CR315SE USCOURTS Nynd 5 06 Cr 00315 16
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NAM
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
UNITED STATES OF AMERICA,
Respondent, 5:06-CR-315 (NAM)
v. 5:08-CV-1271
QUANTE WRIGHT A.K.A. “LITTLE HOVA”,
Petitioner.
___________________________________________
APPEARANCES: OF COUNSEL:
Quante Wright,
13895-052
USP Big Sandy
U.S. Penitentiary
P.O. Box 2068
Inez, Kentucky 41224
Petitioner, Pro Se
Andrew T. Baxter John M. Katko,
United States Attorney Assistant United States Attorney
Northern District of New York
100 South Clinton Street
Room 900, P.O. Box 7198
Syracuse, New York 13261-7198
Norman A. Mordue, Chief U.S. District Judge:
MEMORANDUM DECISION AND ORDER
I. INTRODUCTION
Petitioner Quante Wright moves to vacate, set aside, or correct his conviction pursuant to
28 U.S.C. § 2255. The government opposes Wright’s motion.
II. BACKGROUND
On April 20, 2007, Wright pled guilty to a conspiracy to engage in a pattern of
racketeering activity as part of his membership in the Brighton Brigade gang, in violation of the
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Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d). On January
31, 2008, the Court sentenced Wright to a term of imprisonment of 105 months, followed by 5
years of supervised release.
On April 29, 2008, Wright filed a motion seeking an order appointing counsel and
arguing: (1) that when imposing sentence, the Court failed to consider that all the overt acts to
which Wright pled guilty were committed between the ages of 14 and 18; and (2) that even
though his offense level was enhanced based on his overt acts, the Court failed to award him
credit for prior terms of imprisonment he served in connection with those acts.
Because Wright claimed legal error in his sentencing proceeding, the Court advised him
that it intended to convert his motion papers to a petition pursuant to § 2255, warned Wright of
the potential adverse consequences of such conversion, and offered him the opportunity to
withdraw his submission. Additionally, the Court informed Wright that if he desired the Court to
consider the motion under § 2255, he could amend and/or supplement his motion.
Wright amended and supplemented his original motion papers to include an argument that
the Court lacked subject matter jurisdiction in this case because the government failed to file a
certification required by the Federal Juvenile Delinquency Act (“JDA”) , 18 U.S.C. § 5301 et seq.
The government filed a response in opposition to Wright’s motion. Wright filed a reply to the
government’s opposition papers.
III. DISCUSSION
Section 2255 allows a convicted person held in federal custody to petition the sentencing
court to vacate, set aside or correct a sentence. Morales v. United States, 2008 WL 4761705, at *
3 (S.D.N.Y. 2008). A § 2255 petitioner may collaterally attack his sentence on very limited
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grounds. Indeed, a district court may only vacate or modify a sentence if the court “was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” United States v. Addonizio, 442
U.S. 178, 183 (1979). To be otherwise subject to collateral attack, the sentence must suffer from
an error of law that is either constitutional in magnitude or so fundamental as to result in a
miscarriage of justice. See id.; Parsons v. United States, 919 F. Supp. 86, 88-89 (N.D.N.Y.
1996).
A. Age
Wright argues in his motion papers that when imposing sentence, the Court failed to
consider that he was between the ages of 14 and 18 when he committed the overt acts alleged in
the indictment. As the Court explained when imposing sentence, “I took into consideration his
age when things started with him and the amount of [criminal history] points that did develop at
the younger age, didn’t go away, I have thought of that in the sentence that I have imposed too.”
Dkt. No. 237, p. 6. Thus, Wright’s argument is without merit.
B. Federal Juvenile Delinquency Act
In this case, Wright contends that because he was under the age of 18 during “part of the
conspiracy” the JDA required the government to file a certification. Wright further asserts that
the government’s failure to do so deprived the Court of subject matter jurisdiction. The Second
Circuit has explained:
The need certification provision directs that a juvenile alleged to have committed an
act of juvenile delinquency may not be prosecuted in a federal district court unless the
Attorney General certifies to the court that: (1) state courts either do not have or
refuse to assume jurisdiction over the juvenile; (2) the state does not have “available
programs and services adequate for the needs of juveniles;” or (3) the offense charged
is a violent felony, or is one of several enumerated narcotics- and firearm-related
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offenses, and there is a substantial federal interest in the case or the offense to warrant
the exercise of federal jurisdiction. 18 U.S.C. § 5032. Certification is a prerequisite
to the exercise of federal jurisdiction over juveniles.
United States v. Wong, 40 F.3d 1347, 1363 (2d Cir. 1994) (footnote omitted). However, the
Second Circuit has held that “federal courts have jurisdiction over conspiracies begun while a
defendant was a minor but completed after his eighteenth birthday.” Wong, 40 F.3d at 1365. In
Wong, the Second Circuit explained that because the RICO conspiracy was a continuing crime,
the defendant’s “post-eighteen conduct” of conspiracy to murder was sufficient “to furnish the
district court with jurisdiction over the substantive RICO and RICO conspiracy charges”. Wong,
40 F.3d at 1366.
In this case, Wright turned 18 on November 25, 2002. In his plea agreement, and at the
plea hearing, Wright admitted to a number of overt acts, including overt acts 45 (crack
possession), 47 (crack possession), and 51 (participation in an armed robbery), all of which he
committed at the age of 18. Thus, Wright “ratif[ied] his pre-eighteen participation by continued
participation after attaining majority.” Wong, 40 F.3d at 1366. Accordingly, no certification
pursuant to the JDA was required and the Court had subject matter jurisdiction over this action.
C. Credit for Discharged Terms of Imprisonment
Wright argues that “he was enhanced levels and categories for his overt acts. The court
did not credit him any of his jail time credit served for the overt acts prior to this case.”
According to the PSR, Wright has served terms of imprisonment in connection with overt acts 33
and 45, to which he admitted as part of his plea agreement, specifically: a 5 month sentence in
state court after violating probation in connection with his conviction for criminal possession of a
weapon, which is described in overt act 33; and a 9 month sentence after violating probation in
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connection with his conviction for resisting arrest, which is described in overt act 45.1 Wright
completed both terms of imprisonment prior to sentencing in this case on January 31, 2008.
Wright asserts the Court should have awarded credit for the time served in connection with these
convictions because they were used in calculating his sentence.2
Regarding credit for discharged terms of imprisonment, § 5K2.23 of the United States
Sentencing Guidelines provides in relevant part:
A downward departure may be appropriate if the defendant (1) has completed serving
a term of imprisonment; and (2) subsection (b) of § 5G1.3 (Imposition of a Sentence
on a Defendant Subject to Undischarged Term of Imprisonment) would have provided
an adjustment had that completed term of imprisonment been undischarged at the time
of sentencing for the instant offense.
U.S.S.G. § 5K2.23. Section 5G1.3(b) applies “in cases in which all of the prior offense (i) is
relevant conduct to the instant offense . . .; and (ii) has resulted in an increase in the . . . offense
level for the instant offense.” U.S.S.G. § 5G1.3, appl. n. 2.
In this case, Wright’s conviction for resisting arrest, which stemmed from overt act 45,
possession of cocaine base (crack), was included in his criminal history, and not as part of the
1There appears to be an error in the PSR which refers to the facts underlying overt act 45
as overt act 54 in ¶¶ 42 and 82.
2At the sentencing hearing, the Court found Wright’s total offense level was 30, and his
criminal history category was VI. Wright’s offense level was calculated based on: (1) a drug
quantity of at least 50 grams but less than 150 grams of cocaine base (crack), (§2D1.1(c)(5)), and
the possession of a dangerous weapon in connection with drug trafficking activities (§
2D1.1(b)(1)); and (2) robbery during which a firearm was discharged (overt act 51) (§§ 2B3.1
and 2B3.1(b)(2)(A)). When grouped pursuant to U.S.S.G. §3D1.4, these offenses yielded an
offense level of 33. The Court reduced the offense level by 3 levels based on Wright’s
acceptance of responsibility and timely notification of his intention to plead guilty (§§ 3E1.1(a)
and 3E1.1(b)), resulting in a total offense level of 30.
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instant offense. Section 2E1.1, Application Note 4 regarding offense levels in RICO cases
specifically provides that:
[w]here such previously imposed sentence resulted from a conviction prior to the last
overt act of the instant offense, treat as a prior sentence under § 4A1.2(a)(1) and not
as part of the instant offense. This treatment is designed to produce a result consistent
with the distinction between the instant offense and criminal history found throughout
the guidelines.
This conviction, therefore, did not increase Wright’s offense level and he was not entitled to
credit for any time served in connection with that offense.
At sentencing, Wright received a 2-level increase pursuant to U.S.S.G. § 2D1.1(b)(1) for
possessing a dangerous weapon in connection with drug trafficking activities. Although Wright
served a 5 month term of imprisonment after violating probation in connection with his
conviction for criminal possession of a weapon (overt act 33), “a defendant cannot enjoy the
benefits of section 5G1.3(b) unless the district court in fact incorporated his prior offense as
relevant conduct in the instant prosecution.” United States v. Williams, 260 F.3d 160, 167 (2d
Cir. 2001).
In this case, the Court did not incorporate overt act 33, Wright’s prior weapons offense, as
relevant conduct for purposes of increasing his offense level under § 2D1.1(b)(1). Indeed, as
grounds for the imposition of the 2 level increase pursuant to § 2D1.1(b)(1), the presentence
investigation report (“PSR”), on which the Court relied in imposing sentence, cited: Brighton
Brigade gang members’ routine possession and use of firearms in furtherance of their criminal
activities, including the distribution of cocaine base (crack); and Wright’s possession of firearms.
The PSR also indicated that there was a basis on which the Court could find that Wright was
reasonably aware of firearms that were used to further Brighton Brigade’s drug trafficking
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activities. Further, overt act 33 was not the only act to which Wright admitted that involved the
possession of a firearm. Indeed, according to overt act 21, Wright brandished a revolver.
Therefore, since the Court did not “in fact” incorporate Wright’s prior weapons conviction, as
described in overt act 33, as relevant conduct to increase his offense level pursuant to §
2D1.1(b)(1), a downward departure pursuant to § 5K2.23 in order to provide credit for the 5
month term of imprisonment he served in connection with that offense, was not warranted.
IV. APPOINTMENT OF COUNSEL
Pursuant to 18 U.S.C. § 3006A(a)(2)(B), the Court may appoint counsel for a petitioner
seeking relief under § 2255 when “the interests of justice so require”. In this case, Wright’s
claims lack merit, thus, appointment of counsel is not warranted.
V. CERTIFICATE OF APPEALABILITY
Finally, 28 U.S.C. § 2253(c)(1) provides in relevant part that:
Unless a circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals from –
(B) the final order in a proceeding under section
2255.3
A certificate of appealability may only be issued “if the applicant has made a substantial showing
of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Since Wright has failed to
make such a showing herein, the Court declines to issue any certificate of appealability in this
matter. See Hohn v. United States, 524 U.S. 236, 239-40 (1998).
VI. CONCLUSION
3 Rule 22 of the Federal Rules of Appellate Procedure also provides that an appeal may
not proceed in such actions “unless a circuit justice or a circuit or district judge issues a
certificate of appealability under 28 U.S.C. § 2253(c).” See Fed.R.App.P. 22(b).
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WHEREFORE, after having reviewed the record relating to the underlying criminal
matter, the documents submitted by the parties in conjunction with this action, the applicable law,
and for the reasons discussed herein, it is hereby
ORDERED that Petitioner's Motion to Vacate is DENIED, and it is further
ORDERED that the Clerk of the Court serve a copy of this Order on the parties
by electronic or regular mail.
A Certificate of Appealability shall not be issued in this case.
IT IS SO ORDERED
Date: June 30, 2009
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