United States v. Wright , 285 F. App'x 1 ( 2008 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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    DLD-219                                                       NOT PRECEDENTIAL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, 
    319 F.3d 1245
    , 1246 (10th Cir. 2003); United States v. Arrango, 
    291 F.3d 170
    , 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, 
    864 F.2d 312
    , 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, 
    487 U.S. 266
    , 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, 
    517 F.3d 208
    , 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, 
    496 F.3d 387
    , 388-89 (5th Cir.
    2007). In this case, the government forfeited Rule 4(b)(1)’s time bar. See United States
    v. Mitchell, 
    518 F.3d 740
    , 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.
    3