EDNY Judge Holds that Youthful Offender Adjudication Does Not Trigger Gun Guideline Enhancement
Those youthful offender adjudications may seem like a good deal at the time, but years later, when they count as a defendant’s first or even second strike in the high stakes world of criminal sentencing, buyer’s remorse will certainly set in. Under Second Circuit law, for example, a youthful offender adjudication for drugs or violence may be classified as an “adult conviction” yielding a higher offense level under the gun guidelines, if the offense “is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.” What this means is quite nebulous in theory, but in practice, often leads to whopping increases in applicable sentencing guidelines. Thanks to some very effective advocacy by Eric Creizman and fair-minded sentencing by EDNY Judge Johnson, we have an important precedent in United States v. Valle, 08 Cr 281, that holds that sometimes a youthful offender adjudication is just a youthful indiscretion, not an adult enhancer.
Issue
Valle pled guilty to selling guns without a license. He had a Youthful Offender (“YO”) adjudication in New York for robbery when he was 16 years old. Under the applicable guideline, USSG § 2K2.1, there is an enhancement of the base offense level if the defendant committed the offense subsequent to sustaining a felony conviction of a crime of violence or a controlled substance offense. Under the commentary to the guideline, felony means “adult conviction.” In turn, that includes an offense committed prior to age 18 if “it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.”
Under New York law, a YO adjudication is not a “conviction.” But that hasn’t stopped the Second Circuit from saying that it can be an “adult conviction” because technically, before the disposition is deemed a youthful offender adjudication, the defendant is convicted of an adult crime, and then, in the judge’s discretion, the judge may grant the offense youthful offender status. The Second Circuit has held that courts must “examine the substance of the prior conviction at issue,” focusing on “the nature of the proceedings, the sentences received, and the actual time served.” In each and every case where it has been presented with the question of whether a YO adjudication is an “adult conviction,” the Second Circuit has sided with the government. The Second Circuit has basically relied on the fact that the youthful offender was tried in an adult forum, for an adult crime, and served time in an adult prison.
Valle qualified for the first two, but was sentenced to probation for his YO adjudication. The defense argued that this factor weighed heavily in favor of a finding that the adjudication was not an “adult conviction” because an adult convicted of the same crime would not have qualified for probation under the New York Sentencing Guidelines. In fact, Valle was only eligible for probation because he was a youthful offender. There is an unpublished Second Circuit opinion that appears to squarely reject this argument (United States v. Saunders, 291 Fed.Appx. 367 (2d Cir. 2008)), reasoning that probation is an adult sentence that is served in an adult probation system.
Holding
Judge Johnson accepted the defense argument that this unpublished opinion is not controlling. Defense counsel argued that if the Second Circuit wanted to say that all youthful offender adjudications are “adult convictions,” it could have. Indeed, all youthful offender adjudications are tried in an adult forum, for an adult crime, and all are sentenced to an adult forum, either an adult prison or an adult probation facility. If the Second Circuit’s “case-by-case” assessment meant anything, Valle’s case presented a youthful offender adjudication that is not an “adult conviction” because Valle served no time in an adult prison, did not serve his sentence with adults but appeared by himself when reporting to probation, and was only eligible for probation because of his age and his designation as a youthful offender. Ruling in Valle’s favor, Judge Johnson reduced the applicable guideline range from 57-71 months to 24-30 months.
Comment
As this case illustrates, enhancements based on prior convictions or adjudications can result in significant increases in applicable guideline ranges. It’s one thing to see this happen with actual convictions that appear on a defendant’s rap-sheet. It’s quite another when it happens with dispositions that were sealed or deferred. Such dispositions are often hastily offered or accepted precisely because they supposedly offer a clean slate. But the sad reality is that that clean slate is often short-lived, and had the parties been more pessimistic, the calculus (and outcome) would have been entirely different. A YO robbery adjudication would have been easily exchanged for an adult plea to a non-violent larceny conviction. It is hardly a coincidence that the judge to buck a very troubling Second Circuit trend in this area is Judge Johnson, the former New York City special narcotics prosecutor (and no shrinking violet when it comes to sentencing), who has seen YO pleas negotiated in minutes outside a crowded state courtroom with a rocket docket. It would be great to see this oral decision become a written opinion.
Issue
Valle pled guilty to selling guns without a license. He had a Youthful Offender (“YO”) adjudication in New York for robbery when he was 16 years old. Under the applicable guideline, USSG § 2K2.1, there is an enhancement of the base offense level if the defendant committed the offense subsequent to sustaining a felony conviction of a crime of violence or a controlled substance offense. Under the commentary to the guideline, felony means “adult conviction.” In turn, that includes an offense committed prior to age 18 if “it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.”
Under New York law, a YO adjudication is not a “conviction.” But that hasn’t stopped the Second Circuit from saying that it can be an “adult conviction” because technically, before the disposition is deemed a youthful offender adjudication, the defendant is convicted of an adult crime, and then, in the judge’s discretion, the judge may grant the offense youthful offender status. The Second Circuit has held that courts must “examine the substance of the prior conviction at issue,” focusing on “the nature of the proceedings, the sentences received, and the actual time served.” In each and every case where it has been presented with the question of whether a YO adjudication is an “adult conviction,” the Second Circuit has sided with the government. The Second Circuit has basically relied on the fact that the youthful offender was tried in an adult forum, for an adult crime, and served time in an adult prison.
Valle qualified for the first two, but was sentenced to probation for his YO adjudication. The defense argued that this factor weighed heavily in favor of a finding that the adjudication was not an “adult conviction” because an adult convicted of the same crime would not have qualified for probation under the New York Sentencing Guidelines. In fact, Valle was only eligible for probation because he was a youthful offender. There is an unpublished Second Circuit opinion that appears to squarely reject this argument (United States v. Saunders, 291 Fed.Appx. 367 (2d Cir. 2008)), reasoning that probation is an adult sentence that is served in an adult probation system.
Holding
Judge Johnson accepted the defense argument that this unpublished opinion is not controlling. Defense counsel argued that if the Second Circuit wanted to say that all youthful offender adjudications are “adult convictions,” it could have. Indeed, all youthful offender adjudications are tried in an adult forum, for an adult crime, and all are sentenced to an adult forum, either an adult prison or an adult probation facility. If the Second Circuit’s “case-by-case” assessment meant anything, Valle’s case presented a youthful offender adjudication that is not an “adult conviction” because Valle served no time in an adult prison, did not serve his sentence with adults but appeared by himself when reporting to probation, and was only eligible for probation because of his age and his designation as a youthful offender. Ruling in Valle’s favor, Judge Johnson reduced the applicable guideline range from 57-71 months to 24-30 months.
Comment
As this case illustrates, enhancements based on prior convictions or adjudications can result in significant increases in applicable guideline ranges. It’s one thing to see this happen with actual convictions that appear on a defendant’s rap-sheet. It’s quite another when it happens with dispositions that were sealed or deferred. Such dispositions are often hastily offered or accepted precisely because they supposedly offer a clean slate. But the sad reality is that that clean slate is often short-lived, and had the parties been more pessimistic, the calculus (and outcome) would have been entirely different. A YO robbery adjudication would have been easily exchanged for an adult plea to a non-violent larceny conviction. It is hardly a coincidence that the judge to buck a very troubling Second Circuit trend in this area is Judge Johnson, the former New York City special narcotics prosecutor (and no shrinking violet when it comes to sentencing), who has seen YO pleas negotiated in minutes outside a crowded state courtroom with a rocket docket. It would be great to see this oral decision become a written opinion.
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