United States District Court, W.D. Virginia, Harrisonburg Division
NORIMAN K. MOON UNITED STATES DISTRICT JUDGE.
Norman K. Moon This matter is before the court upon Defendant
Todd Andrew Herbert’s pro se motion to
amend/correct pre-sentence report and judgment. See
Docket No. 243. Herbert challenges two aspects of his
sentence. First, he argues that his juvenile record should
not have been included in the determination of his criminal
history category. Second, he requests that his time served in
New York state custody be credited against his federal
sentence as a “related” offense.
court rejects Herbert’s first claim, as there was no
error in considering his West Virginia juvenile record in
determining his criminal history category. The court has no
jurisdiction to amend Herbert’s sentence, and therefore
cannot credit his time spent in state custody against his
federal sentence. Accordingly, Herbert’s motion to
amend/correct will be denied.
September 25, 1997, Herbert was named, along with nine other
defendants, in a federal five count indictment charging
conspiracy to distribute cocaine base. Herbert was found
guilty on January 15, 1998, and was sentenced to life
imprisonment on July 10, 1998. Herbert’s criminal
history was increased two points as a result of
Herbert’s juvenile conviction in West Virginia for
possession of cocaine.
sentence of life imprisonment was subsequently reduced
pursuant to 18 U.S.C. § 3582(c)(2). In 2011,
Herbert’s sentence of life imprisonment was reduced to
360 months imprisonment. In 2015, Herbert’s sentence of
360 months was reduced to 324 months imprisonment.
Use of Juvenile Record in Computing Sentence
sentencing, the court attributed Herbert with two criminal
history points, which under U.S.S.G. Chapter 5, Part A,
equaled a Criminal History Category of II. The two points
resulted from a West Virginia state juvenile conviction for
possession of cocaine. Herbert argues that considering his
juvenile offense was error, because “under West
Virginia Code § 49-5-18(e), sealing of juvenile records
has the legal affect [sic] of extinguishing the offense as if
it never occurred.” Docket No. 243, at 1. This view is,
Applicable Federal Law
United States Sentencing Guidelines
(“Guidelines”) provide that juvenile offenses may
be considered when calculating criminal history points. Two
points are added to a defendant’s criminal history
point total for each “juvenile sentence [an offense
committed prior to age eighteen] to confinement of at least
sixty days if the defendant was released from such
confinement within five years of his commencement of the
instant offense.” U.S.S.G. § 4A1.2(d)(2)(A).
Fourth Circuit has affirmed the constitutionality of U.S.S.G.
§ 4.A1.2(d)(2)(A). See United States v.
Inglesi, 988 F.2d 500, 503 (4th Cir. 1993) (“[W]e
find no equal protection/due process violation in the use of
[the defendant’s] [state] juvenile records in
determining his criminal history for sentencing purposes
pursuant to Guidelines § 4A1.2(d)”.).
Inglesi, the defendant argued that the district
court violated his due process rights when it
“incorporated in its sentencing a due process violation
committed by the State of Ohio when it failed to perform a
statutory duty to seal the juvenile record . . . .”
Inglesi, 988 F.2d at 502. The Fourth Circuit
reasoned, however, that “[a] mere violation of state
law, standing alone, does not violate the United States
Constitution . . . .” Id. While due process
may be violated in sentencing “by the use of inaccurate
information, ” because no inaccuracy was shown, the
violation alleged did not violate due process. Id.
West Virginia code provides that juvenile records
“shall be physically marked to show that they are to
remain confidential . . . .” W.Va. Code §
49-5-104(c). Moreover, “[m]arking the juvenile records
to show they are to remain confidential has the legal effect
of extinguishing the offense as if it never occurred.”
Id. at § 49-5-104(d). Herbert argues,