Friday, November 02, 2007

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.

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