Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4804




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Recommended Citation
"USA v. Wright" (2008). 2008 Decisions. Paper 872.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/872


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DLD-219                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-4804
                                      ___________

                            UNITED STATES OF AMERICA

                                             v.

                                    MARK WRIGHT,

                                             Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Crim. No. 93-cr-00386-5)
                     District Judge: Honorable Harvey Bartle III
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 5, 2008

               Before: BARRY, CHAGARES and ROTH, Circuit Judges

                              (Opinion filed: July 8, 2008)

                                       _________

                                        OPINION
                                       _________

PER CURIAM

      Mark Wright appeals the District Court’s order denying his motion for a

modification of his sentence filed pursuant to 18 U.S.C. § 3582(c)(2). Because this case

presents no substantial question, we will summarily affirm.
       Wright was convicted of drug-related offenses and was sentenced to a term of life

imprisonment in 1994. This Court affirmed the judgment of conviction and sentence.

Since 1996, Wright has unsuccessfully pursued post-conviction relief. In November

2007, Wright filed a pro se motion pursuant to 18 U.S.C. § 3582(c)(2), seeking a

modification of his sentence. The District Court denied the motion by order entered

December 5, 2007. Wright’s notice of appeal was dated and filed on December 26, 2007.

Fifteen days later, on January 10, 2008, the District Court entered on the docket a written

amplification of its December 5, 2007 order.1 See Local Appellate Rule 3.1.

       Wright sought relief based on Amendment 706 to the Sentencing Guidelines,

which lowered the base offense level for cocaine base offenses. A § 3582(c)(2) motion is

the proper means for seeking a reduction in sentence based on the retroactive application




   1
     A motion filed pursuant to § 3582(c)(2) is considered a continuation of the criminal
proceedings against a defendant. Thus, the ten-day period for filing a notice of appeal
applies. See Fed. R. App. P. 4(b)(1)(A); United States v. Espinosa- Talamantes, 

, 1246 (10th Cir. 2003); United States v. Arrango, 

, 171 (2d Cir. 2002).
As noted, the District Court’s order was entered on December 7, 2007. Wright did not
indicate when he received the District Court’s order, see United States v. Grana, 

, 316 (3d Cir. 1989), but his notice of appeal was delivered to prison authorities for
mailing, at the earliest, on December 26, 2007. See Houston v. Lack, 

, 270
(1988). That date is more than 10 days beyond entry of the District Court’s order. The
District Court’s written amplification of the original order does not effect the timeliness
analysis. Cf. United States v. Smalley, 

, 213 (3d Cir. 2008). Thus, Wright’s
notice of appeal was untimely filed under Fed. R. App. 4(b)(1). Importantly, however,
several of our sister circuits have held that Rule 4(b)(1) is an “inflexible claim-processing
rule,” which, unlike a jurisdictional rule, may be forfeited if not properly raised by the
government. See e.g., United States v. Molina Martinez, 

, 388-89 (5th Cir.
2007). In this case, the government forfeited Rule 4(b)(1)’s time bar. See United States
v. Mitchell, 

, 750-51 (10 th Cir. 2008). Thus, jurisdiction exists and we will
address the merits of Wright’s claims.

                                              2
of a lowered sentencing range. Importantly, however, the relevant retroactivity provision

in this case did not take effect until March 3, 2008. See U.S.S.G. § 1B1.10(c) (effective

Mar. 3, 2008). Thus, the District Court properly denied the motion – filed in November

2007 – as premature. Although the retroactivity provision has now become effective, we

will not remand this matter because Wright has already filed a new § 3582(c)(2) motion

in the District Court, which is currently pending.

       Accordingly, we will summarily affirm the District Court’s order denying the

prematurely-filed § 3582(c)(2) motion. See Third Circuit I.O.P. 10.6.




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