                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4127




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Recommended Citation
"USA v. Warren" (2009). 2009 Decisions. Paper 1229.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1229


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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT




                                      No. 07-4127
                                      __________

                           UNITED STATES OF AMERICA

                                            v.

                                DARRELL E. WARREN,

                                                       Appellant.




                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                 (D. C. No. 06-cr-00350-2)
                     District Judge: Honorable William W. Caldwell


                       Submitted under Third Circuit LAR 34.1(a)
                                  on February 6, 2009

                     Before: RENDELL and ROTH, Circuit Judges
                             and HAYDEN*, District Judge

                              (Opinion filed: June 5, 2009)




                                      OPINION




      *Honorable Katharine S. Hayden, United States District Judge for the District of
New Jersey, sitting by designation.
ROTH, Circuit Judge:

       Darrell E. Warren pled guilty to violating 21 U.S.C. § 846 (conspiracy to distribute

and possession with intent to distribute cocaine hydrochloride and 50 grams and more of

cocaine base). Warren received a 168-month prison sentence, a $1,500 fine, a $100

special assessment, and a five-year period of supervised release. He timely appealed to

this Court, and while the appeal was pending, he filed a petition for resentencing under 18

U.S.C. § 3582(c)(2) with the District Court. The District Court stayed the motion pending

this appeal. We will affirm the judgment of conviction, and we will remand this case to

the District Court to consider the merits of his § 3582(c)(2) motion.

       In the appeal of his conviction, Warren suggests that his plea was not entered into

knowingly, intelligently, and voluntarily because he thought he was pleading guilty to

Count III of the original indictment rather than Count IV of the superseding indictment.

This claim is untenable. It is clear from the transcript of the sentencing hearing that his

plea was entered in accordance with the applicable constitutional requirements of Boykin

v. Alabama, 395 U.S. 238 (1969), and the requirements of Federal Rule of Criminal

Procedure 11(b).

       Insofar as Warren claims that his appointed counsel coerced him into accepting the

plea and that he was never shown the superseding indictment, this claim is not

appropriately included in this appeal. To the extent that Warren may be alleging




                                              2
ineffective assistance of counsel, that claim should be made in a petition for post-

conviction relief.

         In connection with his sentencing, Warren contends his criminal history points were

calculated incorrectly in the pre-sentencing report. He asserts he was assigned three

criminal history points each for two prior convictions that resulted in sentences that did not

exceed one year and one month of imprisonment. See U.S.S.G. § 4A1.1(a). Although

Warren is correct that the two prior sentences initially did not exceed one year and one

month of imprisonment, they ultimately exceeded one year and one month of

imprisonment because U.S.S.G. § 4A1.2(k) directs the original term of imprisonment to be

added to any term of imprisonment imposed upon revocation of probation or parole, both

of which occurred. As such, the sentences were greater than one year and one month.

         Finally, Warren claims he is entitled to resentencing under § 3582(c)(2) because of

the change in the Sentencing Guidelines to correct the previous disparity between crack

and cocaine sentencing. This claim does have merit, as the government recognizes in its

brief.

         Accordingly, we will affirm Warren’s judgment of conviction and we will remand

this case to the District Court for consideration of his motion for resentencing under §

3582(c)(2).




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