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United States v. Herbert

United States District Court, W.D. Virginia, Harrisonburg Division

June 21, 2016

United States of America
v.
Todd Andrew Herbert Defendant.

          MEMORANDUM OPINION

          NORIMAN K. MOON UNITED STATES DISTRICT JUDGE.

         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.

         The 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.

         I. Background

         On 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.

         Herbert’s 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.

         II. Use of Juvenile Record in Computing Sentence

         At 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.”[1] Docket No. 243, at 1. This view is, however, mistaken.

         A. Applicable Federal Law

         The 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).

         The 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)”.).

         In 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.

         B. Discussion

         The 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 ยง 49-5-104(d). Herbert argues, ...


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