13‐3473‐cr
United States v. Ulysses Antoine Banks
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 ____________________
4
5 November Term, 2014
6
7 (Submitted: November 10, 2014 Decided: January 9, 2015)
8
9 Docket No. 13‐3473
10
11 ____________________
12
13 UNITED STATES OF AMERICA,
14
15
16 Appellee,
17
18 v.
19
20 ULYSSES ANTOINE BANKS,
21
22 Defendant‐Appellant.
23
24 ____________________
25
26 Before: POOLER, WESLEY, and LOHIER, Circuit Judges.
27
28 Appeal from the amended judgment of the United States District Court for
29 the District of Connecticut (Eginton, J.) sentencing Defendant‐Appellant Ulysses
30 Antoine Banks to 57 months’ imprisonment for unlawful possession of a firearm
31 by a convicted felon, in violation of 18 U.S.C. § 922(g). We conclude that the
1 district court did not err in determining Banks’s base offense level and criminal
2 history category by relying on prior sentences imposed upon convictions entered
3 pursuant to Alford pleas.
4 Affirmed.
5 ____________________
6 STEVEN Y. YUROWITZ, New York, NY, for Defendant‐
7 Appellant Ulysses Antoine Banks.
8
9 SARAH P. KARWAN, Assistant United States Attorney,
10 (Deirdre M. Daly, United States Attorney, Marc H.
11 Silverman, Assistant United States Attorney, on the
12 brief) New Haven, CT, for Appellee.
13
14
15
16 PER CURIAM:
17 Defendant‐Appellant Ulysses Antoine Banks (“Banks”) appeals from the
18 amended judgment of the United States District Court for the District of
19 Connecticut (Eginton, J.), entered on September 4, 2013, which sentenced Banks,
20 on remand from the March 26, 2013 order of this Court, to 57 months’
21 imprisonment for unlawful possession of a firearm by a convicted felon, in
22 violation of 18 U.S.C. § 922(g). Banks’s sole challenge in the present appeal asserts
23 that the district court erred when it calculated his criminal history category and
2
1 base offense level by relying on prior sentences imposed upon pleas entered in
2 accordance with North Carolina v. Alford, 400 U.S. 25 (1970). Because we conclude
3 that a sentence imposed upon entry of an Alford plea qualifies as a “prior
4 sentence” under U.S.S.G. § 4A1.2(a)(1), we affirm the judgment of the district
5 court.
6 BACKGROUND
7 I. Initial Sentence
8 On November 8, 2011, Banks pleaded guilty pursuant to a plea agreement
9 to unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C.
10 § 922(g).1 The plea agreement stipulated that on May 20, 2011, Banks knowingly
11 possessed a Beretta Model 21A, .22 caliber semi‐automatic pistol, which had
12 previously traveled in interstate commerce and which Banks had on his person
13 when Norwalk police officers arrested him following a traffic stop. The
14 agreement further recited that Banks had sustained prior felony convictions in
15 state court on August 14, 2008, for sale of a controlled substance, and on October
1
Although the plea agreement contained an appeal waiver provision, the
government is not seeking to enforce that waiver in light of the parties’ mutually
mistaken belief that Banks was subject to a 180‐month mandatory minimum
sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and the
erroneous advice Banks received to that effect.
3
1 26, 2005, for assault in the first degree and robbery in the third degree. The
2 agreement therefore set forth the parties’ understanding that Banks was subject
3 to a 180‐month mandatory minimum sentence under the Armed Career Criminal
4 Act (“ACCA”), 18 U.S.C. § 924(e), because he had previously sustained three
5 qualifying felony convictions.
6 On May 23, 2012, the district court held a sentencing hearing. Defense
7 counsel communicated Banks’s concern that a 15‐year sentence was unduly
8 harsh, because it was predominantly premised on sentences imposed for three
9 prior convictions, one of which received no criminal history points, and another
10 two of which were entered following Alford pleas that Banks offered in exchange
11 for a sentence of little more than time served. The district court dismissed this
12 argument on the basis of its “inability to really look back into the state court
13 situation.” Transcript of Sentencing Hearing at 7, United States v. Banks, No. 3:11‐
14 CR‐00165 (WWE) (D. Conn. May 23, 2012). After adopting the United States
15 Sentencing Guidelines (“Guidelines”) calculation embodied in the plea
16 agreement and the Pre‐Sentence Report (“PSR”)—both of which reflected Banks’s
17 status as an Armed Career Criminal—the district court sentenced Banks
18 principally to 180 months’ imprisonment.
4
1 II. Initial Appeal
2 After Banks timely filed a notice of appeal, the parties received and
3 reviewed the transcript of the guilty plea underlying Banks’s 2008 conviction for
4 sale of a controlled substance and discovered that it did not qualify as a “serious
5 drug offense” under the ACCA.2 Accordingly, the parties jointly moved this
6 Court to vacate the May 23, 2012 sentence and remand to the district court for a
7 full resentencing. On March 26, 2013, this Court remanded the case for the district
8 court to determine the subsection of Conn. Gen. Stat. § 21a‐277 applicable to the
9 2008 drug offense and, if appropriate, to vacate Banks’s May 23, 2012 sentence
10 and impose a new sentence. On remand, the district court vacated the May 23,
11 2012 sentence.
12 III. Resentencing
13 Upon resentencing, the district court concluded that Banks’s base offense
14 level was 24 because he unlawfully possessed a firearm after “sustaining at least
15 two felony convictions of either a crime of violence or a controlled substance
2
Because the state court treated Banks as a first‐time offender, his offense
carried a seven‐year maximum penalty. Accordingly, it did not qualify as a
“serious drug offense” under the ACCA, which requires a prior conviction of a
drug offense carrying a maximum term of imprisonment of at least ten years. 18
U.S.C. § 924(e)(2)(A)(ii).
5
1 offense.” U.S.S.G. § 2K2.1(a)(2). Namely, on October 26, 2005, Banks entered
2 Alford pleas in Connecticut Superior Court to both third‐degree robbery and
3 attempted first‐degree assault pursuant to a deal in which he would receive a
4 sentence of imprisonment amounting to essentially time served.3 The district
5 court again rejected Banks’s argument that it should disregard the two sentences
6 imposed as a result of his Alford pleas, and relied on these sentences both in
7 increasing Banks’s base offense level from 14 to 24 under U.S.S.G. § 2K2.1(a)(2)
8 and in adding six points to his criminal history, thereby placing Banks in criminal
9 history category IV under U.S.S.G. § 4A1.1. After applying a three‐level reduction
10 for acceptance of responsibility, the district court concluded that Banks’s
11 advisory Guideline range was 57 to 71 months, and imposed a sentence of 57
12 months’ imprisonment.
13 DISCUSSION
14 The sole issue on this appeal concerns whether the district court properly
15 determined Banks’s base offense level and criminal history category when, in
3
According to the PSR, Banks was arrested for the robbery on September
17, 2003, whereas he was arrested for the assault on May 4, 2004. The parties do
not dispute that these offenses were separated by an intervening arrest and
therefore count separately under U.S.S.G. § 4A1.2(a)(2).
6
1 making both of those determinations, the district court relied on sentences
2 imposed for convictions entered pursuant to Alford pleas. Specifically, Banks
3 argues that the sentences resulting from his Alford pleas to robbery and assault do
4 not constitute “prior sentences” within the meaning of U.S.S.G. § 4A1.2, because
5 that section enumerates several dispositions qualifying as an “adjudication of
6 guilt” but omits any reference to Alford pleas. For the following reasons, we
7 disagree.
8 I. Standard of Review
9 Whether the district court correctly interpreted a provision in the
10 Guidelines is a question of law that we review de novo. United States v. Cuello,
11 357 F.3d 162, 164 (2d Cir. 2004). We also review de novo “the scope of a district
12 court’s authority to make factual findings,” United States v. Rosa, 507 F.3d 142, 151
13 (2d Cir. 2007), as well as a district court’s determination that “a prior conviction
14 qualifies as a predicate offense warranting a sentencing enhancement,” United
15 States v. Walker, 595 F.3d 441, 443 (2d Cir. 2010).
7
1 II. Analysis
2 A. “Prior Sentence” Under U.S.S.G. § 4A1.2
3
4 Section 4A1.1 of the Guidelines governs the calculation of a defendant’s
5 criminal history category. The applicable category is determined by adding
6 together the criminal history points associated with each of the defendant’s
7 qualifying “prior sentences,” which are determined by the length of the sentence
8 imposed. A defendant’s prior sentences are also relevant to determining his base
9 offense level for unlawful possession of a firearm insofar as Section 2K2.1
10 provides for a ten‐point increase where the defendant has previously sustained
11 “at least two felony convictions of . . . a crime of violence,” U.S.S.G. § 2K2.1(a)(2),
12 because only convictions classified as a “prior sentence” may trigger this
13 enhancement, see U.S.S.G. § 2K2.1 cmt. n.10.4
14
4
When determining whether a defendant has sustained “two felony
convictions of . . . a crime of violence,” U.S.S.G. § 2K2.1(a)(2), courts must “use
only those felony convictions that receive criminal history points under
§ 4A1.1(a), (b), or (c).” U.S.S.G. § 2K2.1 cmt. n.10. Because these provisions assign
criminal history points only for “prior sentences,”as defined in § 4A1.2(a), a
felony conviction of a crime of violence does not warrant an increase in a
defendant’s offense level under § 2K2.1(a)(2) unless it also qualifies as a “prior
sentence.”
8
1 Section 4A1.2 in turn defines the term “prior sentence,” explaining:
2 The term “prior sentence” means any sentence previously imposed upon
3 adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere,
4 for conduct not part of the instant offense.
5
6 U.S.S.G. § 4A1.2(a)(1). Relying on the principle that expressio unius est exclusio
7 alterius—“the expression of one thing is the exclusion of another”—Qi Hang Guo
8 v. U.S. Dep’t of Justice, 422 F.3d 61, 64 (2d Cir. 2005) (citing Black’s Law Dictionary
9 1635 (7th ed. 1999)), Banks argues that the omission of Alford pleas from this
10 enumerated list is dispositive in establishing that a sentence imposed upon the
11 entry of an Alford plea does not qualify as a “prior sentence.”
12 Banks’s argument is unavailing because the plain language of Section
13 4A1.2(a)(1) provides that the term “prior sentence” encompasses a sentence
14 imposed upon an adjudication of guilt made by guilty plea, and “[a]n Alford plea
15 is a guilty plea.” Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (emphasis in
16 original). “The distinguishing feature of an Alford plea is that the defendant does
17 not confirm the factual basis for the plea.” United States v. Savage, 542 F.3d 959,
18 962 (2d Cir. 2008). Despite these accompanying protestations of innocence, the
19 defendant nonetheless enters a plea of guilty. See Alford, 400 U.S. at 33, 37
20 (holding that a court can accept a plea “denominated a plea of guilty,” despite
9
1 the defendant’s protestations of innocence). Accordingly, the omission of Alford
2 pleas “from § 4A1.2(a)(1) most likely reflects an understanding that it was
3 unnecessary to list it as a separate disposition.” United States v. Mackins, 218 F.3d
4 263, 268 (3d Cir. 2000).
5 This Court reached the same conclusion when it addressed an analogous
6 challenge brought under the Immigration and Nationality Act (“INA”). In
7 Abimbola, we rejected the appellant’s argument that his Alford plea to the
8 Connecticut offense of third‐degree larceny did not constitute a “conviction”
9 under the INA where the relevant statute defined “conviction” with reference to
10 “a plea of guilty or nolo contendere,” but failed to mention Alford pleas.5 378 F.3d
11 at 180–81 (emphasis omitted) (quoting 8 U.S.C. § 1101(a)(48)(A)). In concluding
12 that the plain language of the INA encompassed Alford pleas, this Court held
13 that, by definition, “[a]n Alford plea is simply a guilty plea, with evidence in the
14 record of guilt, typically accompanied by the defendant’s protestation of
5
The INA defines “conviction” as:
[A] formal judgment of guilt of the alien entered by a court or, if
adjudication of guilt has been withheld, where—(i) a judge or jury
has found the alien guilty or the alien has entered a plea of guilty or
nolo contendere or has admitted sufficient facts to warrant a finding
of guilt, and (ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A).
10
1 innocence and his or her unequivocal desire to enter the plea.” Id. at 181 (internal
2 quotation marks omitted).
3 Furthermore, in Abimbola, we rejected the appellant’s contention that
4 Congress’s failure to specifically include Alford pleas while explicitly listing pleas
5 of nolo contendere reflected congressional intent to exclude Alford pleas. Id. To
6 the contrary, we held that “[t]he inclusion of nolo contendere pleas in the statute .
7 . . reflects that Congress focused the sanction of removal on a criminal conviction
8 as opposed to an admission of guilt.” Id. Likewise, the Guidelines’ enumeration
9 of nolo contendere pleas in Section 4A1.2(a)(1) reflects Congress’s intent that the
10 computation of the applicable criminal history category be “keyed primarily to
11 the number and length of a defendant’s prior sentences,” United States v. Mishoe,
12 241 F.3d 214, 218 (2d Cir. 2001), independent of the manner in which guilt is
13 adjudicated prior to that sentence being imposed.
14 Our statutory interpretation is not altered by the single reference to Alford
15 pleas elsewhere in the Guidelines. In an effort to ascribe meaning to Congress’s
16 omission of Alford pleas from Section 4A1.2(a)(1), Banks points to the explicit
17 inclusion of Alford pleas in Section 8A1.2, which governs the sentencing of
18 organizations. The application notes to this provision define a “prior criminal
11
1 adjudication,” for the purposes of Chapter Eight of the Guidelines, as “conviction
2 by trial, plea of guilty (including an Alford plea), or plea of nolo contendere.”
3 U.S.S.G. § 8A1.2 cmt. n.3(G). The inclusion of Alford pleas in Section 8A1.2 does
4 not, however, suggest that they were intentionally omitted from Section
5 4A1.2(a)(1), because Section 4A1.2(a)(1) was enacted on November 1, 1987,
6 whereas Chapter Eight was later added by amendment on November 1, 1991. See
7 Mackins, 218 F.3d at 268 n.3. Under such circumstances, the parenthetical
8 language in Chapter Eight could be read to suggest Congress’s intent to clarify
9 that Alford pleas are nothing more than a variety of guilty plea. See United States v.
10 King, 673 F.3d 274, 282 (4th Cir. 2012) (citing Mackins, 218 F.3d at 268 n.3).
11 Accordingly, we reject Banks’s contention that the plain language of Section
12 4A1.2(a)(1) excludes sentences imposed upon the entry of an Alford plea from the
13 definition of a “prior sentence.”
14 B. Second Circuit Treatment of Alford Pleas
15
16 Moreover, Banks’s argument is significantly undermined by our decision
17 in Savage. There, we held that a conviction entered in state court following an
18 Alford plea did not trigger the sentencing enhancements in U.S.S.G. § 2K2.1(a)(2)
19 because the underlying conviction in that case did not necessarily rest upon a
12
1 predicate offense under the modified categorical approach. 542 F.3d at 966. In
2 reaching this conclusion, we expressly presumed that, in situations where the
3 modified categorical approach is satisfied, “a conviction entered pursuant to an
4 Alford plea may serve as a predicate offense under Guidelines § 2K2.1[(a)](2).” Id.
5 at 964. Indeed, the core analysis in Savage would be rendered superfluous if
6 Alford pleas are categorically disqualified from inclusion in Guidelines
7 computations. Although the parties in Savage did not dispute the issue currently
8 before us, we indicated our agreement with this concession, citing our prior
9 decision in Burrell v. United States, 384 F.3d 22, 31 (2d Cir. 2004), where we held
10 that, under Connecticut law, a conviction based on an Alford plea qualified as a
11 predicate felony “conviction” for the purposes of being classified as a felon in
12 possession of a firearm under 18 U.S.C. § 922(g)(1). See Savage, 542 F.3d at 964.
13 Though Burrell does not, by itself, resolve the issue before us,6 it is
6
Whereas the Guidelines provide their own statutory definition for the
term “prior sentence,” the statutory provision at issue in Burrell provides that, for
the purposes of 18 U.S.C. § 922(g)(1), “[w]hat constitutes a conviction of such a
crime shall be determined in accordance with the law of the jurisdiction in which
the proceedings were held.” 18 U.S.C. § 921(a)(20); Burrell, 384 F.3d at 24 n.2
(distinguishing Abimbola). Accordingly, the treatment of a prior offense may
diverge under the two statutes. Compare Burrell, 384 F.3d at 28 (“[A] § 922(g)(1)
conviction is not subject to attack on the ground that a predicate conviction is
subsequently reversed, vacated or modified.” (internal quotation marks
omitted)), with U.S.S.G. § 4A1.2 cmt. n.6 (“Sentences resulting from convictions
that . . . have been reversed or vacated . . . are not to be counted.”).
13
1 nevertheless instructive. 384 F.3d at 24 n.2. In Burrell, we held that where the fact
2 of conviction is all that matters, id. at 27–28, under Connecticut law, “there is no
3 distinction among Alford, nolo contendere, and standard guilty pleas in the
4 disposition of criminal cases. All three pleas have ‘the weight of a final
5 adjudication of guilt’ and, thus, result in judgments of conviction,” id. at 29. Here,
6 the definition of “prior sentence” merely requires that a sentence was imposed
7 upon adjudication of guilt. U.S.S.G. § 4A1.2(a)(1). Because “sentences under
8 Alford pleas are no less final judgments than those imposed under standard pleas
9 or jury verdicts,” Burrell, 384 F.3d at 28, a sentence imposed following a
10 conviction resulting from an Alford plea satisfies the Guidelines definition of
11 “prior sentence.”
12 C. Sister Circuits
13
14 Our sister circuits that have addressed Banks’s precise argument have
15 uniformly rejected it. The Third and Fourth have held that “a sentence imposed
16 after an Alford plea qualifies as a ‘prior sentence’ under U.S.S.G. § 4A1.2(a) for
17 purposes of calculating an offender’s criminal history.” King, 673 F.3d at 281
18 (citing Mackins, 218 F.3d at 269); see also United States v. Martinez, 30 F. App’x 900,
19 905 (10th Cir. 2002) (“[A]n Alford plea is an ‘adjudication of guilt’ under
14
1 § 4A1.2(e)(1) and therefore can properly be counted as a prior sentence under the
2 USSG.”).
3 In King, a defendant convicted under the same statute at issue here
4 asserted that “the district court erroneously added three points to his criminal
5 history score,” because the term of imprisonment he received following his Alford
6 plea did not qualify as a “prior sentence.” 673 F.3d at 280. After surveying the
7 law in other circuits—including our decisions in Savage and Abimbola—the Fourth
8 Circuit rejected Banks’s proffered statutory interpretation and held that a
9 sentence imposed following an Alford plea qualifies as a “prior sentence.” Id. at
10 283.
11 The Third Circuit reached the same conclusion in Mackins. Despite
12 acknowledging that the defendant’s “sole motivation for pleading guilty was
13 because the plea allowed him to be released on time served as opposed to
14 remaining incarcerated while awaiting a trial date to be set,” 218 F.3d at 266 n.2,
15 the court concluded that the entry of the defendant’s plea still qualified as a
16 “prior sentence,” id. at 268; see also Abimbola, 378 F.3d at 181 (quoting Mackins
17 with approval). Furthermore, other circuits have held in analogous contexts that
18 sentences resulting from Alford pleas can serve as predicate convictions for the
15
1 purposes of increasing a defendant’s offense level. See United States v. Vinton, 631
2 F.3d 476, 486–87 (8th Cir. 2011) (holding that conviction entered following Alford
3 plea was a conviction of a “crime of violence” for the offense‐level increase under
4 U.S.S.G. § 2K2.1(a)(3)(B)); United States v. Guerrero‐Velasquez, 434 F.3d 1193,
5 1197–98 (9th Cir. 2006) (holding that conviction following Alford plea constituted
6 conviction of a “crime of violence” for the offense‐level increase under U.S.S.G.
7 § 2L1.2(b)(1)(A)(ii)).
8 The only support for the contrary conclusion is unpersuasive. While the
9 dissent in Mackins embraced Banks’s statutory interpretation, it expressly
10 acknowledged that its conclusion was motivated by the rigidity of the pre‐Booker
11 Guidelines, which would otherwise severely restrict the district courts’ ability to
12 consider the fact that a defendant served no additional time in exchange for an
13 Alford plea. 218 F.3d at 271–72 (Bright, J., dissenting). In light of the discretion
14 afforded to district courts to consider such circumstances after United States v.
15 Booker, 543 U.S. 220 (2005), and its progeny, this concern need no longer detain
16 us. See United States v. Cavera, 550 F.3d 180, 189–92 (2d Cir. 2008) (noting that
17 district courts are entitled to particular deference if they choose to vary from the
16
1 “sharply increase[d]” sentences for firearms offenses under Section 2K2.1(a)).7
2 CONCLUSION
3 Accordingly, we now join our sister circuits in concluding that a sentence
4 imposed for a conviction resulting from an Alford plea constitutes a “prior
5 sentence” within the meaning of Section 4A1.2(a)(1). We therefore reject Banks’s
6 assertion that the district court erred in calculating his criminal history category
7 or increasing his base offense level by relying on sentences resulting from Alford
8 pleas.
9 For the foregoing reasons, we AFFIRM the judgment of the district court.
7
Furthermore, on multiple occasions, this Court has noted the authority of
the district courts to “make a so‐called ‘horizontal departure’” and “adopt a
lower criminal history category,” United States v. Preacely, 628 F.3d 72, 80 (2d Cir.
2010), based on such “individualized consideration[s]” as “the sentences
previously imposed, and the amount of time previously served compared to the
sentencing range called for by placement in [a particular criminal history
category],” Mishoe, 241 F.3d at 219; see also United States v. Ingram, 721 F.3d 35, 39
(2d Cir. 2013) (Calabresi, J., concurring).
17