13‐1158‐cr
United States v. Miles
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term, 2013
(Argued: March 28, 2014 Decided: April 10, 2014)
Docket No. 13‐1158‐cr
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UNITED STATES OF AMERICA,
Appellee,
‐v.‐
ROBERT LEE MILES, a/k/a ROBERT LEE,
Defendant‐Appellant.
______________
Before:
WESLEY AND CARNEY, Circuit Judges; AND RAKOFF, District Judge.
______________
Appeal from a March 27, 2013 judgment of conviction and sentence
entered in the United States District Court for the Southern District of New York
* The Honorable Jed S. Rakoff, District Judge for the Southern District of New York,
sitting by designation.
(John F. Keenan, Judge) following a bench trial on stipulated facts. We AFFIRM
the district court’s judgment and sentence.
ALEXANDER D. LEVI (Mary E. Mulligan, Emily L.
Chang, on the brief), Friedman Kaplan Seiler &
Adelman LLP, New York, NY.
DANIEL C. RICHENTHAL, Assistant United States
Attorney (Brent S. Wible, Assistant United States
Attorney, on the brief), for Preet Bharara, United
States Attorney for Southern District of New York,
New York, NY.
______________
PER CURIAM:
Robert Lee Miles a/k/a Robert Lee (“Miles”) appeals from a March 27, 2013
judgment of conviction and sentence entered in the United States District Court
for the Southern District of New York (John F. Keenan, Judge) following a bench
trial on stipulated facts. The district court found Miles guilty of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced him to
the mandatory minimum term of fifteen years under the Armed Career Criminal
Act (“ACCA”). 18 U.S.C. § 924(e). We conclude that the district court did not err
in denying Miles’s motion to invoke entrapment by estoppel; in finding that an
“innocent possession” defense was unavailable; in finding the police had
probable cause to arrest and frisk Miles; and in sentencing Miles under the
ACCA. We therefore AFFIRM the district court’s judgment of conviction and
sentence.
BACKGROUND
At approximately noon on January 19, 2011, New York City Police
Department (“NYPD”) officers stopped Miles on a subway car after he walked
through the end doors of the subway car while the train was stationary. During
the frisk that followed, the officers found an unloaded revolver in Miles’s
waistband. The officers proceeded to arrest Miles, who had previously been
convicted of numerous state felony offenses—two violent—and a serious drug
offense. Upon arrest, Miles stated that a friend had given him a gun in order for
Miles to collect money through a gun amnesty program, in which individuals
bring firearms to police precincts in exchange for $100.
Miles was then indicted on one count of knowing possession of a firearm
under 18 U.S.C. § 922(g)(1). In pre‐trial motions, Miles sought various forms of
relief, including: (1) dismissal of the indictment under the “innocent possession”
defense, or, in the alternative, an order permitting the jury to consider the
defense; (2) dismissal of the indictment on the ground of entrapment by estoppel,
or, in the alternative, an order permitting the jury to consider the defense; and (3)
suppression of the gun.
Miles asserted that he had possessed the gun solely to turn it in at a police
station and argued that the district court should recognize an exception to 18
U.S.C. § 922(g)(1) for innocent possession. Miles also claimed that his federal
prosecution was barred because he possessed the gun in reasonable reliance on
state and municipal pronouncements regarding guns‐for‐cash programs and was
arrested while en route to take advantage of such a program. Finally, Miles
claimed that the gun should be suppressed because, according to Miles, the
statute the police noted as the reason for stopping him—N.Y. COMP. CODES, R. &
REGS. TIT. 21, § 1050.9(d), which prohibits walking between subway cars—is
applicable only while the subway is in motion.
In an order dated September 20, 2012, the district court denied his motions
to dismiss the indictment and to suppress the revolver. With respect to Miles’s
invocation of the “innocent possession” defense, the district court concluded
that, even if this were a valid defense, the facts proffered by Miles, if true, would
not support such a claim. As for the entrapment‐by‐estoppel defense, the district
court explained that Miles could not employ the defense because he had not
alleged an affirmative representation by a federal law enforcement agent.
Turning to Miles’s suppression argument, the court rejected Miles’s reading of
the statute and found that there was probable cause to stop him, irrespective of
whether the subway was in motion.
On November 13, 2012, following the denial of Miles’s motions, Miles
waived his right to a jury trial and agreed to a bench trial on stipulated facts. The
parties stipulated that Miles was previously convicted of at least one felony
offense; that on or about January 19, 2011, in the Southern District of New York,
he knowingly possessed a pistol; and that the gun had traveled in interstate
commerce prior to the date of his arrest. The bench trial was conducted that
same day, and the court found Miles guilty of being a felon in possession of a
firearm under 18 U.S.C. § 922(g)(1).
At sentencing, the Probation Office recommended the mandatory
minimum sentence of 180 months’ imprisonment. In his sentencing submission,
Miles argued, among other things, that his 1985 conviction in New York state
court for robbery in the third degree did not qualify as a “violent felony” within
the meaning of the ACCA. Specifically, Miles claimed that, because the state
court had decided to sentence him under an alternative sentencing scheme that
permitted a definite sentence of imprisonment of one year or less, he had
technically not been convicted of an offense “punishable by imprisonment for a
term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). Miles thus contended that
the ACCA did not apply in his case.
The district court did not “buy [Miles’s] argument,” stating:
The fact of the matter is for it to be an armed career
criminal conduct act, there are only two things
required: That there be the use of physical force as an
element to the crime and that the crime be punishable by
imprisonment for a term exceeding one year. But as the
government points out, you are changing punishable by
to punished. The point is the statute reads punishable
by more than a year. You are saying he didn’t get a year, so
therefore it is not an armed career criminal act.
(Sentencing Tran. at 3). The court then sentenced Miles to 180 months’
imprisonment.
On appeal, Miles argues that the district court erred in denying his pre‐
trial motions to invoke entrapment by estoppel; in finding that an “innocent
possession” defense was unavailable; in finding the police had probable cause to
arrest Miles; and in sentencing him under the ACCA. For the following reasons,
we disagree, and AFFIRM the judgment of conviction and sentence of the district
court.
DISCUSSION
“A federal court may preclude a defendant from presenting a defense
when ‘the evidence in support of such a defense would be legally insufficient.’ ”
United States v. Williams, 389 F.3d 402, 404 (2d Cir. 2004) (citing United States v.
Villegas, 899 F.2d 1324, 1343 (2d Cir. 1990)). We review claims that the district
court improperly denied the defendant a defense of entrapment by estoppel
under a clear‐error standard, see United States v. Corso, 20 F.3d 521, 524 (2d Cir.
1994) and review questions of statutory construction de novo. See United States v.
Gravel, 645 F.3d 549, 551 (2d Cir. 2011).
A. Entrapment‐by‐Estoppel Defense
An entrapment‐by‐estoppel defense may arise “where a government agent
authorizes a defendant ‘to engage in otherwise criminal conduct and the
defendant, relying thereon, commits forbidden acts in the mistaken but
reasonable, good faith belief that he has in fact been authorized to do so.’”
United States v. Gil, 297 F.3d 93, 107 (2d Cir. 2002) (quoting United States v.
Abcasis, 45 F.3d 39, 43 (2d Cir. 1995) (internal alternations omitted)). To make out
this affirmative defense, a defendant must show an affirmative assurance from
the government that his conduct was legal. See United States v. Giffen, 473 F.3d
30, 39 (2d Cir. 2006). Here, Miles creatively argues that his federal prosecution is
precluded by representations made to him in connection with state and local
government programs offering “cash for guns.”
This Court has never explicitly held that a defendant accused of a federal
crime must identify a federal official to invoke the defense of entrapment by
estoppel. Our sister circuits, however, have widely and unanimously adopted
the rule that a defendant charged with violating a federal crime must show
reliance on the advice or authority of federal officials or agents to invoke this
defense. See, e.g., United States v. Ormsby, 252 F.3d 844, 851 (6th Cir. 2001); United
States v. Funches, 135 F.3d 1405, 1407 (11th Cir. 1998); United States v. Rector, 111
F.3d 503, 505–07 (7th Cir. 1997); United States v. Spires, 79 F.3d 464, 466–67 (5th
Cir. 1996); United States v. Caron, 64 F.3d 713, 715–17 (1st Cir. 1995); United States
v. Collins, 61 F.3d 1379, 1385 (9th Cir. 1995); United States v. Etheridge, 932 F.2d
318, 320–21 (4th Cir. 1991); see also United States v. Gutierrez‐Gonzalez, 184 F.3d
1160, 1167 (10th Cir. 1999); United States v. Stewart, 185 F.3d 112, 125 n.5 (3d Cir.
1999); United States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995). This unanimity is
largely compelled by the understanding that state and local officials cannot
“‘bind the federal government to an erroneous interpretation of federal law.’”
Gil, 297 F.3d at 107 (quoting Ormsby, 252 F.3d at 851). This strikes us as good
sense, and a logical rationale to follow. Accordingly, the district court correctly
determined that this defense was unavailable to Miles.
B. Availability of Innocent Possession Defense
Miles next contends that the district court erred in not entertaining an
“innocent possession” defense in his prosecution under § 922(g)(1). This Court
has “not decided ‘whether to recognize an innocent possession defense in the
section 922 (g)(1) context.’ ” United States v. Williams, 526 F. App’x 29, 34 (2d Cir.
2013) (quoting United States v. White, 552 F.3d 240, 249 (2d Cir. 2009)).
Nonetheless, we have “repeatedly rejected efforts to assert such a defense where
the possession was not ‘momentar[y],’ ” id. (citing United States v. Paul, 110 F.3d
869, 872 (2d Cir. 1997)), or “only for as long as necessary” to deal with a
justifying necessity of some kind, White, 552 F.3d at 249. Although we do not
here announce a new rule, we believe that the district court correctly held that on
the facts averred by Miles he would be unable to assert such a defense.
C. Probable Cause
NYPD officers had the authority to arrest Miles when he passed from one
car to another through the end doors. A plain reading of the ordinance, which
states simply that “[n]o person may use the end doors of a subway car to pass
from one subway car to another except in an emergency or when directed to do
so by an authority conductor or a New York City police officer,” resolves the
matter. N.Y. COMP. CODES R. & REGS. tit. 21, § 1050.9(d). Accordingly, the district
court correctly held that there was probable cause to arrest and frisk Miles.
D. Sentencing Under the ACCA
Finally, Miles argues that, because he was actually sentenced to less than
one year for his state court conviction for robbery in the third degree that
conviction does not qualify as a “violent felony” under the ACCA. Miles’s
argument fails under the plain language of the ACCA, which has only two
requirements to qualify a state conviction as a violent felony: (1) that the offense
“has as an element the use, attempted use, or threatened use of physical force
against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i); and (2) that it be
“punishable by imprisonment for a term exceeding one year,” id. § 924(e)(2)(B)
(emphasis added). Miles acknowledges that robbery in the third degree “has as
an element the use, attempted use, or threatened use of physical force,” and so
has this Court. United States v. Brown, 52 F.3d 415, 425–26 (2d Cir. 1995). Miles
also recognizes that robbery in the third degree is a “crime punishable”—that is,
one that carries with it the potential of punishment—“by imprisonment for a
term exceeding one year.” These facts alone are enough to affirm Miles’s
sentence by the district court.
Our precedent does not explicitly state that a conviction for a violent state
crime punishable by more than a year, even if actually punished under an
alternative sentencing scheme qualifies as a predicate violent felony under the
ACCA. We do so now. Any other reading of the state penal code—including the
one urged by Miles—goes against the very structure of the statute: N.Y. Penal
Law § 70.00(1) lays out the framework of what an indeterminate sentence is;
§ 70.00(2) lays out the maximums—life for Class A felonies, and, as relevant here,
seven years for Class D felonies; and § 70.00(3) lays out the minimums—at least
one year for all indeterminate sentences.
Miles urges us to find that § 70.00(4) contains an alternative maximum, but
it does nothing of the sort. Instead, § 70.00(4) is an alternative to the minimum of
one year in § 70.00(3), which is why it makes sense to say, in the interest of justice
when mitigating factors are present, a “court may impose a definite sentence of
imprisonment and fix a term of one year or less.” This section is fashioned as an
escape hatch from the one‐year minimum of § 70.00(3) when a sentence longer
than one‐year is unjust. In other words, the crime of third‐degree robbery is still
punishable by up to seven years under § 70.00(2), and a judge’s election to use the
alternative minimum does not change the statutory maximum, which is the
relevant ACCA inquiry.
Miles’s state conviction for robbery in the third degree thus falls within
the ACCA, regardless of what sentence Miles received or why he received it. See
generally Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112–13 (1983).
We have considered all of Miles’s remaining arguments and find them to
be without merit. For the reasons stated above, the judgment of conviction and
sentencing of the district court is AFFIRMED.
CONCLUSION
The district court’s judgment of conviction and sentencing of March 27,
2013 is hereby AFFIRMED.