Two SDNY Judges Reject Guideline Enhancements Based on Prior Convictions
Guest contributor Eric Creizman writes:
Every defense lawyer knows that even though the mandatory Sentencing Guidelines regime is a thing of the past, the calculation of a defendant’s advisory Guidelines range remains a very meaningful component of sentencing. Although they are not bound by a defendant’s Guidelines range, courts nonetheless are instructed to “begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” United States v. Savage, 542 F.3d 959, 963-64 (2d Cir. 2008). And while the Second Circuit has directed sentencing courts not to presume that a Guidelines sentence is reasonable, see United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2009), adherence to the Guidelines (and the comfort they provide) runs deep. Accordingly, although defense lawyers are not restricted as they were under the pre-Booker regime in requesting below-Guidelines sentences, many defense lawyers recognize that effective advocacy under the Guidelines is a substantial, if not the most important, part of the battle at sentencing.
One of the biggest challenges for defense lawyers at sentencing is overcoming the often-enormous Guidelines enhancements based on a client’s prior offenses. Two recent sentencing decisions in the Southern District of New York rejected such sentencing enhancements, likely sparing the defendants in those cases substantial additional prison time.
United States v. Johnson, 2009 WL 3415334 (S.D.N.Y. Oct. 23, 2009)
One frequently-litigated enhancement for prior offenses is the upward adjustment for “adult convictions” under the firearm offenses guideline as applied to Youthful Offender (“YO”) adjudications under New York state law. Although New York does not regard YO adjudications as convictions under state law, the Second Circuit has held that they may be considered “convictions” for the purposes of the federal sentencing Guidelines because under New York procedure, a defendant must first plead guilty to, and be convicted of, a criminal offense before a judge, in his or her discretion, rules that the conviction be changed to a YO adjudication. See United States v. Cuello, 357 F. 3d 162 (2d Cir. 2004). Moreover, although YO defendants are, by definition, not “adults,” the Second Circuit has held that a state’s classification of a conviction is not dispositive for the purposes of applying the enhancement under the Guidelines. Under the Second Circuit’s approach, whether a conviction was an “adult” conviction depends on whether the defendant was treated as an adult, an assessment the district court must make after examining “the nature of the proceedings, the sentences received, and the actual time served.” Cuello, 357 F.3d at 168-69.
Because YOs in New York are always adjudicated in an adult court (Supreme Court), and sentences of imprisonment are generally served in adult facilities, courts in the Second Circuit frequently have considered YO adjudications “adult convictions” for the purposes of the Guidelines enhancement. Indeed, in an unpublished opinion, the Second Circuit even upheld an enhancement for a YO adjudication which resulted in a probationary sentence on the grounds that probation is a punishment adult defendants regularly receive, and (like all New York YO probationary sentences), the defendant was supervised by a probation department that supervised adults . See United States v. Cruz, 136 Fed. Appx. 386 (2d Cir. 2006). Because the decisional law makes YO adjudications an almost can’t win proposition, only very infrequently have judges ruled in favor of the defense on this issue. For a notable defense victory, see Valle.
In United States v. Johnson, No. 09 Cr. 139 (RWS), 2009 WL 3415334 (S.D.N.Y. Oct. 23, 2009), however, Judge Sweet refused to apply the “adult conviction” enhancement based on a YO adjudication that the defendant received at the age of fourteen for a crime the defendant committed fourteen years later. In Johnson, the defendant, Jamal Johnson, was sentenced on a guilty plea to one count of possession of a firearm by a felon (18 U.S.C. § 922(g)(1)). The government argued that Mr. Johnson’s prior YO adjudication for second-degree robbery when he was fourteen years old qualified for the “adult conviction” enhancement because he served eight months in an adult prison. See Johnson, 2009 WL 3415334, at *3. Mr. Johnson, however, served the great majority of his four-year prison term for the YO adjudication in a juvenile detention facility. Id. Moreover, Judge Sweet noted that in the many cases where the Second Circuit has deemed a YO adjudication a basis for the “adult conviction” enhancement, the defendants were at least sixteen years old. Mr. Johnson’s “considerable youth at the time is grounds for excluding that adjudication in calculating his base offense level for the purposes of this sentence.” Id. at *4.
United States v. DeJesus-Quezada, No. 09-CR-628, 2009 WL 3519505 (S.D.N.Y. Oct. 28, 2009)
In United States v. DeJesus-Quezada, No. 09-CR-628 (JSR), 2009 WL 3519505 (S.D.N.Y. Oct. 28, 2009), Judge Rakoff addressed whether a conviction under foreign laws qualifies for an “aggravated felony” statutory enhancement and for a “crime of violence” guideline enhancement in sentencing for the crime of illegal reentry. There, the defendant was deported from the United States after it was discovered that he had been convicted of the Dominican analogue of voluntary manslaughter for having fatally shot his wife. DeJesus-Quezada, 2009 WL 3519505, at *1. In addressing the statutory enhancement, Judge Rakoff noted that on its face, voluntary manslaughter is a “crime of violence,” which seemingly would trigger the “aggravated felony” enhancement. Id. Judge Rakoff explained, however, that the Second Circuit requires the district court to take a “categorical approach” to determining whether the enhancement applies, which means that the specific circumstances of the defendant’s conduct are not considered; only the “minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.” Id. (internal citations omitted). Although defense counsel creatively suggested scenarios where passive conduct, like starving a child, without using any force, may violate the Dominican statute, Judge Rakoff held that the “categorical approach” does not require that “all commissions of the crime require use of force, but only that there be a substantial risk of force inherent in the crime’s nature.” Id. at 2. In any event, all of defense counsel’s hypotheses would also constitute violations of New York’s first-degree manslaughter statute, which, categorically, is a “crime of violence” under the illegal reentry statute. Id.
Judge Rakoff reached a different conclusion with respect to the sixteen-level “crime of violence” enhancement under the Guidelines. Id. at 2. Unlike the statutory enhancement, the Guidelines enhancement “only relates to crimes of violence committed in violation of domestic laws.” Indeed, the commentary to the guideline provides that the enhancement applies to “offenses under federal, state, or local law.” U.S.S.G. § 2L1.2(b)(1) cmt. N.1(B)(iii). Judge Rakoff held that if the Sentencing Commission wished to include foreign crimes as a basis for the enhancement, it should have explicitly done so. Without plain language incorporating foreign crimes as a basis for the enhancement, it is reasonable to assume that the Sentencing Commission concluded that foreign convictions should not count toward the enhancement “because such convictions frequently lack the procedural safeguards typical of U.S. convictions.” Id. at *2.
Comment
Both Johnson and Dejesus-Quezada underline the importance of a defense counsel subjecting every aspect of the Guidelines calculation to scrutiny and challenge, and not simply relying solely on the sentencing factors set forth in 18 U.S.C. § 3553(a) to minimize the client’s exposure. There remain battles to be fought, and won, in determining the applicable Guidelines range. Once a favorable Guidelines range is achieved, it is the baseline from which the §3553(a) factors can be used to advocate more credibly for a sentence even farther below the sentence advocated by the government.
Every defense lawyer knows that even though the mandatory Sentencing Guidelines regime is a thing of the past, the calculation of a defendant’s advisory Guidelines range remains a very meaningful component of sentencing. Although they are not bound by a defendant’s Guidelines range, courts nonetheless are instructed to “begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” United States v. Savage, 542 F.3d 959, 963-64 (2d Cir. 2008). And while the Second Circuit has directed sentencing courts not to presume that a Guidelines sentence is reasonable, see United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2009), adherence to the Guidelines (and the comfort they provide) runs deep. Accordingly, although defense lawyers are not restricted as they were under the pre-Booker regime in requesting below-Guidelines sentences, many defense lawyers recognize that effective advocacy under the Guidelines is a substantial, if not the most important, part of the battle at sentencing.
One of the biggest challenges for defense lawyers at sentencing is overcoming the often-enormous Guidelines enhancements based on a client’s prior offenses. Two recent sentencing decisions in the Southern District of New York rejected such sentencing enhancements, likely sparing the defendants in those cases substantial additional prison time.
United States v. Johnson, 2009 WL 3415334 (S.D.N.Y. Oct. 23, 2009)
One frequently-litigated enhancement for prior offenses is the upward adjustment for “adult convictions” under the firearm offenses guideline as applied to Youthful Offender (“YO”) adjudications under New York state law. Although New York does not regard YO adjudications as convictions under state law, the Second Circuit has held that they may be considered “convictions” for the purposes of the federal sentencing Guidelines because under New York procedure, a defendant must first plead guilty to, and be convicted of, a criminal offense before a judge, in his or her discretion, rules that the conviction be changed to a YO adjudication. See United States v. Cuello, 357 F. 3d 162 (2d Cir. 2004). Moreover, although YO defendants are, by definition, not “adults,” the Second Circuit has held that a state’s classification of a conviction is not dispositive for the purposes of applying the enhancement under the Guidelines. Under the Second Circuit’s approach, whether a conviction was an “adult” conviction depends on whether the defendant was treated as an adult, an assessment the district court must make after examining “the nature of the proceedings, the sentences received, and the actual time served.” Cuello, 357 F.3d at 168-69.
Because YOs in New York are always adjudicated in an adult court (Supreme Court), and sentences of imprisonment are generally served in adult facilities, courts in the Second Circuit frequently have considered YO adjudications “adult convictions” for the purposes of the Guidelines enhancement. Indeed, in an unpublished opinion, the Second Circuit even upheld an enhancement for a YO adjudication which resulted in a probationary sentence on the grounds that probation is a punishment adult defendants regularly receive, and (like all New York YO probationary sentences), the defendant was supervised by a probation department that supervised adults . See United States v. Cruz, 136 Fed. Appx. 386 (2d Cir. 2006). Because the decisional law makes YO adjudications an almost can’t win proposition, only very infrequently have judges ruled in favor of the defense on this issue. For a notable defense victory, see Valle.
In United States v. Johnson, No. 09 Cr. 139 (RWS), 2009 WL 3415334 (S.D.N.Y. Oct. 23, 2009), however, Judge Sweet refused to apply the “adult conviction” enhancement based on a YO adjudication that the defendant received at the age of fourteen for a crime the defendant committed fourteen years later. In Johnson, the defendant, Jamal Johnson, was sentenced on a guilty plea to one count of possession of a firearm by a felon (18 U.S.C. § 922(g)(1)). The government argued that Mr. Johnson’s prior YO adjudication for second-degree robbery when he was fourteen years old qualified for the “adult conviction” enhancement because he served eight months in an adult prison. See Johnson, 2009 WL 3415334, at *3. Mr. Johnson, however, served the great majority of his four-year prison term for the YO adjudication in a juvenile detention facility. Id. Moreover, Judge Sweet noted that in the many cases where the Second Circuit has deemed a YO adjudication a basis for the “adult conviction” enhancement, the defendants were at least sixteen years old. Mr. Johnson’s “considerable youth at the time is grounds for excluding that adjudication in calculating his base offense level for the purposes of this sentence.” Id. at *4.
United States v. DeJesus-Quezada, No. 09-CR-628, 2009 WL 3519505 (S.D.N.Y. Oct. 28, 2009)
In United States v. DeJesus-Quezada, No. 09-CR-628 (JSR), 2009 WL 3519505 (S.D.N.Y. Oct. 28, 2009), Judge Rakoff addressed whether a conviction under foreign laws qualifies for an “aggravated felony” statutory enhancement and for a “crime of violence” guideline enhancement in sentencing for the crime of illegal reentry. There, the defendant was deported from the United States after it was discovered that he had been convicted of the Dominican analogue of voluntary manslaughter for having fatally shot his wife. DeJesus-Quezada, 2009 WL 3519505, at *1. In addressing the statutory enhancement, Judge Rakoff noted that on its face, voluntary manslaughter is a “crime of violence,” which seemingly would trigger the “aggravated felony” enhancement. Id. Judge Rakoff explained, however, that the Second Circuit requires the district court to take a “categorical approach” to determining whether the enhancement applies, which means that the specific circumstances of the defendant’s conduct are not considered; only the “minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.” Id. (internal citations omitted). Although defense counsel creatively suggested scenarios where passive conduct, like starving a child, without using any force, may violate the Dominican statute, Judge Rakoff held that the “categorical approach” does not require that “all commissions of the crime require use of force, but only that there be a substantial risk of force inherent in the crime’s nature.” Id. at 2. In any event, all of defense counsel’s hypotheses would also constitute violations of New York’s first-degree manslaughter statute, which, categorically, is a “crime of violence” under the illegal reentry statute. Id.
Judge Rakoff reached a different conclusion with respect to the sixteen-level “crime of violence” enhancement under the Guidelines. Id. at 2. Unlike the statutory enhancement, the Guidelines enhancement “only relates to crimes of violence committed in violation of domestic laws.” Indeed, the commentary to the guideline provides that the enhancement applies to “offenses under federal, state, or local law.” U.S.S.G. § 2L1.2(b)(1) cmt. N.1(B)(iii). Judge Rakoff held that if the Sentencing Commission wished to include foreign crimes as a basis for the enhancement, it should have explicitly done so. Without plain language incorporating foreign crimes as a basis for the enhancement, it is reasonable to assume that the Sentencing Commission concluded that foreign convictions should not count toward the enhancement “because such convictions frequently lack the procedural safeguards typical of U.S. convictions.” Id. at *2.
Comment
Both Johnson and Dejesus-Quezada underline the importance of a defense counsel subjecting every aspect of the Guidelines calculation to scrutiny and challenge, and not simply relying solely on the sentencing factors set forth in 18 U.S.C. § 3553(a) to minimize the client’s exposure. There remain battles to be fought, and won, in determining the applicable Guidelines range. Once a favorable Guidelines range is achieved, it is the baseline from which the §3553(a) factors can be used to advocate more credibly for a sentence even farther below the sentence advocated by the government.
See Archives for all posts since September 2007.
