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United States v. Reyes, No. 10-1400-cr (2d Cir. August 29, 2012) (Katzmann, Wesley, CJJ, Underhill, DJ) (per curiam)

Closing the question left open by United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007), this per curiam opinion concludes that it was plain error for the district court to rely solely on the presentence report’s uncontested description of a prior offense in determining whether the defendant was a career offender, where the statute of conviction described some offenses that met the definition of crime of violence and some that did not. Even where the defendant does not contest the PSR’s factual description of the prior offense, the “modified categorical approach” still requires more. The PSR, after all, described only what the defendant did, not what he was convicted of. The circuit accordingly vacated the sentence and remanded for resentencing to give the government the “opportunity to introduce evidence demonstrating that” the prior conviction was indeed for a crime of violence.

One Statute, Indivisible

United States v. Beardsley, No. 11-2206-cr (2d Cir. August 27, 2012) (Newman, Straub, Lynch, CJJ)

For purposes of recidivism enhancements, the statutes underlying prior convictions can be categorized into two distinct groups. “Divisible” statutes are those that identify distinct offenses, some of which would trigger the enhancement and some would not.  “Indivisible” statutes, by contrast, identify a single offense but are worded so broadly as to encompass conduct that might or might not fall within the relevant definition.  This important decision holds that for “indivisible” statutes, the traditional “categorical approach” is the only available means of determining whether the enhancement applies. The more expansive “modified categorical approach” can only be used with divisible statutes, in an effort to ascertain which of the possible predicate offenses the defendant was convicted of.

Here, the particular enhancement was that in a child pornography statute, 18 U.S.C. § 2252A. For offenses involving the receipt of child pornography, there is a five-year mandatory minimum. But, if the defendant has a prior state conviction under a law “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor,” the mandatory minimum is fifteen years. § 2252A(b)(1). Beardsley’s prior was a New York conviction for endangering the welfare of a child under N.Y. Penal Law § 260.10. While the charging instrument in that case specified that the conduct involved “sexual contact” with an 18-month-old child, the statute itself does not mention sexual activity. It simply makes it a crime to “knowingly act[] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.”

The district court employed a modified categorical approach; by looking at the charging instrument, it concluded that Beardsley was subject to the enhanced sentence. On appeal, the circuit agreed with Beardsley that this was error. The state statute is “merely broad, not divisible.” Since it was not, itself, a state law “relating to aggravated sexual abuse,” etc., of a minor, Beardsley was not subject to the fifteen-year mandatory minimum.

The circuit took the lead from the Supreme Court’s precedents, concluding that the categorical approach - a simple examination of the way the statute defines the offense - is the preferred method. The modified categorical approach applies only where the “statute of prior conviction covers multiple subjects,” and is “the exception” to the “general rule.” The modified approach “is available only where a statute of prior conviction is divisible into predicate and non-predicate offenses.” 

The circuit has adhered to this distinction in ACCA and immigration cases “at least in practice,” and has applied the modified categorical approach “only to situations where the statute of prior conviction described qualifying and non-qualifying offenses in distinct subsections or elements of a list.” While not having had occasion to consider the enhancement in § 2252A(b)(1), the court also noted that every circuit save one has “applied the modified categorical approach only where the state statute of conviction was divisible into predicate and non-predicate offenses, and not where the state statute was merely broad.” 

The court accordingly adopted that approach here. The district court “should have limited itself to the categorical approach, because the New York statute of conviction is not divisible into predicate and non-predicate offenses, listed in separate subsections or a disjunctive list.” That the statute was “merely broadly worded, so as to encompass conduct that might match the federal predicate offenses, does not suffice.”

In fact, the language of § 2252A(b)(1) itself strongly suggests “some version of the categorical approach,” since it is predicated on “the laws of any State,” and not on the defendant’s particular actions that led to the conviction. Accordingly, the “statute underlying the prior conviction must itself relate to sexual abuse of minors for the enhancement to apply.”  Since the statute here was not a “law dealing with sexual misconduct, evidence establishing that the defendant violated that statute by a sexual act would demonstrate only how he committed the crime, but not what crime he committed.”

Savage Love

United States v. Savage, No. 06-4097-cr (2d Cir. September 18, 2008) (Pooler, Livingston, CJJ, Kaplan, DJ)

Lavon Savage pled guilty to possessing a gun. At issue was whether his offense level should be enhanced for a prior “controlled substance offense,” based on his conviction under Connecticut General Statute § 21a-277(b), which makes it a crime to, inter alia, sell a controlled substance. Connecticut defines the “sale” of a controlled substance as “any form of delivery, which includes barer, exchange or gift, or offer therefore.” This definition is broader than the guideline definition of “controlled substance offense,” which does not include offenses involving the mere offer of a controlled substance.

The circuit concluded that Savage should not have received the enhancement. It agreed that the Connecticut statute criminalizes conduct - an offer to furnish drugs - that falls outside the guideline definition of “controlled substance offense.” Moreover, under the limitations of the “categorical” approach to recidivism enhancement, the government failed to show that Savage’s conviction “necessarily” rested on a fact that would put it within the guideline definition.

First, Savage entered an Alford plea, and thus did not confirm the factual basis for the plea. Given this, the government could not “rely on any factual admissions during the plea colloquy to establish the predicate nature of Savage’s conviction.” Nor was there anything else in the colloquy that would narrow the charge. Although the colloquy indicated that Savage was pleading guilty to a “sale,” that did not suffice, since a sale includes an offer. And, while Savage himself mentioned that “someone else gave” the drugs to the undercover officer, this did not establish that Savage understood he was charged specifically with exchanging drugs for money. All Savage was doing was contesting the state’s version of the facts. His “offhand remarks” did not “define the nature of the conviction” or establish the specific theory of his culpability.

Finally, the government conceded that charging document, which simply indicated that Savage pled to “Sale of a Controlled Substance ... in violation of” the statute described above, did not narrow the charge to include only conduct that would fall within the guideline definition.

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.