] to do more before [he 

was] ready to be rehabilitated” and concluded that Wright‟s time as a fugitive 
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demonstrated his lack of respect for the law. (Id. at 115.) The Court was also concerned 

about protecting the community from Wright because he did not “know enough to get out 

of prison and not do it again.” (Id. at 116.) 

Before imposing sentence, the District Court acknowledged that Wright shared his 

drug profits with friends and family, as well as the fact that he learned to sell drugs at a 

young age. The Court noted, however, that he was “someone who has escalated their drug 

activity to the big time” and that although judges in Wright‟s previous criminal cases 

“have tried to do right by Mr. Wright,” he continued to sell drugs. (Id. at 140.) The Court 

did not “trust [that Wright was] ready to be deterred from committing additional crime, 

[was] ready to start respecting the law, [was] ready to be rehabilitated.” (Id. at 141.) 

The District Court sentenced Wright at the top of his guidelines range, to 235 

months of imprisonment. On appeal, he claims that his sentence was procedurally and 

substantively unreasonable. 

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have 

appellate jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. A district 

court must engage in a three-step analysis to determine the appropriate sentence to impose 

on a defendant. It must first correctly calculate the guidelines range and then rule on any 

motions for a departure from that range. United States v. Lopez-Reyes, 589 F.3d 667, 670 

(3d Cir. 2009). It must then meaningfully consider the relevant factors in 18 U.S.C. § 
6

3553(a) and exercise its discretion to set the sentence. Id. 

When reviewing a sentence on appeal, we “first ensure that the district court 

committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51 (2007). 

Wright argues that the District Court should have stricken the Information and not applied 

the career offender guideline. He also contends that the Court violated 21 U.S.C. § 

851(b) when it failed to ask him about the prior offenses in the Information before 

imposing sentence. He did not raise either of these arguments before the District Court, 

and we therefore review for plain error. United States v. Couch, 291 F.3d 251, 252 (3d 

Cir. 2002). For Wright to succeed on these claims, he must show that there was (1) an 

error that was (2) plain, e.g., clear or obvious, that (3) also affected his substantial rights. 

Johnson v. United States, 520 U.S. 461, 467 (1997). If he makes that showing, we may

exercise our discretion to grant relief, but we may only do so if “the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation 

marks and punctuation omitted).

Wright argues further that the 235-month sentence was substantively unreasonable. 

We “consider the substantive reasonableness of the sentence imposed under an abuse-ofdiscretion standard.” Gall, 552 U.S. at 51. We must affirm “[a]s long as a sentence falls 

within the broad range of possible sentences that can be considered reasonable in light of 

the § 3553(a) factors.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008). 
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III. ANALYSIS

A. Compliance with 21 U.S.C. § 851

A defendant may not be subject to “increased punishment by reason of one or more 

prior convictions” unless the government “files an information with the court (and serves 

a copy of such information on the person or counsel for the person) stating in writing the 

previous convictions to be relied upon.” 21 U.S.C. § 851(a)(1). After conviction but 

before imposing a sentence, the court “shall . . . inquire of the person with respect to 

whom the information was filed whether he affirms or denies that he has been previously 

convicted as alleged in the information, and shall inform him that any challenge to a prior 

conviction which is not made before sentence is imposed may not thereafter be raised to 

attack the sentence.” 21 U.S.C. § 851(b).

1. Sufficiency of the Information Under § 851(a)

Wright claims that the Information was deficient, as well as improperly filed and 

served, and that the District Court should have stricken it and declined to apply the career 

offender status to Wright. He argues that the Information violated Federal Rule of Civil 

Procedure 11(a) because it did not include the AUSA‟s address, email address, and 

telephone number, and that the certificate of service violated Eastern District of 

Pennsylvania Local Rule 5.1.2.9(a) because “[i]t did not indicate that it had been 

electronically filed; it did not set forth [the AUSA‟s] address and telephone number; and 

it did not include a „s/‟ before her name on the signature line.” (Appellant‟s Br. at 11.) He 
8

contends as well that service of the Information was defective because “[t]he Certificate 

of Service did not indicate that it had been filed electronically” and “did not state that it 

was available for viewing and downloading from the ECF system.” (Id. at 12-13.) 

“The requirements set out in § 851 are mandatory and a district court may not 

impose an enhanced sentence unless the defendant has been notified of the „strikes‟ in 

compliance with these provisions.” United States v. Weaver, 267 F.3d 231, 246 (3d Cir. 

2001). In analyzing compliance with § 851(a)(1), “courts have . . . analyzed whether the 

purpose of § 851(a)(1) – providing a defendant with sufficient notice to comply with due 

process – has been satisfied,” and “the question is whether any of the government's errors 

rendered the notice constitutionally lacking.” Id. at 247. We will not “elevate form over 

substance” in this analysis. Id. (internal quotation marks and punctuation omitted). The 

minor errors in the Information – the absence of the AUSA‟s address and so on – do not 

constitute a due process violation2and did not affect Wright‟s substantial rights. The fact 

that the District Court did not strike the Information for these deficiencies was not plain 

error.

3

 

 

2 Wright does not argue, for example, that his counsel never received the 

Information, that he did not know about it, or that the government did not file the 

Information with the District Court.

3 Wright contends that his counsel was ineffective for failing to move to strike the 

Information. We ordinarily decline to address such claims on direct appeal, and we see no 

reason to depart from that practice in this case. See United States v. Thornton, 327 F.3d 

268, 271-72 (3d Cir. 2003). We will, therefore, deny Wright‟s claim regarding his 

counsel‟s ineffectiveness without prejudice to his right to address the claim in a petition 

under 28 U.S.C. § 2255.
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2. Failure to Conduct a Colloquy Under § 851(b)

As the government acknowledges, the District Court did not comply with § 851(b), 

and we review this issue, too, for plain error. Wright contends that “it is unclear from the 

record whether Mr. Wright appreciated his ability to challenge the prior convictions 

contained in the Section 851 Information or that any challenge to them would have been 

futile.” (Appellant‟s Br. at 18.) He does not, however, claim that the Information actually 

contained any incorrect data about his criminal history or that the Court erred in finding 

that his prior convictions qualified him for sentencing as a career offender. Each of the 

prior offenses in the Information, moreover, was also set forth in the PSR. Wright 

acknowledged that he read the PSR, and he did not object to the validity of the data that 

the government presented to the Court regarding his prior offenses. Wright also 

personally acknowledged his criminal history, although not by specific offense, when he 

spoke to the Court at his sentencing hearing. 

In short, Wright does not offer any reason to believe that if the District Court had 

complied with § 851(b), his sentence would have been different. Most notably, he does 

not claim that he was ineligible for sentencing as a career offender. The Court‟s failure to 

comply with § 851(b) was error that was plain, but Wright has not offered any reason to 

believe that this error affected his substantial rights or seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. We, therefore, reject his argument 

addressed to § 851(b). 
10

B. Substantive Reasonableness

Wright claims that the 235-month sentence was “far greater than necessary 

to meet the purposes of sentencing,” and that it violated the “Parsimony Provision.” 

(Appellant‟s Br. at 21.) The District Court held an extensive sentencing hearing, during 

which it heard, acknowledged, and discussed Wright‟s arguments for a lower sentence. 

The Court was concerned, among other things, about Wright‟s lengthy and unabated 

criminal history, the likelihood that he would commit future offenses, and protecting the 

community from further crime. The Court did not abuse its discretion in imposing the

sentence it did, and that sentence “falls within the broad range of possible sentences that 

can be considered reasonable in light of the § 3553(a) factors.” Wise, 515 F.3d at 218. 

IV. CONCLUSION

We will affirm the judgment of sentence.