United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.
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
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).
October 30, 2017, the court entered an Order, (Doc. 549),
denying Fraction's motion for reconsideration, (Doc.
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).
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.
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).
November 9, 2017, the court directed the government to
respond to Fraction's Doc. 550 motion. (Doc. 553).
being granted an extension of time, the government filed its
response to Fraction's motion. (Doc. 562).
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.
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
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). 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