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United States v. Baker, No. 10-1925-cr (2d Cir. January 12, 2012) (Pooler, Parker, Carney, CJJ) (per curiam)

This latest per curiam affirms an Armed Career Criminal Act (“ACCA”) sentence, rejecting the defendant’s claims that his Vermont prison escape convictions were not ACCA predicates. The statute at issue contains two distinct offenses - failure to report to custody, which is not a predicate, and escape from custody. Baker agreed that his convictions were for escape from custody, but argued that the district court should have looked beyond the charging instruments to determine whether his actual conduct posed a sufficient degree of risk to qualify.

The circuit disagreed. While a sentencing court can, and sometimes must, look beyond the charging instrument, it cannot go beyond the judicial record evidence. Where the defendant pled guilty, the offense is a predicate if the record establishes that his plea necessarily admitted elements of a predicate offense. Here the judicial record evidence established that Baker pled to an escape from custody, and the circuit held that this kind of offense categorically, “in the ordinary case,” presents a serious potential risk of injury to another, rendering it an ACCA predicate. Prisons are dangerous places and escape attempts can have “explosive consequences.” Thus, such attempts present a risk of violent confrontation that is “at least as great as that of a burglary.” Correction officers have a duty to confront and challenge an escaping inmate, which increases the likelihood of a violent encounter. Indeed, Sentencing Commission statistics reveal that more than 15 per cent of federal escapes involved force, more than 30 per cent involved a dangerous weapon, and more than 10 percent involved injury. By contrast there were no instances of injury or force in cases of failure to report or return.

PC World

As usual, sentencing issues occupy the court in its most recent pair of per curiam opinions.

In Brown v. United States, No. 09-3495-pr (2d Cir. March 1, 2011) (Winter, Livingson, Lynch, CJJ) (per curiam), an appeal of the denial of a § 2255 motion, the court rejected an argument that the Sentencing Guidelines’ treatment of prior convictions affected the application of the Armed Career Criminal Act (“ACCA”). ACCA counts predicate convictions for crimes “committed on occasions different from one another” separately, even if the offenses happened on the same day, were not separated by an intervening arrest and concurrent sentences were imposed on the convictions in a single proceeding. For ACCA, the relevant considerations are only whether the victims and locations were different, and the degree to which the offenses were separated by the passage of time.

Brown had two prior robbery convictions that, under Guidelines section 4A1.2 - which is part of the basic criminal history rules - would be treated as a single conviction because he was sentenced on them simultaneously and the offenses were not separated by an intervening arrest. Nevertheless, the two convictions were properly considered as separate ACCA predicates. “Section 4A1.2 speaks only to the calculation of criminal history points and does not bear on the calculation of Brown’s ACCA sentence.”

United States v. Akinrosotu, No. 09-2333-cr (2d Cir. February 28, 2011) (Cabranes, Chin, CJJ, Crotty, DJ) (per curiam) considers the district court’s ability to modify a fine, but does not reach a firm conclusion. At sentencing, the court had imposed a $50,00 fine - due immediately - and imposed a condition of supervised release requiring the payment of any balance that remained unpaid as of the defendant’s release from prison. Years later, the defendant, still serving his thirty-year sentence, unsuccessfully petitioned the district court for remission of the fine. Addressing a question of first impression, the court of appeals concluded that, if § 3583(e)(2), which permits the district court to modify a condition of supervised release, confers any authority to modify a fine at all, that authority is limited to the amount that remains unpaid at the commencement of the term of supervised release. Here, the prison sentence is likely to outlive the fine, since under the law applicable to Akinrosotu - since amended - the fine will expire twenty years after its imposition, but Akinrosotu will not yet be on supervised release. Thus, concluding that there will be no unpaid balance when Akinrosotu starts his term of supervised release, the court dismissed the appeal.

PC World

United States v. Brown, No. 09-4991 (2d Cir. January 5, 2011) (Calabresi, Sack, Katzmann, CJJ) (per curiam)

The court's latest per curiam holds that assaulting a correction officer, in violation of Conn. Gen. Stat. § 53a-167c(a), satisfies the "catch-all" definition of "violent felony" in the Armed Career Criminal Act. Under Circuit law, an offense qualifies under the catch-all if it is both similar "in kind" and in "degree of risk posed" to the listed offenses of burglary, arson, extortion and the use of explosives.

The Connecticut offense is similar "in kind" because it requires the offender to intentionally prevent an officer from performing his duties, primarily in a prison setting, where "the act of injuring an employee for the purpose of preventing her from performing her official duties tends to entail especially violent consequences."

As for the degree of risk posed, the court noted that the statute only applies where the officer has suffered physical injury. This "certainty" of "injury to another" clearly meets the statutory definition.

Court Reads the Riot Act

United States v. Johnson, No. 08-5245-cr (2d Cir. August 2, 2010) (Cabranes, Parker, CJJ, Amon, DJ)

In this split decision, the majority held that a conviction for the Connecticut offense of “Rioting at a Correctional Institution” is a “violent felony” under the “otherwise involves” clause of the Armed Career Criminal Act (“ACCA”).

In getting there, the majority looked beyond the statute’s title - which “suggests an obvious answer ” - to examine the conduct that the statute actually proscribes. The Connecticut statute provides that a person is “guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aides, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” Connecticut courts have “clarified” the meaning of the statute, holding that it is “specifically directed” at those who lead or plan prison disturbances and those who “follow in the proscribed activity.”

In Begay, the Supreme Court held that the “otherwise involves” clause applies only to offenses that are similar “in kind” as well as “in degree of risk posed” to the offenses that are listed in ACCA - burglary, arson, extortion, and the use of explosives.

First, for “in kind” similarity, the test is whether the conduct proscribed by the statute “typically involves purposeful, violent and aggressive behavior.” The court held that the rioting statute satisfies this test, rejecting the defendant’s argument that the statute could cover “many forms of passive and nonviolent conduct.” The court found that it was not a strict liability statute, but rather required proof of “general intent,” which satisfied the “purposeful conduct” requirement of Begay. The court also had “little doubt” that rioting at a correctional institution “typically involves” violent and aggressive conduct. In every reported decision under the statute, the conduct involved either use of a weapon or injury to another person, or both.

To the majority, it did not matter that some arguably nonviolent conduct - such as a hunger strike - might violate the statute, or that some unreported cases might have involved nonviolent conduct. Under the majority’s reading of the statute, each of the acts proscribed by the statute “typically involves violent and aggressive behavior.” To find that the Connecticut statute was not categorically violent would require a realistic probability, not a theoretical possibility, that the state would apply the statute to nonviolent conduct. But the majority found no evidence that Connecticut “regularly” applies the statute to nonviolent conduct.

The majority had an even easier time on the “degree of risk” analysis. The statute “in the ordinary case” presents a serious potential risk of injury to another because prisons are “inherently dangerous institutions” and the conduct proscribed by the rioting statute “renders confrontation with guards or other law enforcement authorities a virtual certainty.”

Judge Parker dissented. In his view, the majority incorrectly concluded that each of the acts proscribed by the Connecticut statute is violent. In fact, the statute “sweeps broadly,” punishing such nonviolent infractions as “disregarding an order to move, engaging in a work stoppage, or counseling another inmate to disobedience.” Judge Parker would have applied the “modified categorical approach” and required the government to “show what part of the statute Johnson actually violated.” To him, unless the underlying conviction had been for “actually rioting,” it is “far from obvious that such an offense” is an ACCA predicate.

Daye of the Weak

United States v. Daye, No. 08-1012-cr (2d Cir. July 10, 2009) (Miner, Raggi, Livingston, CJJ)

Bruce Daye received an 180-month ACCA sentence. On appeal, he raised challenges to the use of all of his prior convictions as ACCA predicates, and the court sent the case back for further findings.

1. Escape

One of Daye’s prior convictions was for escape, most likely under Vt. Stat. Ann. tit. 13, § 1501. At the time of his federal sentencing, circuit law provided that, categorically, all escape convictions were crimes of violence for ACCA. Thus, although defense counsel objected to the characterization of the escape as a crime of violence, the district court made no findings as to the nature of the escape, which is now dispositive under Chambers v. United States, 129 S.Ct. 687 (2009).

Here, the PSR strongly suggested that Daye’s conviction arose from failing to return from a furlough, rendering it likely that the conviction is not an ACCA predicate. Since the record is incomplete, however, the court remanded the case to the district court for consideration of whether, under Chambers, Daye’s escape conviction is an ACCA predicate.

2. Sex Abuse of a Minor

Crime of Violence

Daye also had three prior convictions for sexual assault of a child under a Vermont statute that makes it a crime to engage in a “sexual act with another person” who is “under the age of 16.” A “sexual act” includes any physical contact with the sex organs, and any act of genital or anal penetration.

The circuit concluded that engaging in an illegal sex act with a child is a crime of violence under ACCA’s “residual clause,” which covers conduct that “presents a serious potential risk of physical injury to another.” Infliction of a sexual act upon a child by an adult clearly qualifies under this section given that such offenses “typically occur in close quarters,” where the adult is older, stronger and more experienced and is likely to have coerced the child. The court also rejected the view of some other circuits that such conduct is not a crime of violence where the child, unless “particularly young,” professes to consent. The very nature of the conduct, along with the child’s relative physical weakness, will always create a “serious risk that physical injury will result.”

The court also concluded that such conduct is similar in kind to the predicate offenses that are specifically listed in ACCA. The Vermont statute, although it imposes strict liability as to the age of the victim, requires “deliberate and affirmative conduct,” and a child is typically unable to deter an adult from using coercive force.

Different Occasions?

Two of Daye’s sex abuse convictions arose from a single incident in which he took four boys blackberry picking, while the third arose from a separate incident.

An infrequently invoked provision of ACCA requires that the predicate convictions arise from acts “committed on occasions different from one another.” Under circuit precedent, acts are committed on different occasions if they do not stem from the same “criminal episode.” The relevant considerations include whether the victims were different, whether the crimes were committed at different locations and whether they were separated by the passage of time.”

Here, the district court had no occasion to consider whether Daye’s two “blackberry picking” convictions arose from crimes committed on different occasions. The circuit remanded the case for consideration of this question, as well.

Resolution of the issue is clearly important here. If, as seems likely Daye’s, escape conviction is not a crime of violence, and one of his three sex abuse convictions is knocked out because it was committed on the same occasion as another, which also seems likely, then Daye might not be subject to ACCA.

No Escape

United States v. Mills, No. 07-0308-cr (2d Cir. June 26, 2009) (Kearse, Sack, Livingston, CJJ) (per curiam)

Gary Mills was convicted of violating 18 U.S.C. § 922(g), and received a 188-month sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). But for ACCA, his statutory maximum would have been 120 months’ imprisonment.

On appeal he argued, and both the government and the court of appeals agreed, that under Chambers v. United States, 129 S.Ct. 687 (2009), his Connecticut conviction for first-degree escape was not a violent felony.

The Connecticut statute proscribes a variety of conduct, ranging from escape from a correctional institution (which probably is a crime of violence) to failing to return to a halfway house or from a furlough. Here, at the sentencing hearing, the evidence established that Mills had been released from prison to “transitional supervision.” He lived in a private residence, but was required to report regularly to a community enforcement officer. After he repeatedly failed to do so, and the officer could not locate him, Mills was charged with escape.

The government conceded that all it would ever be able to prove was that Mill’s “escape” was merely a failure to return or report. And, as the court agreed, after Chambers, a “failure to report or failure to return is not a violent felony under the ACCA.”

Restoration Drama

United States v. Bullock, No. 07-3059-cr (2d Cir. December 17, 2008) (Jacobs, Minor, Sotomayor, CJJ)

Bullock, a previously convicted felon, was convicted, after a jury trial, of possessing ammunition. He was subject to a fifteen-year mandatory minimum under the Armed Career Criminal Act (“ACCA”), and actually received a sentence of 188 months. On appeal, he argued principally that his prior convictions - three robberies - were not ACCA predicates because his civil rights had been restored. See 18 U.S.C. § 921(a)(20). Specifically, he noted that he had “been off parole for 11 years,” was “entitled to vote,” and that New York law did not restrict his right to possess ammunition.

The circuit disagreed. Restoration of civil rights has three components - the right to vote, the right to serve on a jury, and the right to hold elective office. The court agreed that Bullock’s rights to vote and hold office were “arguably” restored by operation of law under N.Y. Elect. Law § 5-106 and N.Y. Civ. Rights Law § 79. But, since Bullock was not pardoned and his prior convictions had not been “expunged,” he still did not have the right to serve on a jury in New York. Accordingly, the district court properly counted Bullock’s as ACCA predicates.

False Promise

United States v. Buie, 07-0258-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

For a drug conviction to be an ACCA predicate, it must be of an offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). David Buie pled guilty to a drug offense in New Jersey that carried a ten-year statutory maximum, but at his plea hearing the judge promised that he would not sentence Buie to more than eight years: “The [eight-year] plea bargain is the maximum. I could go under. I can’t go over.” The court of appeals rejected Buie’s argument that this promise took the conviction out of ACCA, noting that “Supreme Court precedent ... requires that we look to the definition of the offense established by the state legislature.” Moreover, this is not the type of situation where a court looks “beyond the statutory definition and fact of conviction in order to determine whether a prior offense qualifies as a predicate for ACCA purposes.” There is no exception to the “categorical approach for a case, such as this, in which the defendant pleaded guilty to an offense carrying maximum term of imprisonment [of ten years] under a plea bargain restricting the punishment to a term shorter than that specified in the statute.”

It Depends Upon What the Meaning of the Word “Is” Is

United States v. Darden, No. 06-4567-cr (2d Cir. August 15, 2008) (Cardamone, Pooler, CJJ, Keenan, DJ)

Under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), a felon-in-possession of a firearm or ammunition faces a fifteen-year mandatory minimum sentence (the maximum is life) if he has at least three prior convictions for felony crimes of violence and/or “serious” drug offenses. The statute defines “serious” drug offenses as those for which the maximum penalty that “is prescribed” is ten years or more.

These four consolidated appeals all arose from the application of this definition to defendants whose past convictions were for New York State Class C or Class B (first offender) drug felonies. Until 2005, the maximum penalty for such offenses was more than ten years. Effective January of 2005, the state reduced the maximum penalty for such offenseses to less than ten years, but the amelioration is not retroactive.

Thus, when each of these four defendants was sentenced in his federal case, the maximum sentence that “is prescribed” for at least one of his ACCA predicates offenses was at that time less than ten years, although for those particular defendants’ own offenses that was not true due to the non-retroactivity of the amelioration. Nevertheless, the appellate court held that federal sentencing courts should look to the state’s current sentencing laws in deciding whether a past drug offense can be an ACCA predicate. “The present tense signals that sentencing courts should examine the state’s current sentencing scheme.”

Nor does the fact that the state-law amelioration is not retroactive alter the analysis. The higher sentences that these defendants were exposed to was solely a function of the date of their conduct, and not of its seriousness. Thus, “in punishing the earlier timed nature of the offense more severely,” New York was not “meeting out extra punishment for the drug-trafficking offense of conviction” itself, but only for its timing. Since the “timing of the offense conduct is not part of the ofense of conviction to which the maximum term is tied for the purposes of the ACCA,” the non-retroactivity of the amelioration is immaterial.

Youthful Indiscretion

United States v. Parnell, No. 06-4551-cr (2d Cir. April 23, 2008) (Winter, Straub, Sack, CJJ) (per curiam)

In this case, the court again holds that a New York youthful offender adjudication (a “y.o.”) - here, it was for attempted burglary in the second degree - must be included in the defendant’s criminal history score under the sentencing guidelines and, where applicable, can trigger the “career offender” enhancement.

There is nothing new or surprising about this. What is interesting about this case is its strong dicta that a y.o is not a predicate under the Armed Career Criminal Act (ACCA). Indeed, the circuit cites with approval United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005) (litigated and won by this very blogger), which so held, and notes that, here, the district court followed Fernandez in declining to sentence Parnell under ACCA, a sentence, not incidentally, that the government did not appeal.

Risky Business

United States v. Lynch, No. 05-6048-cr (2d Cir. February 27, 2008) (Calabresi, Raggi, Hall, CJJ)

David Lynch received a 15-year sentence under the Armed Career Criminal Act (ACCA) and appealed. In an opinion that covered no new ground, the circuit affirmed. It held (again) that New York State convictions for attempted burglary in the third degree (N.Y. Penal Law §§ 110/140.20) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03) both involve "conduct that presents a serious potential risk of physical injury to another."

For the attempted burglary, the court reaffirmed its decision in United States v. Andrello, 9 F.3d 247 (2d Cir. 1993) (per curiam), and also noted that a recent Supreme Court case, James v. United States, 127 S.Ct. 1586 (2007), held that attempted burglary is an ACCA predicate.

Similarly, in United States v. Danielson, 199 F.3d 666 (2d Cir. 1999) (per curiam), the court held that a conviction of second-degree weapon possession, after a jury verdict, was an ACCA predicate. Here, the court rejected Lynch's arguments that (1) the rule should be different after a guilty plea and (2) that, since Lynch did not expressly admit all of the elements of the offense in his state court plea, the conviction was not covered by ACCA.

The Good Shepard

United States v. Rosa, No. 05-3621-cr (2d Cir. October 30, 2007) (Kearse, Sack, CJJ, Mills, DJ)

The Armed Career Criminal Act (ACCA) requires increased penalties for defendants in federal gun possession cases who have three prior convictions for serious drug offenses or “violent felonies.” This case concerns the “categorical approach” to determining whether a prior conviction resulting from a guilty plea was to an offense that qualified as a “violent felony.”

In 1991, Rosa pled guilty to robbery in the first degree, an offense he committed when he was 15, in violation of N.Y. Penal Law § 160.15(4), which makes it an offense to commit a robbery and display “what appeared to be” a firearm. The government contended that this conviction was an ACCA predicate as an “act of juvenile delinquency ... involving the use or carrying of a firearm.” Two other ACCA predicates were not in dispute.

The district court agreed with the government, and sentenced Rosa to the ACCA fifteen-year mandatory minimum. The circuit reversed, however, concluding that the available information did not establish that Rosa’s 1991 plea “necessarily admitted, and supported a conviction for” an offense involving a firearm, under Shepard v. United States, 544 U.S. 13 (2005). During his state court plea, all Rosa admitted was that the robbery involved “what appeared to be a firearm.” Other available documents, such as the state bill of particulars and PSR, indicated that there might have been a real gun involved, although no gun was recovered.

The crux of this decision is its discussion of the kind of evidence that a district court is permitted to consult in deciding whether a predicate conviction qualifies under ACCA, what the circuit calls “Shepard evidence.” Where the predicate resulted from a guilty plea, the Shepard decision limits the available evidence to that arising from the record of conviction, and not other materials, such as police reports. Shepard cites specifically the plea colloquy, plea agreement, or other findings of fact adopted by the defendant when entering the plea as the appropriate sources. Here, clearly, the plea allocution by itself did not establish an offense involving a firearm, and the circuit rejected all of the other sources of information relied upon by the district court.

First, it rejected the use of the state’s bill of particulars. Even though a bill of particular might be considered a charging document, the bill did not help define the crime of which Rosa was convicted, or serve to limit the charges that he could have pled guilty to. And, since Rosa’s plea allocution mentioned “what appeared to be” a handgun, the plea trumped the bill’s mention of an unrecovered real gun.

Next the court considered, and rejected, the use of the federal PSR as Shepard evidence. The federal PSR relied entirely on the state PSR, and Rosa had objected to the conclusion in the federal PSR that he was subject to ACCA.

Third, the court held that the state PSR was not Shepard evidence, even though it contained a description of the offense conduct. Even the government agreed that this document did not establish that Rosa “necessarily” pled to an offense involving a firearm. Indeed, the court concluded that the state PSR was not any more useful to the Shepard inquiry than a police report, particularly since that report drew its offense statement from the police reports themselves.

Fourth, the state sentencing transcript, even taken together with the PSR, did not satisfy Shepard. Throughout Rosa’s plea the state trial judge carefully described an offense involving “what appeared to be a firearm.” Accordingly, its offhand reference to “the gun” at sentencing could not be considered an “explicit factual finding” that there was a gun. In addition, in light of this, Rosa’s failure to object to the sentencing court’s use of the word “gun” did not qualify as an admission by silence.

Finally, the government argued that by pleading guilty to first-degree robbery, Rosa waived a statutory affirmative defense that the gun was inoperable, a defense that, if established, would reduce the charge to second-degree robbery. The court disagreed. It viewed his plea as simply an admission that the state had met its burden of establishing that he displayed “what appeared to be” a firearm, and nothing more.

Comment: This is a great decision, but there is a twist. The conviction at issue here was actually a New York State Youthful Offender adjudication (a “YO”). Rosa did not raise, and the circuit did not consider, whether YO’s can be ACCA predicates at all. This an open question in the circuit. But, in United States v. Fernandez, 390 F. Supp.2d 277 (S.D.N.Y. 2005), Judge Patterson held that a YO was not an ACCA predicate, and the government, which had agreed that this was so in the district court, did not appeal.