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Fraction v. United States

United States District Court, M.D. Pennsylvania

June 26, 2018

MARCAL FRACTION, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM

          MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.

         I. BACKGROUND[1]

         On September 29, 2017, the court issued a Memorandum and Order, (Doc. 544, Doc. 545), denying petitioner Fraction's 28 U.S.C. §2255 motion to vacate, set aside or correct his 120-month imprisonment sentence, (Doc. 540). In his §2255 motion, Fraction requested the court to reinstate his appeal rights and re-sentence him without the career offender classification.

         On October 16, 2017, Fraction filed a motion for reconsideration under Fed.R.Civ.P. 59(e) regarding the court's September 29, 2017 Order with his Declaration attached and a brief in support. (Doc. 546, Doc. 547). On October 27, 2017, the government responded to Fraction's motion for reconsideration. (Doc. 548).

         On October 30, 2017, the court entered an Order, (Doc. 549), denying Fraction's motion for reconsideration, (Doc. 546).

         On November 3, 2017, Fraction filed a motion for leave of court to file a supplement to his motion for reconsideration and a brief in support with attached exhibits. (Doc. 550, Doc. 551). Fraction states that after he filed his motion for reconsideration he discovered the case of United States v. Glass, 701 Fed.Appx. 108 (3d Cir. July 26, 2017), that is currently pending before the Third Circuit Court of Appeals. He claims that the Glass case “is analagous (sic), if not identical in circumstance to those [he] is moving for the Court to reconsider.” (Doc. 551 at 2). Fraction contends that the Glass appeal may show that two of the three prior drug offenses used to classify him as a career offender under USSG §4B1.1(a), namely, his 2006 conviction for criminal sale of a controlled substance (PSR ¶36), and his 2010 conviction for manufacture, deliver, and possession of a controlled substance (PSR ¶38), no longer qualify as predicate offenses for career offender purposes. (See Doc. 496 at 9-10).

         Thus, Fraction states that since some of his predicate offenses may be found not to qualify for career offender purposes, “the pending appeal in Glass becomes germane to the issue [he] has requested be reconsidered by this Court.” (Id. at 3-4). Fraction states that if Glass prevails on his appeal, then he too will be entitled to relief because two of his prior drug offenses will no longer be considered requisite predicate convictions to qualify him as a career offender, which in turn will cause his sentencing range to decrease.

         Fraction concludes by stating that because the “current appeal in United States v. Glass portends to nullify a predicate used to designate [him] a Career Offender”, he requests the court to “grant him leave to Supplement his Motion For Reconsideration, and to re-instate his §2255 Petition.” He also requests the court to “hold the [§2255] petition in abeyance pending the judgment of the Third Circuit Court of Appeals” in Glass. (Id. at 4).

         On November 9, 2017, the court directed the government to respond to Fraction's Doc. 550 motion. (Doc. 553).

         After being granted an extension of time, the government filed its response to Fraction's motion. (Doc. 562).

         On February 7, 2018, Fraction filed a notice of appeal with respect to this court's September 29, 2017 Memorandum and Order. (Doc. 565). On May 23, 2018, the Third Circuit issued an Order staying Fraction's appeal until this court ruled on his motion to supplement his Rule 59(e) motion. (Doc. 577).

         II. DISCUSSION

         Fraction seeks to supplement his motion for reconsideration under Rule 59(e) regarding the denial of his §2255 motion based on an appeal pending with the Third Circuit in United States v. Glass so that he can show his prior drug offenses used to classify him as a career offender under USSG §4B1.1(a) no longer qualify as predicate offenses. Fraction asserts two arguments, to wit: the Glass case pending with the Third Circuit is a analogous to his case and if the Court rules in Glass' favor, it will require his re-sentencing without the career offender classification; and since a District Court case in the Southern District of New York found that a drug conviction for attempted criminal possession of a controlled substance under New York law, one of Fraction's prior drug convictions, does not qualify as a predicate offense under the career offender guideline, this conviction could no longer be used as a basis for Fraction's career offender classification.

         Fraction's reliance on United States v. Glass, 701 Fed.Appx. 108 (3d Cir. July 26, 2017), is not determinative since the Third Circuit has not yet decided the underlying merits of Glass' appeal and merely found that an issue raised by Glass under Hinkle was not a frivolous contention for purposes of determining whether his appellate counsel could withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).[2] In Glass, one of the convictions used by the district court to find that Glass was a career offender was his 2001 Pennsylvania State conviction for the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance, in violation of ...


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