Wednesday, September 28, 2005

Condition of Supervised Release Prohibiting Unauthorized Contact between Defendant and His Son Vacated for Lack of Factual Bases

United States v. Duane Arthur Myers, Docket No. 04-3498-cr (2d Cir. September 27, 2005) (Sotomayor, Raggi, Hall): This is yet another decision in a long line of cases evaluating the propriety of an intrusive condition of supervised release imposed by a district court on a kiddie porn offender. Readers should consult the opinion themselves to determine whether our evaluation is correct: What a terribly convoluted non-solution to a relatively simple problem!

Here, the district court imposed a 78-month sentence and a number of special conditions of supervised release prohibiting the defendant -- convicted of receiving sexually explicit photos from an underaged girl in Colorado -- from unsupervised contact with underaged children. Myers did not challenge these conditions. The court also imposed a special condition prohibiting Myers from having any contact with his 5-year-old son without the prior approval of the Probation Officer. The court clearly did so because of (1) the nature of the offense of conviction and (2) the defendant's prior misdemeanor conviction for fondling the 8-year-old niece of a former girlfriend. However, there was no evidence whatsoever that the defendant was interested in underaged males, or that he posed a threat of any kind to his own five-year-old son. Myers challenged solely this condition, arguing that nothing justified a restriction on his right to see his own child.

The law governing special conditions of supervised release is clear. Such conditions will be upheld only if they are (1) reasonably related to the nature of the offense or the offender, and to the goals of sentencing, and (2) impose no greater deprivation of liberty than is reasonably necessary to achieve those ends. 18 U.S.C. § 3583(d). As we see it, neither prong is satisfied here. Nothing supports the belief that Myers posed a threat to his own son, and preventing him from seeing the child obviously infringes upon his liberty interest in having a relationship with his son.

Unfortunately, the Court did not see things so clearly. Rather, it concludes that remand for further fact-finding is required -- on both prongs of the § 3583(d) analysis, no less. First, the Court concludes somehow that the record is unclear as to "the goals of the challenged condition." As the Court sees it, while "[t]here is reason to believe the court designed the condition to protect Myers's child," there is "also reason to believe the condition was intended to protect other children with whom Myers might come into contact during visits." Op. at 14. While the latter "is clearly related to a legitimate sentencing goal," id., the former is not on the existing record. As the Court admits, "The government offered no evidence to show that Myers's child, a male, was in any danger from his father. The evidence in the record does not show . . . how the condition will deter misconduct toward that child if that is indeed its goal." Op. at 15. However, since it isn't clear from the record which purpose the condition sought to fulfill, remand for additional clarification was required.

Second, the Court concludes that it could not determine on the basis of the existing record whether Myers in fact has a liberty interest in seeing his own son, since the child is in foster care and thus a ward of the state at the present time (due both to Myers's conviction and the mother's neglect). While Myers asserts that he has a Due Process right to see his son, the Court wasn't so sure of this in light of the facts and the relevant state law. After broadly surveying the law on the extent of parental visitation rights over children born out of wedlock and in foster care, the Court concluded that the uncertainty in the record concerning Myers's current rights vis-a-vis his son -- pending resolution by the New York family court -- also requires a remand for further fact-finding. Op. at 18-19.

While we disagree with both of the Court's conclusions, we wholeheartedly agree with the sentiment buried in the final footnote of the opinion:

"On remand, the parties may wish to address how a special condition relating to Myers's contact with his own child may affect or otherwise interrelate with any state proceedings or orders relating to Myers's custodial or visitation rights. Because 'domestic relations law is almost exclusively the province of the states,' Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004), a federal court properly proceeds cautiously in concluding that the responsible supervision of a criminal defendant requires conditions with respect to a parent's access to a child that are different from or in addition to those ordered by a state court."

Op. at 20. District judges should take this advice to heart. Meddling in affairs and relationships governed by state law, in an area in which federal courts possess neither experience nor expertise, almost always leads to clumsy and heavy-handed solutions.

Blakely / Booker Challenge to Safety Valve Rejected on Narrow Ground

United States v. Hector B. Ramirez, Docket No. 03-1280 (2d Cir. September 27, 2005) (Sack, Katzman, Parker): This case rejects a Sixth Amendment, Blakely/Booker-based challenge to the statutory safety valve provision, 18 U.S.C. § 3553(f) (permitting a court to impose a sentence without regard to otherwise applicable statutory minimum if defendant meets a number of conditions), on a narrow ground involving the Almendarez-Torres exception to the Apprendi rule. It thus leaves open the possibility of a future Sixth Amendment challenge to § 3553(f) based on grounds apart from "the fact of a prior conviction," for instance the denial of safety-valve eligibility based on a determination that the defendant qualified as an organizer or leader under the Guidelines. See id. § 3553(f)(4). The decision also does not discuss the implication of Booker on the application of Sections 2D1.1(b)(7) and 5C1.2 of the Guidelines, which authorize a district court to decrease the offense level by 2 if the same safety valve criteria listed in § 3553(f) are satisfied.

The essential facts are simple. Ramirez pled guilty to conspiring to distribute 5 kilograms or more of cocaine, thus triggering a 10-year minimum sentence under 21 U.S.C. § 841(b)(1)(A). He presumably allocuted to the (b)(1)(A) quantity, since the 10-year minimum would not otherwise not be in play in light of the Court's recent decision in Gonzalez). The PSR determined that Ramirez had 2 criminal history points under Chapter 4 of the Guidelines, and he did not disagree. Under § 3553(f), a defendant is eligible for the safety valve only if s/he, among other things, "does not have more than 1 criminal history point, as determined under the sentencing guidelines." Id. § 3553(f)(1). Ramirez therefore was not eligible for safety valve relief and was sentenced to 10 years.

On appeal, Ramirez argued that in light of Booker, the district court should have treated either the determination (via Chapter 4 of the Guidelines) that he had 2 criminal history point, or § 3553(f) itself, or both, as advisory. The Circuit rejected these arguments.

First, the Court (citing Crosby) concluded that even after Booker, a sentencing court is required to compute the proper Guidelines sentence, including the number of criminal history points accrued by the defendant. In making these "internal" Guidelines determinations, a court must abide by the dictates of the Guidelines, even if, at the end of the process, the Guidelines range is only advisory. Thus, the sentencing court could not simply ignore as "advisory" the Guidelines' determination that Ramirez had 2 criminal history points. Op. at 5-6.

Second, the Court narrowly concluded that nothing in Booker requires treating § 3553(f) itself as advisory when, as here, the element rendering the defendant ineligible for safety-valve relief concerns his prior convictions. Since the denial of safety-valve relief in this case rested solely on "the fact of [Ramirez's] prior convictions," and since Almendarez-Torres is still good law, no Sixth Amendment concern is implicated. As the Court explained,

"No portion of the defendant's punishment depends on facts, other than facts of prior convictions, that have not been authorized by a plea of guilty or a jury verdict. There is therefore no constitutional bar to a legislative instruction to a judge to sentence the defendant to such a mandatory minimum where, as here, the defendant is ineligible for safety valve relief based on the court's finding that he had more than one criminal history point."

Op. at 8. Emphasizing its narrow basis, the opinion concludes by specifically cautioning that "[w]e leave for another day whether the denial of safety valve relief based on judge-found facts as to any of the other section 3553(f) grounds might ever violate the Sixth Amendment." Op. at 9.

A sliver of hope thus remains, since the Court could have ruled as a general matter that the safety valve implicates no Sixth Amendment concerns simply because no judge-found fact increases the defendant's sentence under this provision. See, e.g., United States v. Payton, 405 F.3d 1168 (10th Cir. 2005) ("Nothing in Booker's holding or reasoning suggests that judicial fact-finding to determine whether a lower sentence than the mandatory minimum is warranted implicates a defendant's Sixth Amendment rights.") (emphasis in original). Given the narrowness of Ramirez, however, a Sixth Amendment challenge to a court's determination of safety-valve ineligibility based on a finding that, for instance, the defendant qualified as a leader or organizer under the Guidelines remains open. (For a sophisticated argument attacking the safety valve on Blakely grounds, see the article by Jon Sands and Jane McClellan in the Federal Sentencing Reporter).

The decision also does not address the application of the Guidelines safety valve provision, found in § 5C1.2. Under § 2D1.1(b)(7), a defendant who satisfies the § 5C1.2 criteria -- identical to the § 3553(f) statutory criteria -- is entitled to a 2-level reduction to his or her offense level, regardless of whether a statutory minimum sentence is at issue. For instance, if Ramirez had not pled to to the (b)(1)(A) offense and was not subject to any statutory minimums, he could still argue, even after this decision, that the sentencing court (1) should have treated the Guidelines' determination that he had 2 criminal history points as merely advisory in light of Booker, and thus (2) could have awarded him the 2-level reduction under §§ 2D1.1(b)(7) & 5C1.2 even though he technically had more than 1 criminal history point.

Tuesday, September 20, 2005

A Good Lesson on the Limits of the "Protective Sweep" Exception to the Warrant Requirement

United States v. Edward Gandia, Docket No. 04-6477-cr (2d cir. Sep. 19, 2005) (Straub, Sack, and Kravitz, D.J.): Yet another fine opinion by Judge Sack, this time reversing the district court's order denying Mr. Gandia's motion to suppress evidence seized as the result of a "protective sweep" of the defendant's apartment. Although no new legal ground is broken, the opinion serves as a reminder to all that the "protective sweep" exception to the warrant requirement, recognized in Maryland v. Buie, 494 U.S. 325 (1990), does not automatically allow the police to ramble through a suspect's home to look for 3rd parties whenever the police are present in the home; rather, such sweeps are permitted only where police have "a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Id. at 336. The opinion also contains some good dicta on an open issue in this Circuit, one on which the other Circuits have split: Whether a protective sweep is permitted only when the defendant has been arrested in his home, or whether such a search is allowed even when the police are present in the defendant's home solely by his consent.

The essential facts are thus. Three officers arrived at an apartment building in response to a complaint that there was a dispute between a tenant and the superintendent, and that one of these men "might be wielding a gun." Op. at 4. Gandia was the tenant and fit the description of the person described as possibly having a gun. Gandia and the super were both in front of the building when the police arrived.

Gandia denied having a gun but was frisked anyway. No gun was found. Gandia also told the police that he lived by himself in an apartment in the building.

The officers then asked Gandia if they could speak with him in his apartment, rather than outside in the rain. Gandia agreed and let the officers into his kitchen, which was right inside the door. While Gandia spoke with two of the officers in the kitchen, the third officers -- apparently without Gandia's knowledge or notice -- ambled into the adjacent living room and found, allegedly in plain view, a bullet. He then went into the adjoining bedroom and saw a poster depicting different kinds of bullets.

Based primarily on the bullet and the poster, the police obtained a search warrant for Gandia's apartment. A gun and additional ammo were found, and he was prosecuted under § 922(g), the felon-in-possession statute.

Gandia moved to suppress the evidence found through the search warrant, contending that the warrant was invalid because it was based upon evidence obtained through an unlawful search. Specifically, he argued both that (1) Buie did not authorize a protective sweep in this case because the police were in Gandia's home by his consent, and not to arrest him; and (2) even if Buie applied to this case, the sweep was unauthorized because the officers had no reason to believe that the apartment harbored a 3rd party posing a danger to them. The district court denied the motion to suppress, and Gandia was convicted after a stipulated bench trial.

The Circuit reversed on ground (2), thus declining to reach ground (1). [NB: This is the same maneuver used by the Court in United States v. Moran Vargas, 376 F.3d 112 (2d Cir. 2004), a great win by Michael Weil of this Office]. Even assuming that a protective sweep is permissible outside the arrest warrant context, the Court emphasized that Buie does not automatically allow the police to look through other parts of the defendant's home. Rather, the protective sweep, justified solely by the potential presence of "unseen third parties in the house" who may pose a danger to the police, is permissible only when "supported by articulable facts that would cause a reasonable officer to believe the area [sweeped] might harbor other people who might pose a danger to the officers." Op. at 17. As the Supreme Court cautioned in Buie, 494 U.S. at 336: "The type of search we authorize today . . . is decidedly not 'automatic,' but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Thus, "[o]fficers must point to facts which give rise to an individualized suspicion and cannot rely solely on generalizations that suspects are usually accompanied by dangerous third parties." Op. at 18.

Here, no facts justified such a suspicion. As the Court explained, although the facts may "support a reasonable inference that Gandia was hiding a gun in the apartment, we do not see how they support the inference that there was a person hiding in the apartment who might use it." Op. at 18. And "any concern that Gandia himself might be dangerous was fully and permissibly addressed by frisking Gandia, and by a search within his 'grab area.' . . . The search of an adjoining room to which Gandia had no ready access was unnecessary for this purpose." Id.

Finally, the Court adds some good dicta regarding the issue raised but not resolved -- i.e., whether a protective sweep is authorized even when the police are not present in the defendant's home pursuant to an arrest warrant but through his consent -- suggesting its disapproval of this "expan[sion]" of Buie. Op. at 14. First, the Court points out that Buie itself specifically defined a "protective sweep" as "a quick and limited search of premises, incident to an arrest,"494 U.S. at 327 (emphasis added), and that Buie occurred in the "context of a physical entry to execute an arrest warrant." Op. at 14. Second, the Court noted a potential problem with allowing the police to conduct such sweeps even when they are present in the home on the defendant's consent: "[W]hen police have gained access to a suspect's home through his or her consent, there is a concern that generously construing Buie will enable and encourage officers to obtain that consent as a pretext for conducting a warrantless search of the home." Op. at 15. Indeed, the Court used the facts of this case to illustrate the likelihood of pretext, given that the police had no reason to enter Gandia's home in the first place. This refreshing recognition of real-world police practices offers hope that, in the next case that comes down the pike, the Court will limit Buie to the context of arrest warrants.

Friday, September 16, 2005

Court Must Give Reasons for Imposing Sentence Outside Advisory Chapter 7 Range

United States v. Myrisa V. Lewis, Docket No. 04-4105-cr (2d Cir. Sep. 15, 2005) (Feinberg, Sack, Katzmann): This is a well-reasoned and interesting opinion by Judge Sack -- and another good win by Ed Zas of this Office (see here for Ed's other win this month). The decision holds that a district court must state its reasons for imposing a sentence that is outside the advisory Chapter 7 range for revocation of supervised release or probation, a holding that obviously has broader implications given that the governing statute applies to all sentences, whether imposed upon revocation or upon conviction. The decision also contains an interesting discussion of the still-unsettled issue of whether standard plain error analysis, or a more "relaxed" form of plain error review, is applicable to errors occurring at sentencing.

The essential facts are simple. While on supervised release, Ms. Lewis tested positive for drug use on numerous occasions, missed several appointments with her probation officer, and flunked out of drug treatment. She admitted to drug use as a violation of supervised release. The applicable Chapter 7 range was 3 to 9 months. Probation recommended a sentence within the range. The Government did not request a particular sentence.

The court then imposed a sentence of 24 months. It gave no reason to justify the sentence at sentencing. Nor did it provide a written statement of reasons for the sentence on the judgment of conviction. The defendant did not object to the court's failure to state reasons.

On appeal, Ms. Lewis argued that the court violated both 18 U.S.C. § 3553(c), requiring a court to "state in open court the reasons for its imposition of the particular sentence," and § 3553(c)(2), requiring a court, when imposing a sentence outside the applicable sentencing range, to state "the specific reasons for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and commitment." The Court agreed with both arguments, and vacated the sentence and remanded for further proceedings.

As the Court points out, Section 3553(c) was left intact by Booker's excision of § 3553(b)(1). And while a court need not explain its reasons for imposing a particular sentence with great deal of specificity, "[s]tating no reasons at all 'plainly' falls short of the requirement to state reasons that is set forth in § 3553(c), no matter what the level of 'specificity' may be." Op. at 12.

The Court also rejected the Government's argument that it should affirm nonetheless simply because the 24-month sentence is reasonable. Relying on the concept of "procedural unreasonableness" set forth in cases such as Crosby and Selioutsky (that a sentence, even if reasonable as to length, may be unreasonable "because of the unlawful method by which it was selected," Crosby, 397 F.3d at 115), the Court concluded that "a sentence imposed without complying with the requirements of the still-applicable provision of 18 U.S.C. § 3553(c)(2) constitutes error, even assuming that its length is reasonable." Op. at 14.

The opinion also contains an interesting discussion of the plain error standard, given that the defense counsel failed to raise an objection based on 3553(c) or (c)(2) at sentencing. It notes, first, that the form of plain-error review applicable to purely sentencing errors is still unsettled in the Circuit. While some cases have applied a straightforward version of the 4-part Cotton plain error test to such errors, others have applied "a less stringent standard" when reviewing unpreserved sentencing errors, e.g., United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (noting that "in the sentencing context there are circumstances that permit us to relax the otherwise rigorous standards of plain error review to correct sentencing errors"). While this opinion does not resolve the issue, finding that plain error was shown even under the more rigorous version, it strongly suggests that Sofsky's "relaxed form" of plain error analysis is appropriate for errors occurring solely at sentencing. See Op. at 18.

And in conducting the standard form of plain error review, the Court interestingly concludes that an error of the sort at issue here -- i.e., the court's failure to explain the reasons for its sentence -- is akin to a "structural" error defying standard "harmlessness" or "prejudice" analysis. Op. at 17-18. Indeed, the Court analogizes the "right" awarded by 3553(c) to the defendant's right to the public's presence at sentencing -- which is of course a structural error for which prejudice need not be shown, see Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984). Op. at 15, 17-18. Thus, although the Court acknowledges that "it seems unlikely that a court's failure to state its reasons for imposing a particular sentence would . . . 'affect' the sentence imposed," it concludes that the defendant's "substantial rights" were affected by the 3553(c) error and vacated the sentence.

Thursday, September 15, 2005

The Nullification Power Curtailed Again: Jury Can Be Told that It Must Convict if Government Proved Guilt beyond a Reasonable Doubt

United States v. Sean Carr, Docket No. 04-0546-cr (2d Cir. Sep. 14, 2005) (Feinberg, Sack, and Katzmann) (Op. by Sack): Despite its glorious role in our early history, the jury's power of nullification has long been viewed with great disfavor by the Circuit. In this decisions, the Court clarifies that a district court does not error when it affirmatively tells the jury that it has "the duty to convict" if it finds that the Government has proved the defendant's guilt beyond a reasonable doubt. This outcome should not come as a great surprise, given that a trial court is not required to inform a jury of its power to nullify, e.g., United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996), and given the Court's general view of nullification as a lawless and regrettable exercise of naked power, e.g., United States v. Thomas, 116 F.3d 606, 608 (2d Cir. 1997). And to anyone who has practiced in the local district courts, the "duty to convict" language is familiar fare.

The decision also contains an interesting discussion of the jury unanimity requirement for finding predicate acts under the RICO statute. Although the law is clear that (1) the defendant must commit at least two predicate acts to satisfy the "pattern of racketeering activity" requirement under the RICO statute, and (2) the jury must agree unanimously on each predicate act (and must agree on two such acts) to convict the defendant, the law is apparently quite unclear as to what sort of unanimity is required for acquittal (as opposed to a hung jury). Specifically, the question arose during the jury's deliberation as to whether, in order to acquit the defendant, the jury must unanimously agree, on each predicate act, that the Government had not proven its existence beyond a reasonable doubt, or whether it is sufficient for acquittal that the jury unanimously agreed, as a general matter, that the Government had not proven the existence of two predicates, even if the jurors disagree as to which predicates had been proven and which had not.

The district court told the jurors that they had to examine each of the predicate acts individually and separately, and decide unanimously whether the Government had proven or not proven its existence beyond a reasonable doubt. And to return a "not guilty" verdict, they had to unanimously agree that two of the three alleged acts had not been proven. If the jury unanimously agreed only as a general matter that the Government had not proved the existence of 2 of the 3 acts, but were not unanimous as to which were proven and which were not, then the jury should merely declare itself at an impasse.

The Circuit expressed grave doubt about this instruction: "We have our doubts . . . as to whether, had the jury agreed unanimously that the government had failed to prove two of the predicate acts beyond a reasonable doubt, without agreeing specifically as to which two had been 'not proved,' it should necessarily have reported itself as being at an impasse, rather than returning a verdict of acquittal." Op. at 20. As it explained,

"The fact that the jury 'must agree unanimously and separately' as to every element of an offense, . . . in this case two predicate acts, in order to convict may or may not imply that the jury 'must agree unanimously and separately' that the government had not proven its case beyond a reasonable doubt as to two specific predicate acts in order to acquit."

Op. at 21 (emphases in original).

The Court ultimately did not resolve this question, however, because under the particular circumstances of the case, any "error plainly had no effect on the verdict." Op. at 21. This was so because the questionable charge was delivered in response to a jury's question, toward the end of deliberations, as to what it should do given that it has unanimously agreed on two predicates but had not yet done so on the third. Thirty minutes after the charge was given, the jury returned a guilty verdict that included a specific finding that each of the 3 RICO predicates had been proved. Under these circumstances, the Court concluded, any error in the Court's instructions on the type of unanimity required for acquittal could not possibly have prejudiced Carr.

Wednesday, September 14, 2005

Circuit Vacates Judgment of Acquittal in Structuring Case

United States v. William MacPherson, Docket No. 04-4825-cr (2d Cir. September 13, 2005) (Op. by Raggi): In this decision, the Circuit vacates a judgment of acquittal entered by Judge Johnson in the E.D.N.Y. following a jury verdict convicting MacPherson -- an NYPD officer -- of structuring currency transactions to avoid reporting requirements, in violation of 31 U.S.C. § 5324(a)(3). The Circuit found that there was enough circumstantial evidence to sustain the jury's finding that MacPherson had the requisite mens rea when he made 32 separate cash deposits, none exceeding the $10,000 trigger for a CTR filing and totalling about $250,000 over a four-month period, ruling that "a pattern of structured transactions, . . . may, by itself, permit a rational jury to infer that a defendant had knowledge of and the intent to evade currency reporting requirements." Op. at 25.

Given the facts as recited by the opinion and the exceedingly low standard for sustaining a jury verdict, it is difficult to quarrel with the Court's conclusion. The case is nonetheless peculiar in that (1) the money in question did not come from illegal activity, and (2) the defendant had no apparent motive for wishing to avoid CTR filings. These circumstances of course do not immunize the defendant from prosecution -- the governing statute does not require that the relevant funds derive from criminal activity, and motive is of course not an element of the crime. Nonetheless, MacPherson seems an atypical target for a structuring prosecution.

Monday, September 12, 2005

Circuit Continues Down the Wrong Road: New York YO Adjudication Qualifies as "Adult Conviction" under Career Offender Guideline

United States v. Brian Jones, Docket No. 04-2506-cr (2d Cir. July 19, 2005): This is a decision from July that we missed before taking our summer hiatus. Guest blogger Darrell Fields of the Appeals Unit of the Federal Defenders in NYC provides the following analysis of this important decision.

In United States v. Jones, 415 F.3d 256 (2d Cir July 19, 2005) , the Circuit held that a New York State youthful offender adjudication ("YO") qualifies as an "adult conviction" under the Career Offender Guideline (U.S.S.G. § 4B1.1), even though (1) Guidelines commentary specifically provides that a conviction sustained before age 18 will be deemed an "adult conviction" only "if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted," id. § 4B1.2, comment. (n.1), and (2) New York State clearly does not so classify a YO adjudication. The unfortunate outcome in Jones was largely preordained, resting as it does on a series of prior decisions in the Circuit permitting the use of New York YO adjudications as prior convictions for an assortment of Guideline calculations. See United States v. Cuello, 357 F.3d 162 (2d Cir. 2004) (YO adjudication can be used for calculating base offense level under the firearms Guideline, § 2K2.1); United States v. Reinoso, 350 F.3d 51 (2d Cir. 2003) (same for calculating base offense level under the illegal reentry Guideline, § 2L1.2); and United States v. Driskell, 277 F.3d 150 (2d Cir. 2002) (same for calculating the criminal history category under § 4A1.1); see also United States v. Mathews, 205 F.3d 544 (2d Cir. 2000) (a YO adjudication is not an expunged conviction).

As noted, the problem with Jones is that the Career Offender Guideline provides explicitly that the relevant question is not how federal courts regard a New York YO, but whether New York itself "classifie[s]" a YO adjudication as an adult conviction. See U.S.S.G. § 4B1.2, comment. (n.1) (conviction incurred before age 18 constitutes an adult conviction only "if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted") (emphasis added). Thus, the plain language of the Guidelines requires that a YO be "classified as an adult conviction under the laws of [New York]" in order for it to be used as a predicate conviction for determining Career Offender status.

Jones, however, relied solely on federal court cases, principally the four Second Circuit cited above, in reaching its conclusion. Tellingly, Jones cites not a single New York state case; it rests instead on a sort of federal common law view of whether a New York YO should be considered an adult conviction by federal courts.

Rather than defer to how New York classifies YO adjudications, the Circuit used its own definition of adult conviction. It stated that, pursuant to its decision in Cuello, it would follow a "pragmatic approach" under which "[']classification as an adult conviction under the laws of New York['] does not mean we look to whether New York calls it a conviction, but rather, that we look to the substance of the proceedings." 415 F.3d at 263. It thus considers "the substantive consequence of the criminal proceeding underlying the youthful offender adjudication" to determine whether, in its view, the defendant was prosecuted and sentenced as an adult. Id. at 264. The Circuit found that Jones’s YO convictions "should be deemed ‘adult convictions’" because he pled guilty "in an adult forum" to both offenses and "received and served a sentence of over one year in an adult prison for each offense." Id. at 264.

Looking to New York law, as required by the Guidelines commentary, would have yielded a different result. Under New York law, once a teenager is adjudicated a YO, the teen is no longer convicted of a crime. The state’s highest court has held that a youthful offender adjudication "has the practical and legal effect of a reversal[.]" People v. Floyd J., 61 N.Y.2d 895, 897, 474 N.Y.S.2d 476, 477 (N.Y. 1984). And New York’s legislature has specified that a "youthful offender adjudication is not a judgment of conviction for a crime or any other offense[.]" N.Y. Crim. Proc. Law § 720.35(1). In addition, New York courts have ruled that

- a youthful offender adjudication does not qualify as a predicate conviction under New York’s recidivist sentencing scheme. People v. Kuey, 83 N.Y.2d 278, 285, 609 N.Y.S.2d 568, 571 (1994) ("Under New York law, the court is prohibited from using a prior youthful offender conviction as a predicate");

- "[s]ince a youthful offender adjudication is not a conviction for a crime, it may not be shown to affect the witness’s credibility." People v. Cook, 37 N.Y.2d 591, 595, 376 N.Y.S.2d 110, 113 (1975); and

- a person receiving a youthful offender adjudication is not required to pay New York’s "mandatory surcharge," otherwise assessed upon every conviction of a crime, Floyd J., 474 N.Y.S.2d at 477.

Moreover, a YO does not disqualify a person "so adjudged" from holding "public office or public employment" or from "receiv[ing] any license granted by public authority[.]" N.Y. Crim. Proc. Law § 720.35(1).

Wednesday, September 07, 2005

Drug Quantity Must Be Alleged in Indictment for Defendant to Be Sentenced to More than 20 Years, even if Defendant Allocutes to Specific Quantity

United States v. Cordoba-Murgas et al., Docket No. 04-3131-cr (L) (2d Cir. Sep. 7, 2005) (Op. by Cabranes): A great decision by the Circuit, and a hard-fought win by Ed Zas of this Office. In this opinion by Judge Cabranes, the Circuit rules that in light of drug quantity's status as an element of the § 841(a) offense, a defendant cannot be sentenced to more than 20 years' imprisonment when the indictment (charging an offense under 21 U.S.C. § 841 et seq.) does not allege a particular quantity, even where the defendant specifically allocuted to distributing a quantity of drugs sufficient to trigger one of the aggravated offenses under § 841(b). Although such an allocution effectively waives the 6th Amendment requirement of submitting the quantity decision to the jury, e.g., United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002), it does not waive the 5th Amendment grand jury / indictment right. Cordoba's sentence of 262 months, exceeding the 240-month maximum for drug offenses not involving a specific quantity, was thus unlawful.

The decision rests primarily on the rule that "the absence of an indictment constitutes a jurisdictional defect and cannot be waived by a guilty plea," Op. at 7, a principle long established in the Circuit. See United States v. Macklin, 523 F.2d 193, 196 (2d Cir. 1975). Here, although there was an indictment, "there [was] no valid indictment for the crime for which Corboba was convicted" and sentenced, since it did not allege a specific quantity of drugs. Op. at 9 (emphasis in original). As the Court explains,

"[A] violation of 21 U.S.C. § 841(a) with no specified quantity of drugs constitutes a different crime than 21 U.S.C. § 841(a) with a specified quantity of drugs, and the applicable statutory penalties vary accordingly. By sentencing Cordoba to a term of imprisonment longer than twenty years, the District Court effectively convicted him of a crime for which he had not been indicted. [And] pursuant to Macklin, the guilty plea settling the issue of quantity cannot serve as a waiver."

Op. at 9. The Court thus concludes that "when a defendant is indicted for a violation of 21 U.S.C. § 841 without a specified quantity of drugs, the defendant's allocution to a particular quantity cannot serve to waive the failure to indict him for the separate crime of violation of § 841 with a particular quantity of drugs. Accordingly, the defendant cannot be sentenced to a term of imprisonment greater than the statutory maximum set forth in § 841(b)(1)(C) for violation of § 841(a) without a specified quantity." Op. at 7.

Friday, September 02, 2005

Prison Disciplinary Proceeding, Following a Criminal Conviction for Same Misbehavior, Does Not Violate Double Jeopardy

Andre Porter v. Thomas A. Coughlin, III, et al., Docket No. 03-0273 (2d Cir. August 31, 2005) (Op. by Sotomayor): No new ground is broken in this opinion, which simply re-affirms the Second Circuit's earlier decision in United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir. 1995), holding that a criminal prosecution and a prison disciplinary proceeding based on the same conduct do not implicate double jeopardy concerns. The prisoner here, Porter, argued that Hernandez-Fundora was no longer good law in light of the Supreme Court's decision in Hudson v. United States, 522 U.S. 93 (1997), which adopted a somewhat different analysis for determining whether a subsequent sanction is to be deemed "criminal" or "civil" for purposes of the Double Jeopardy Clause. The Circuit rejected Porter's argument, finding that even under the Hudson mode of analysis, the sanction imposed for his violation of prison disciplinary rules (3 years in the SHU), based on the same conduct (possessing a knife in prison) underlying a criminal conviction (for which he received a 3 to 6 year sentence, consecutive to whatever sentence he was then serving), was not a "criminal punishment" for double jeopardy purposes.