06-4567-cr
U.S. v. Darden; U.S. v. Archer; U.S. v. Villegas; U.S. v. W illiams
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________________________
August Term, 2007
(Argued: December 12, 2007 Decided: August 15, 2008)
Docket Nos. 06-4567-cr, 06-4821-cr, 07-0025-cr, 07-2664-cr(L), 07-2869-cr(XAP)
_______________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 06-4567-cr
JOEL DARDEN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Appellant,
v. No. 06-4821-cr
RALPH ARCHER,
Defendant-Apellee.
UNITED STATES OF AMERICA,
Appellant,
v. No. 07-0025-cr
PEDRO A. VILLEGAS, also known as Feda Villegas,
Defendant-Appellee;
1
UNITED STATES OF AMERICA,
Appellant-Cross-Appellee,
v. Nos. 07-2664-cr(L), 07-2869-
cr(XAP)
ANDRE WILLIAMS,
Defendant-Appellee-Crosss-Appellant.
Before: CARDAMONE and POOLER, Circuit Judges, and KEENAN, District Judge.*
_______________________________
These four appeals, heard in tandem and consolidated for disposition, raise the same legal
question: whether a prior conviction for a New York drug offense can serve as a predicate
“serious drug offense” under the Armed Career Criminal Act (“ACCA”) where New York’s
Rockefeller drug laws prescribed a maximum sentence of at least ten years for the offense at the
time it was committed, but where New York non-retroactively amended the Rockefeller drug
laws, prior to the federal sentencing in these cases, to reduce the maximum sentence for the same
offense conduct to less than ten years. We conclude that, under the plain terms of the ACCA, we
must look to the current sentencing laws of the state to determine whether the drug offense is
“serious.” We further conclude that under current New York law, the maximum sentence
prescribed for these offenses is less than ten years.
MICHAEL A. MARINACCIO, Culleton, Marinaccio &
Foglia, White Plains, NY, for Defendant-Appellant Joel
Darden.
*
The Honorable John F. Keenan of the United States District Court for the Southern
District of New York, sitting by designation.
2
JOHN M. BURKE, Brooklyn, NY, for Defendant-Appellee
Ralph Archer.
LLOYD EPSTEIN, Epstein & Weil, New York, NY, for
Defendant-Appellee Pedro Villegas.
STEVEN M. STATSINGER, Federal Defenders of New
York, Inc., Appeals Bureau, New York, NY, for Defendant-
Appellee-Cross-Appellant Andre Williams.
PARVIN MOYNE, Assistant United States Attorney (Peter
A. Norling, Evan C. Williams, James P. Loonam, Elizabeth
A. Latif, and Diane Gujarati, Assistant United States
Attorneys, on the briefs) for Roslynn R. Mauskopf, United
States Attorney for the Eastern District of New York, and
for Michael J. Garcia, United States Attorney for the
Southern District of New York, New York, NY, for
Appellee in No. 06-4567, for Appellants in Nos. 07-0025,
06-4821, and for Appellant-Cross-Appellee in Nos. 07-
2664, 07-2869.
POOLER, Circuit Judge:
The Armed Career Criminal Act (ACCA) mandates a fifteen year minimum sentence for
anyone convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g),
who “has three previous convictions . . . for a violent felony or a serious drug offense, or both.”
18 U.S.C. § 924(e)(1). Section 924(e)(2)(A)(ii) defines a “serious drug offense,” in relevant part,
as “an offense under state law . . . for which a maximum term of imprisonment of ten years or
more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). These four appeals, heard in tandem
and consolidated for disposition, raise the same legal question: whether a prior conviction for a
New York drug offense can serve as a predicate “serious drug offense” under the ACCA, where
New York’s Rockefeller drug laws prescribed a maximum sentence of at least ten years for the
3
offense at the time it was committed, but where New York non-retroactively amended the
Rockefeller drug laws, prior to the federal sentencing in these cases, to reduce the maximum
sentence for the same offense conduct to less than ten years.
BACKGROUND
Darden
Joel Darden was arrested on February 23, 2000, for possessing a handgun and
ammunition. Darden pleaded guilty to possessing a firearm after having been previously
convicted of an offense punishable by more than one year imprisonment, in violation of 18
U.S.C. § 922(g)(1). It is undisputed that Darden had been previously convicted of the following
felonies:
1. December 1989: a Class B New York felony of criminal sale of a controlled
substance in the third degree, in violation of New York Penal Law § 220.39.
2. December 1989: an ACCA predicate violent felony.
3. September 1997: an ACCA predicate violent felony.
Darden was sentenced on Septermber 29, 2006. At sentencing, the government argued
that these three prior convictions subjected Darden to the fifteen year mandatory minimum
sentence of the ACCA, in Section 924(e). The sole dispute was whether Darden’s conviction for
the Class B New York drug felony was a conviction for a serious drug offense. In an oral
decision, Judge Johnson determined that the ACCA enhancement applied, without explaining the
basis for his ruling. Judge Johnson sentenced Darden to 180 months for the underlying offense
to run consecutively with a thirty month sentence for the ACCA enhancement,2 five years
supervised release, and a $100 special assessment.
2
It is not clear what Judge Johnson meant by applying a thirty month enhancement for the
ACCA. The ACCA creates a mandatory minimum sentence, not an enhancement. We need not
parse the meaning of the imposed sentence, however, because we hold that the ACCA mandatory
minimum does not apply and vacate the sentence.
4
Archer
Ralph Archer was arrested on May 14, 2004, for possessing a handgun. Archer pleaded
guilty to possessing a firearm after having been previously convicted of an offense punishable by
more than one year imprisonment, in violation of 18 U.S.C. § 922(g)(1). It is undisputed that
Archer had been previously convicted of the following felonies:
1. November 1991: an ACCA predicate serious drug offense.
2. February 1995: a Class C New York felony of attempted criminal sale of a
controlled substance in the third Degree, in violation of N.Y. Penal Law §
220.16(1) (“New York Class C attempted drug sale felony”).
3. March 1995: a New York Class C attempted drug sale felony.3
Archer was sentenced on August 25, 2006. At sentencing, the government argued that
these four prior convictions subjected Archer to the fifteen year mandatory minimum sentence of
the ACCA, in Section 924(e). The sole dispute was whether Archer’s convictions for the New
York Class C attempted drug sales were convictions for serious drug offenses. Judge Holwell
determined that the ACCA enhancement did not apply, explaining in a written decision that “the
definition of ‘serious drug offense’ in the ACCA is properly interpreted as directing the court to
look at the maximum term of imprisonment currently prescribed by state law,” which he
determined to be less than ten years for the New York Class C attempted drug sales. United
States v. Archer, 461 F. Supp. 2d 213, 221 (S.D.N.Y. 2006). Judge Holwell sentenced Archer to
105 months in prison, three years of supervised release, and a $100 special assessment.
3
Archer also had a youthful offender adjudication in September 1991, which, if counted,
would constitute an ACCA predicate violent felony. Following the district court, we need not
decide whether Archer’s youthful adjudication was a predicate offense because Archer’s status as
a career offender wholly turns on whether his two New York Class C convictions were
convictions for serious drug offenses.
5
Villegas
Pedro Villegas was arrested on November 17, 2005, for possessing a handgun. Villegas
pleaded guilty to possessing a firearm after having been previously convicted of an offense
punishable by more than one year imprisonment, in violation of 18 U.S.C. § 922(g)(1). It is
undisputed that Villegas had previously been convicted of the following felonies:
1. December 1987: a New York Class C attempted drug sale felony.
2. February 1993: an ACCA predicate violent felony.
3. November 1997: an ACCA predicate serious drug offense.
Villegas was sentenced on December 5, 2006. The Government argued that these three
prior convictions subjected Villegas to the fifteen year mandatory minimum sentence of the
ACCA, in Section 924(e). The sole dispute was whether Villegas’s conviction for the New York
Class C attempted drug sale was a conviction for a serious drug offense. In an oral decision,
Judge Amon determined that the ACCA enhancement did not apply, explaining that, under the
rule of lenity, the maximum sentence prescribed by current New York law for Villegas’ Class C
drug felony is less than ten years. Judge Amon sentenced Villegas to ninety-six months in
prison, three years of supervised release, and a $100 special assessment.
Williams
Andre Williams was arrested on May 6, 2006, for possessing a handgun. Williams
pleaded guilty to possessing a firearm after having been previously convicted of an offense
punishable by more than one year imprisonment, in violation of 18 U.S.C. § 922(g)(1), and to
possessing a firearm with the serial numbers obliterated, in violation of 18 U.S.C. § 922(k). It is
undisputed that Williams had been previously convicted of the following felonies:
1. June 1990: a New York Class C attempted drug sale felony.
2. August 1993: an ACCA predicate violent felony.
3. August 1993: an ACCA predicate violent felony.
6
Williams was sentenced on May 18, 2007. At sentencing, the government argued that
these three prior convictions subjected Williams to the fifteen year mandatory minimum sentence
of the ACCA, in Section 924(e). The sole dispute was whether Williams’ conviction for the
New York Class C attempted drug sale was a conviction for a serious drug offense. Judge
Gleeson determined that the ACCA enhancement did not apply, having explained in a
preliminary written decision that the plain meaning of the ACCA compels the conclusion that
Williams’ conviction for the New York Class C drug felony was not a conviction for a serious
drug offense. United States v. Williams, 462 F. Supp. 2d 342 (E.D.N.Y. 2006). Judge Gleeson
sentenced Williams to eighty-four months in prison, three years of supervised release, and a $200
special assessment.
2004 Rockefeller Drug Law Reform Act
In 2004, after a protracted and very public debate, see People v. Denton, 793 N.Y.S.2d
886, 891 (Sup. Ct. Kings County 2005), rev’d on other grounds by 839 N.Y.S.2d 120 (App. Div.
2d Dep’t 2007), New York passed the Rockefeller Drug Law Reform Act (“Reform Act”), which
significantly lowered the maximum terms of imprisonment prescribed for certain drug offenses,
including Class B and Class C felony drug offenses. See N.Y. Penal Law § 70.70 (McKinney
2004); 2004 N.Y. Laws Ch. 738 § 36 (effective Jan. 13, 2005). The Reform Act did not amend
the statutory definitions or classifications of the underlying offenses. Except for a technical
amendment in 1995, see 1995 N.Y. Laws Ch. 75, § 7, the definition and classification of the
statutory offenses has not been altered since these defendants were convicted in state court.
Under the Rockefeller drug-sentencing laws in place at the time of the defendants’ state
convictions, a maximum term of at least ten years imprisonment was prescribed by New York
7
law for Class B and Class C drug offenses. See N.Y. Penal Law § 70.00(2). Under the current
sentencing laws introduced by the Reform Act, the maximum term of imprisonment prescribed
by law for the Class C drug offenses committed by Archer, Villegas and Williams, and for the
Class B drug offense committed by someone, such as Darden, with no prior drug felonies, is less
than ten years. See N.Y. Penal Law §§ 70.70(4)(b)(ii) (providing that maximum sentence for
Class C drug felony committed by someone in worst criminal history class is nine years) and
70.70(2)(a)(i) (providing that maximum sentence for Class B drug felony committed by first-time
felony drug offender is nine years). The Reform Act, however, did not become effective until
January 13, 2005, and the current sentencing laws do not apply to crimes committed before the
effective date. See People v. Utsey, 7 N.Y.3d 398, 401 (2006).
Thus, if the defendants were to engage in the same conduct today, their offenses would
carry a maximum term of less than ten years. However, because the Reform Act is not
retroactive, if the defendants were somehow sentenced today for the specific, pre-Reform-Act
conduct that led to their prior convictions, the defendants would be subject to a maximum term
of at least ten years.
DISCUSSION
The ACCA defines a “serious drug offense,” in relevant part, as “an offense under State
law . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.”
18 U.S.C. § 924(e)(2)(A)(ii). The sole issue consolidated for disposition on appeal is whether a
prior state conviction was a conviction for a “serious drug offense” within the meaning of the
ACCA, where state law prescribed a maximum sentence of at least ten years for the offense at the
time of the state conviction but state law, prior to federal sentencing, prospectively reduced the
8
maximum sentence to less than ten years for the same offense conduct.4 This is an issue of first
impression in our circuit. Because the issue turns solely on an interpretation of a federal statute,
our review is de novo. See, e.g., United States v. King, 325 F.3d 110, 113 (2d Cir. 2003).
In order to resolve this issue, we must first decide whether to apply the state’s current
sentencing laws or the state’s sentencing laws in place at the time of the state conviction.
Because we conclude that the ACCA directs courts to apply the state’s current sentencing laws,
we must next decide whether the maximum term currently prescribed by New York state law for
these offenses is at least ten years. Under the Reform Act, these offenses are punishable by a
maximum term of less than ten years. A complication arises, however, because due to a
prospective effective-date clause in the Reform Act, New York continues to permit the
imposition of a maximum term greater than ten years for offenses committed before the Reform
Act’s effective date.
I. Current State Law
We first address whether, in determining the maximum term that is prescribed by state
law for an offense, we should examine current state law or the state law in place at the time of the
state conviction. Following every court to reach the issue, we conclude that sentencing courts
4
We do not address the question of how to treat a state law, enacted after the state
conviction but prior to federal sentencing, that increases the penalty for a drug crime. This might
raise ex post facto concerns, which we have no occasion to consider. Cf. United States v.
Keigue, 318 F.3d 437, 442 (2d Cir. 2003) (“The Sentencing Guidelines explicitly mandate that a
court use the version of the Guidelines in effect on the date of the defendant’s sentencing. The
exception to this rule arises when the version of the Guidelines in effect at the time of sentencing
is more ‘severe,’ than the version in effect when the offense was committed. In such cases, there
is an ex post facto problem and the earlier Guidelines should be applied.” (internal citations and
quotation marks omitted)).
9
should examine current state law.5 See United States v. Morton, 17 F.3d 911, 915 (6th Cir.
1994); United States v. Hammons, 438 F. Supp. 2d 125, 128 (E.D.N.Y. 2006);6 Archer, 461 F.
Supp. 2d at 219; Williams, 462 F. Supp. 2d at 345; cf. United States v. Hinojosa, 349 F.3d 200,
205 (5th Cir.2003) (applying current state law, but not deciding whether current or past state law
governs). Our reason is simple: the ACCA’s definition of a “serious drug offense” uses the
present tense in referring to the applicable state law. If Congress had wanted sentencing courts to
examine the state law in place at the time of the state conviction, it could have easily so provided
by defining a “serious drug offense” as “an offense under state law . . . for which a maximum
term of imprisonment of ten years was prescribed by law at the time of conviction.” Rather than
choosing this course, Congress enacted the ACCA, which refers to the maximum sentence that
“is prescribed” by state law. The present tense signals that sentencing courts should examine the
state’s current sentencing scheme. See Hammons, 438 F. Supp. 2d at 130 (“The present tense of
the verb ‘is’ denotes that the current sentencing structure is relevant, rather than the sentence that
was prescribed by law at the time of the earlier crime.”); Williams, 462 F. Supp. 2d at 344
(“There is no linguistic or . . . logical basis for reading the statute to embrace those state drug
convictions for which a maximum term of imprisonment of ten years or more was prescribed by
law . . . . In short, ‘is’ means ‘is,’ not ‘is or was . . . .’”).
5
In Darden, Judge Johnson concluded that the conviction was for a serious drug offense,
but did not explain the basis of this conclusion. It is therefore unclear whether Judge Johnson
determined that prior state law applied or that current state law applied, but the maximum term
prescribed by current state law is more than ten years.
6
In Hammons, Judge Trager concluded that a pre-Reform-Act conviction for a New York
Class C drug felony was not a conviction for a serious drug offense. No appeal was taken from
that decision.
10
Moreover, this plain reading of the statute is confirmed by the statute’s purpose.
Congress could have defined a “serious drug offense” in a any number of ways: Congress could
have defined the seriousness of a drug offense in terms of the weight and type of the drugs
involved; Congress could have defined the seriousness of a drug offense in terms of the actual
state sentence imposed on the particular defendant. Rather, Congress defined the seriousness of
a drug offense in terms of the maximum sentence that is prescribed by state law. As the Supreme
Court recently explained, the purpose of this definition is to defer to the sentencing policy of
each state as the measure of the seriousness of the drug offense.
In § 924(e)(2)(A)(ii), Congress chose to rely on the ‘maximum term of imprisonment . . .
prescribed’ by state law as the measure of the seriousness of state offenses involving the
manufacture, distribution, or possession of illegal drugs. Congress presumably
thought–not without reason–that if state lawmakers provide that a crime is punishable by
10 years’ imprisonment, the lawmakers must regard the crime as ‘serious,’ and Congress
chose to defer to the state lawmakers’ judgment.
United States v. Rodriquez, 128 S.Ct. 1783, 1790 (2008)7; see Morton, 17 F.3d at 915 (“What is
evident . . . is that section 924(e)(2)(A)(ii), by looking to state sentencing law, leaves the standard
by which to judge the seriousness of a state drug conviction to the policy of the state.”).
In light of this statutory purpose, it was eminently reasonable for Congress to defer to the
state lawmaker’s current judgment rather than to the state lawmaker’s discarded judgment. Thus,
a consideration of the statutory purpose confirms our plain reading of the statute’s text: judges
should examine the state law in place at the time of the federal sentencing.8
7
There was no suggestion in Rodriquez that the relevant maximum terms had been
amended since the state conviction; thus, the Rodriquez Court had no occasion to consider
whether, after an intervening amendment, the state’s current or prior law should be consulted.
8
All of the defendants committed the felon-in-possession offense prior to the enactment
of the Reform Act but all of them were sentenced in federal court subsequent to the Reform Act’s
effective date. The ACCA directs courts to examine the maximum term “that is” prescribed by
state law. Courts make this assessment at the time of federal sentencing. The present tense of
the statute thus dictates that courts should examine the state law in place at the time of the federal
11
II. Non-Retroactivity
We next address whether, under current New York law, the maximum sentence
prescribed for the defendants’ offenses is at least ten years. The difficulty is that New York’s
current law is not retroactive. There are two apparently conflicting decisions on this issue in our
sister circuits.
In Morton, the Sixth Circuit reasoned that it was “evident” that “section 924(e)(2)(A)(ii),
by looking to state sentencing law, leaves the standard by which to judge the seriousness of a
state drug conviction to the policy of the state.” 17 F.3d at 915. Accordingly, because, at the
time of federal sentencing, “the State of Tennessee did not consider [the defendant’s drug
offense] . . . serious enough to impose a ten-year sentence,” the Court concluded that the
defendants’ prior conviction was not a serious drug offense. Id. The Morton Court did not
explicitly discuss whether the amended state statute was made retroactive, but the Court noted
that, as in this case, the state statute had an explicit, prospective effective date. Id. at 914.9
In Hinojosa, the Fifth Circuit attempted to distinguish Morton on the ground that the
amended state statute relevant to Hinojosa’s conviction, which reduced the maximum term of
sentencing, not the state law in place at the time when the federal offense was committed. See
Morton, 17 F.3d at 915 (applying state law in place at time of federal sentencing); cf. Keigue,
318 F.3d at 442 (“The Sentencing Guidelines explicitly mandate that a court use the version of
the Guidelines in effect on the date of the defendant’s sentencing.”).
9
The Morton Court explained that under the amended Tennessee statute, the defendant’s
offense conduct “has been reclassified from a Class B to a Class C felony,” which carries a lower
sentence. 17 F.3d at 914. In an unpublished decision, a Tennessee appellate court explained that
when a person committed a Class B offense prior to this statute’s effective date, which was
reclassified to a less serious Class C offense before his sentencing, “the trial court had the
authority to impose class B felony sentences for the convictions.” Williams v. State, 2004 WL
948370, at *4 (Tenn. Crim. App. 2004). If this is correct, then the Tennessee statute is not
retroactive in the relevant sense.
12
imprisonment to less than ten years, was not made retroactive. 349 F.3d at 205. Relying on the
non-retroactivity of the amended state statute, the Hinojosa Court held that the prior state
conviction was for a serious drug offense because if the defendant “were sentenced by the state
court for those crimes today, he would still be subject to a maximum term of at least ten years.”
Id. 10
There are two ways of framing the relevant question: First, it might be asked, following
the Hinojosa Court, what maximum term is prescribed by current state law for someone who
committed the offense conduct on the date the defendant committed the offense. Second, it might
be asked what maximum term is prescribed by current state law for the offense conduct, without
regard to the date on which the defendant happened to commit the offense. The choice between
these two methods of framing the question turns on whether the date of the commission of the
offense is properly regarded as part of the “offense . . . for which” the maximum term is
prescribed by law. 18 U.S.C. § 924(e)(2)(A)(ii).11
10
As discussed above, all four district courts in our circuit that explained their decisions
on this issue held that, notwithstanding the non-retroactivity of the Reform Act, the maximum
sentence proscribed by current New York law for the offenses at issue in the present case is less
than ten years.
11
The choice might also turn on a constitutional problem potentially created by the first
method of framing the question. In New York, a defendant sentenced today who committed the
offense prior to January 13, 2005, is subject to a higher maximum term than someone who
committed the identical offense after that date. In this way, the fact that the offense was
committed prior to January 13, 2005, is a fact used to increase the maximum term of
imprisonment. However, under the Apprendi line of cases, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). The difficulty is that, because the New York penal law
does not criminalize the timing of the offense, the timing of these offenses was not submitted to a
jury, and proved beyond a reasonable doubt. Thus, if a state court were to sentence these
defendants today, it is not clear whether the state court could, consistent with the Sixth
Amendment, take account of the timing of their offenses to increase their maximum term, given
13
The Supreme Court’s recent Rodriquez decision, which addressed the same definition in
the ACCA of a “serious drug offense,” causes us to examine the issue a bit more closely. The
key statutory terms are “offense,” “law” and “maximum term.” Rodriquez, 128 S.Ct. at 1787. In
Rodriquez, the Supreme Court explained that an “offense” simply means the violation of the
governing criminal statute. 128 S.Ct. at 1787.12 Here, the New York statutes defining the
offense conduct, and setting out the felony classifications, have not been meaningfully amended
since the state convictions. Thus, Darden’s relevant “offense” is having sold a controlled
substance, of a statutorily specified weight and type class, in violation of New York Penal Law §
220.39; Archer’s, Williams’ and Villegas’ relevant offenses are having attempted to sell
controlled substances, of a statutorily specified weight and type class, in violation of New York
that this fact was not submitted to the jury or necessarily made part of their convictions. This
problem did not arise in Rodriquez because that case dealt with the fact of a prior conviction,
which falls within the Apprendi exception. By contrast, the Supreme Court has never created a
Sixth Amendment exception for using the fact of offense-timing to increase a maximum term.
12
When this case was briefed and argued, the parties relied heavily on Taylor v. United
States, 495 U.S. 575 (1990). In Rodriquez, the Supreme Court saw “no connection . . . between
the issue in Taylor (the meaning of the term ‘burglary’ in § 924(e)(2)(B)(ii)) and the issue here
(the meaning of the phrase ‘maximum term of imprisonment . . . prescribed by law’ under §
924(e)(2)(A)(ii)).” 128 S.Ct. at 1790. In holding that an “offense” simply means the violation
of the governing statute, the Rodriquez Court appeared to reject Rodriquez’s argument that,
under Taylor and common usage, an “offense” is “generally . . . understood to describe the
elements constituting a crime.” Id. at 1788. If the statutory term “offense” were interpreted to
mean the elements constituting a crime, and the “maximum term” referred to the maximum term
prescribed for someone who committed the basic offense elements, the defendants in this case
would certainly prevail because there can be no suggestion that the timing of the illegal drug
conduct, nowhere mentioned in the governing penal law, is an element of the drug offenses under
New York law. As will be discussed below, the Rodriquez Court’s definition of “offense,”
interpreted in light of the ACCA’s purpose, yields similar results: conduct that increases a
maximum term of imprisonment is part of the “offense” to which the “maximum term” is tied
only if the state views that conduct as bearing on the seriousness of the offense.
14
Penal Law § 220.16(1). The “law” is the state law that prescribes the applicable sentencing range
for the offense and the “maximum term” is the maximum sentence that can be imposed for the
offense. Rodriquez, 128 S.Ct. at 1787-88.
In Rodriquez, the question was whether the “maximum term of imprisonment” for the
purposes of § 924(e)(2)(A)(ii) is determined with or without reference to recidivist
enhancements. Id. at 1787. The state sentencing law prescribed a maximum term of five years’
imprisonment for a first-time violator of the drug-trafficking statute but a maximum term of ten
years’ imprisonment for a subsequent violator of the same drug-trafficking statute. Id. at 1786-
87. The Court held that the increased maximum term applicable to recidivists was the maximum
term prescribed for the offense by state law. Id. at 1788. The defendant had argued, in effect,
that the state law punished two different offenses: the state punished the drug-trafficking offense
by a maximum term of five years and the state punished the offender’s status as a recidivist by an
additional maximum term of five years. Id. Thus, the defendant argued, the maximum term
prescribed by law for the drug-trafficking offense was only five years. Id. Similarly, the
defendant, drawing on the ACCA definition’s purpose of deferring to state lawmakers’ judgment
about the seriousness of a drug-trafficking offense, argued that the increased maximum term
applicable to recidivists should not be used to measure the seriousness of the drug-trafficking
offense because the defendants’ status as a recidivist has no bearing on the seriousness of the
drug-trafficking offense. Id. at 1789. The Court rejected this argument on the ground that it
“rest[ed] on the erroneous proposition that a defendant’s prior record of convictions has no
bearing on the seriousness of an offense.” Id. As the Court explained, “an offense committed by
a repeat offender is often thought to reflect greater culpability and thus to merit greater
punishment.” Id.
15
More broadly, the Court rejected the premise, common to both arguments, that recidivist
statutes punish something other than the offense of conviction.
If [the defendant] were correct that a defendant’s record of prior convictions has no
bearing on the seriousness of an offense, then it would follow that any increased
punishment imposed under a recidivist provision would not be based on the offense of
conviction but on something else–presumably the defendant’s prior crimes or the
defendant's “status as a recidivist.” But we have squarely rejected this understanding of
recidivism statutes. . . . [T]his Court consistently has sustained repeat-offender laws as
penalizing only the last offense committed by the defendant. When a defendant is given a
higher sentence under a recidivism statute . . . 100% of the punishment is for the offense
of conviction. None is for the prior convictions or the defendant's “status as a recidivist.”
The sentence is a stiffened penalty for the latest crime, which is considered to be an
aggravated offense because [it is] a repetitive one.
Id. at 1789 (internal quotation marks and citations omitted; third alteration in original). It is not
clear whether the Court considered the defendant’s recidivism to be part of the offense of
conviction.13 What is clear is that the Court determined that when a state prescribes a higher
maximum term based on the recidivist nature of the offense, “100% of the punishment is for the
offense of conviction.” Id. (emphasis added).
We do not read this discussion as dicta. Both the text and the purpose of the ACCA
definition of a “serious drug offense” require an analysis of whether an enhanced maximum term
is for the drug-trafficking offense of conviction. The ACCA defines a “serious drug offense” as
a drug-trafficking “offense . . . for which a maximum term of imprisonment of ten years or more
is prescribed by law.” 18 U.S.C. 924(e)(2)(A)(ii). Thus, the ACCA’s text requires a
determination of whether an enhanced maximum term is punishment for the drug-trafficking
13
On the one hand, the Rodriquez Court stated that a recidivist offense is an “aggravated
offense,” suggesting that recidivism is part of the (aggravated) offense. Id. On the other hand,
the Rodriquez Court stated that “[t]he ‘offense’ in each of the drug-delivery cases was a violation
of [Revised Code of Washington] §§ 69.50.401(a)(ii)-(iv).” Id. at 1787-88. The referenced
Washington statute, which defines the drug-trafficking crime, makes no mention of recidivism,
suggesting that recidivism is not part of the offense.
16
offense. Similarly, and perhaps more important, the purpose of the ACCA definition is to “defer
to state lawmakers’ judgment” of the seriousness of a drug offense, Rodriquez, 128 S.Ct. at 1790,
as expressed in the state’s current sentencing laws. If a state determines that a drug-trafficking
offense merits less than ten years’ maximum imprisonment, but permits the imposition of a
higher maximum sentence in an individual case for technical reasons that have no bearing on the
state’s current view of the seriousness of the offense, it would frustrate the purpose of the ACCA
to conclude that the drug-trafficking offense is a serious one. Cf. Begay v. United States, 128
S.Ct. 1581, 1587 (2008) (interpreting the ACCA’s parallel definition of a “violent felony” as
“viewed in terms of the Act’s basic purposes”).
Accordingly, following the Rodriquez Court, we conclude that conduct that increases the
maximum term of imprisonment is part of the “offense of conviction,” to which the “maximum
term” is tied for purposes of the ACCA, only if the conduct, in the state’s view, bears on the
“seriousness of [the] offense.” Rodriquez, 128 S.Ct. at 1789. The question, at bottom, is
whether, in punishing the earlier timed nature of the offense more severely, the state is meting
out extra punishment for the drug-trafficking offense of conviction.
As the Rodriquez Court explained, there is no question that a subsequent drug-trafficking
offense is a “more serious” drug-trafficking offense than a first drug-trafficking offense, which
the state views as deserving “greater punishment.” See id. at 1789. Our question is whether,
under New York law, the fact that a drug offense was committed before January 13, 2005, makes
the offense “more serious” than an offense committed after that date.
To be sure, there are some crimes that are more or less serious depending on the timing of
the offense conduct. See, e.g., United States v. Mortimer, 52 F.3d 429, 434 (2d Cir. 1995)
(noting that “failure to register for a military draft may be a more serious offense punished more
17
harshly during a time of war than in peacetime”). But a drug crime is not plausibly in this
category. The Reform Act, and its legislative history, amply confirm that New York does not
view drug crimes committed before January 13, 2005, as “more serious” than drug crimes
committed after that date. Rather, the non-retroactivity provision was almost surely enacted to
combat problems of retroactive administration. See Hammons, 438 F. Supp. 2d at 130 (“Were
the statute made fully retroactive to all classes of felonies, implementing this provision to
possibly thousands of cases would be an enormous burden on the state court system.”).
To begin, unlike the explicit statutory recidivism enhancement at issue in Rodriquez, the
Reform Act does not contain an explicit enhancement for drug crimes committed before January
13, 2005. Rather, the only indication in the Reform Act that drug crimes committed before the
effective date would remain subject to the higher maximum terms is found in the Reform Act’s
effective-date clause. Except for the lingering effects created by this effective-date clause, the
Rockefeller drug sentencing laws were repealed entirely.
Second, the legislative history of the Reform Act amply confirms that the purpose of the
Reform Act was to replace the harsh Rockefeller sentencing laws with more appropriate
sentencing laws, not to recognize a new class of drug offenses that were less serious because they
were committed after the statute’s effective date. The legislative sponsors of the New York bill,
in a section described as “justification” for the sentencing reductions, described the Rockefeller
drug laws as providing “inordinately harsh punishment for low level non-violent drug offenders”
as well as misdirecting public funds for the incarceration of these offenders. See New York
Sponsors Memorandum, Ch. 738 (2004) (“New York’s ‘Rockefeller Drug Laws’ have been the
subject of intense criticism for many years. The current laws provide inordinately harsh
punishment for low level non-violent drug offenders, warehouse offenders in state prison who
18
could more productively be placed into effective drug treatment programs and waste valuable
state tax dollars which could be used more effectively to provide drug treatment to addicts and
harsh punishment to violent criminals.”). The governor, in calling for the legislation, expressed a
similar categorical rejection of the harshness of the Rockefeller sentencing laws. See Governor’s
State of the State Address delivered January 7, 2004, 2004 McKinney's Session Law News of
N.Y., No. 1, at A-14 (Apr. 2004) (“The Rockefeller Drug Laws allow non-violent drug offenders
to be more severely punished than rapists. We need to change that. Let’s reform these antiquated
laws this year.”). The consistent view of these state lawmakers was that the Rockefeller drug-
sentencing laws were too severe, then as now.
If there is any doubt that the Reform Act reflected a categorical rejection of the harshness
of the Rockefeller sentencing laws, no matter when the underlying offenses occurred, this doubt
is dispelled by the Reform Act’s inclusion of unique sentencing reductions for those sentenced
under the discarded, “inordinately harsh” Rockefeller laws. Prisoners convicted under the old
laws for Class B and Class C drug felonies were granted unique, expanded opportunities to
qualify for sentencing reductions that substantially lowered their sentences (from up to one-sixth
to, in some instances, one-third of the sentence imposed) and to obtain early termination of
parole. See N.Y. Laws Ch. 738, §§ 7, 8, 30 (2004); Utsey, 7 N.Y.3d at 403 (noting that the
statute includes “ameliorative provisions designed to afford distinct sentencing relief to
defendants who committed their crimes prior to its effective date”). This confirms that, in the
state’s view, the new policy of lowered sentences should be made available to everyone
convicted of these drug offenses, no matter when the offenses were committed.
In sum, “there is no reason to believe that the nonretroactivity of the Reform Act reflects
a state legislative view that pre-Reform Act drug felonies were categorically more serious than
19
those taking place after it was enacted.” Williams, 462 F. Supp. 2d at 347; see also Hammons,
438 F. Supp. 2d at 129-30. Accordingly, we conclude that the timing of the offense conduct is
not part of the offense of conviction to which the maximum term is tied for purposes of the
ACCA.
There is a final reason why we do not consider the state’s non-retroactivity decision
significant in this context. The Supreme Court recently explained that the decision whether to
make a newly recognized legal right retroactive is normally a remedial decision that should not
be confused with an assessment of the temporal scope of the legal right. See Danforth v.
Minnesota, 128 S.Ct. 1029, 1035 (2008) (“What we are actually determining when we assess the
‘retroactivity’ of a new rule is not the temporal scope of a newly announced right, but whether a
violation of the right that occurred prior to the announcement of the new rule will entitle a
criminal defendant to the relief sought.”). Similarly here, the Reform Act reflects the state’s
current normative judgment about the seriousness of these offenses and this normative judgment
plainly applies to past crimes as well as new crimes. The state’s decision not to make its current
sentencing laws retroactive–but rather to redress the inequities created by the state’s
“inordinately harsh” sentencing laws through other ameliorative provisions–is a remedial
decision, which has no bearing on the state’s current view that drug crimes of this nature, no
matter when committed, merit less than a ten year maximum sentence.
Because the ACCA instructs courts to defer to state lawmakers’ current judgment about
the seriousness of an offense as expressed in their current sentencing laws, we defer to New
York’s current judgment that these offenses merit less than a ten year maximum sentence. See
Williams, 462 F. Supp. 2d at 345 (“For first time C drug felons, the ‘New Law’ prescribes a five
and one-half year maximum. That is the maximum sentence that is now prescribed by New York
20
law. That a dwindling class of offenders may still be subject to sentencing under the ‘Old Law’
does not alter the fact that it is the old law.” (internal citation omitted)); Hammons, 438 F. Supp.
2d at 130 (“By lowering the sentences in certain instances and providing other forms of
amelioration, the State brought already pronounced sentences more in line with its present view
of the seriousness of the crimes. This policy decision by the State–not the mechanical result of
applying the current sentencing structure to Hammons’ past crimes--is what should determine,
for federal law purposes, whether ACCA should apply.”).
CONCLUSION
The ACCA, interpreted in light of its purpose, leaves no ambiguity: the maximum
sentence that “is prescribed” by state law for these offenses is less than ten years. However, if
any ambiguity remained, there being no contrary legislative history, see Archer, 461 F. Supp. 2d
at 219 n. 4, and there being a strong argument to interpret the statute in the way we do, we would
apply the rule of lenity to reach the same conclusion. See United States v. R.L.C., 503 U.S. 291,
305 (1992) (“We do not think any ambiguity survives. If any did, however, we would choose the
construction yielding the shorter sentence by resting on the venerable rule of lenity rooted in the
instinctive distaste against men languishing in prison unless the lawmaker has clearly said they
should.” (internal citation omitted)).
For the foregoing reasons, Darden’s sentence is vacated and the matter is remanded;14
Archer’s and Villegas’s sentences are affirmed; and Williams’s sentence is affirmed in part.15
14
Darden also challenges the reasonableness of his sentence. Because we vacate his
sentence, we have no occasion to rule on the reasonableness of a sentence not yet imposed.
15
Williams’ request to defer briefing on his cross-appeal is granted and the clerk’s office
is directed to set a briefing schedule for his cross-appeal.
21
United States v. Darden
Court: Court of Appeals for the Second Circuit
Date filed: 2008-08-15
Citations: 539 F.3d 116
Copy CitationsCombined Opinion