United States v. Darden

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.

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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

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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

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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.

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