United States v. Smith

08-3859-cr
United States v. Smith
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12 th day of May, two thousand ten.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 08-3859-cr
ODIS LAMAR SMITH,
Defendant-Appellant.
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APPEARING FOR APPELLANT: MARK D. HOSKEN (Jay S. Ovsiovitch, on the
brief), Federal Public Defender’s Office, Western
District of New York, Rochester, New York.
APPEARING FOR APPELLEE: JOSEPH J. KARASZEWSKI, Assistant United
States Attorney, for Kathleen M. Mehltretter,
Acting United States Attorney for the Western
District of New York, Buffalo, New York.
Appeal from the United States District Court for the Western District of New York
(Charles J. Siragusa, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on August 4, 2008, is AFFIRMED in part and
VACATED in part and the case is REMANDED for further proceedings.
Defendant Odis Lamar Smith pleaded guilty to possession with intent to distribute and
distribution of 50 grams or more of cocaine base, see 21 U.S.C. § 841(a)(1), and possession
of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1). Smith
contends that his 240-month prison sentence is procedurally unreasonable because the district
court (1) ordered that prison terms of 180 months on the narcotics count and 60 months on
the firearms count run consecutively and (2) sentenced him as a career offender based in part
on his 1995 New York state adjudication as a “youthful offender.” We assume familiarity
with the facts and procedural history, which we reference only as necessary to explain our
decision.
1. The Imposition of Consecutive Sentences Was Not Required
Title 18 U.S.C. § 924(c)(1)(A) criminalizes the use or carrying of a firearm during and
in relation to a crime of violence or a drug trafficking crime and imposes specified mandatory
minimum terms of incarceration in addition to the punishment provided for the underlying
crime “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d
Cir. 2008), we interpreted this “except” clause to mean that a mandatory minimum sentence
prescribed under § 924(c) need not run consecutively to any greater mandatory minimum
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sentence. See id. at 153. In United States v. Williams, 558 F.3d 166 (2d Cir. 2009), we
extended Whitley, holding that a district court’s contrary interpretation of § 924(c)
constituted plain error. See id. at 169 n.2, 176.
Here, ruling before Whitley and Williams, the district court concluded that Smith’s
mandatory minimum sentence of 60 months’ incarceration on his § 924(c) conviction must
run consecutively to his sentence on his narcotics conviction under 21 U.S.C. § 841(a), even
though the latter conviction carried a mandatory minimum of 120 months’ imprisonment.
See 21 U.S.C. § 841(b)(1)(A). This ruling, though not objected to below, was plain error
requiring a remand for resentencing.1 See United States v. Williams, 558 F.3d at 170. In
resentencing Smith, the district court of course retains discretionary authority to impose a
consecutive sentence consistent with its responsibility under 18 U.S.C. § 3553. See United
States v. Whitley, 529 F.3d at 158.
2. The Guidelines Calculation Was Not an Abuse of Discretion
Smith contends that the district court further erred by sentencing him as a “career
offender” under § 4B1.1 of the Sentencing Guidelines based in part on his 1995 adjudication
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We are mindful that the United States has petitioned for a writ of certiorari in
Williams, see United States v. Williams, 558 F.3d 166 (2d Cir. 2009), petition for cert. filed,
78 U.S.L.W. 3254 (U.S. Oct. 20, 2009) (No. 09-466), and that the Supreme Court has in fact
granted certiorari in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert. granted, 130
S. Ct. 1284 (Jan. 25, 2010) (No. 09-479), and United States v. Gould, 329 F. App’x 569 (5th
Cir. 2009), cert. granted, 130 S. Ct. 1283 (Jan. 25, 2010) (No. 09-7073), which also address
mandatory consecutive sentencing under § 924(c). Nevertheless, in the absence of any
contrary authority from the Supreme Court, our existing precedents compel the conclusion
that the imposition of a mandatory consecutive sentence in the instant case was plain error.
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as a “youthful offender” under New York law. We review the district court’s interpretation
of the Sentencing Guidelines de novo, see United States v. Cuello, 357 F.3d 162, 164 (2d Cir.
2004), and its application of the Guidelines in a particular case for abuse of discretion, see
United States v. Parker, 577 F.3d 143, 147 (2d Cir. 2009).
A defendant is a career offender if “(1) [he] was at least eighteen years old at the time
[he] committed the instant offense of conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled substance offense; and (3) [he] has
at least two prior felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). A “prior felony conviction” is defined as “a prior adult
federal or state conviction for an offense punishable by death or imprisonment for a term
exceeding one year.” Id. § 4B1.2 Application Note 1. “A conviction for an offense
committed prior to age eighteen is an adult conviction if it is classified as an adult conviction
under the laws of the jurisdiction in which the defendant was convicted.” Id. There is no
dispute that Smith satisfied the first two elements. The district court concluded that he
satisfied the third based on 1995 and 1997 state convictions for second-degree robbery.
Because Smith was fourteen years old when he engaged in the conduct underlying the
1995 conviction, he was prosecuted as a “juvenile offender” under N.Y. Penal Law
§ 30.00(2), which permits a fourteen-year-old charged with second-degree robbery to be tried
as an adult. See also N.Y. Penal Law § 10.00(18) (defining “juvenile offender”); In re
Raymond G., 93 N.Y.2d 531, 536, 693 N.Y.S.2d 482, 488 (1999) (describing intent of
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legislature that “juvenile offenders will, as a general rule, be prosecuted as adults”). Further,
Smith’s conviction was vacated and replaced with a “youthful offender” adjudication. See
N.Y. Crim. Proc. Law § 720.35. Such “youthful offender” treatment is available to “juvenile
offenders” at the discretion of the sentencing court, see id. § 720.10; People v. Victor J., 283
A.D.2d 205, 206, 724 N.Y.S.2d 162, 163 (1st Dep’t 2001), and affords certain procedural
protections, see N.Y. Crim. Proc. Law § 720.35 (providing, inter alia, that record of youthful
offender adjudication must be sealed). Smith was sentenced to one to three years’
incarceration, and he served one year in a secure facility operated by New York’s Division
of Youth.
As Smith acknowledges, a youthful offender adjudication may constitute a prior
felony conviction for purposes of U.S.S.G. § 4B1.1. See United States v. Jones, 415 F.3d
256, 264 (2d Cir. 2005). Smith argues, however, that his 1995 youthful offender adjudication
was not an adult conviction because he did not serve his sentence in an adult correctional
facility. We disagree. To be sure, our decision in Jones took account of the facility in which
the defendant was incarcerated. See id. (“Thus, Jones’s 1993 youthful offender adjudications
should be deemed ‘adult convictions’ as Jones (1) pleaded guilty to both felony offenses in
an adult forum and (2) received and served a sentence of over one year in an adult prison for
each offense.”). But we have also explained that “[t]here is no set formula for determining
‘the substantive consequence of the criminal proceeding underlying the youthful offender
adjudication.’ The determination is a function of many variables, no single one of which is
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dispositive.” United States v. Jackson, 504 F.3d 250, 253 (2d Cir. 2007) (quoting United
States v. Jones, 415 F.3d at 264) (internal citation omitted); see also id. (“At no time in our
holding [in United States v. Sampson, 385 F.3d 183 (2d Cir. 2004)] did we suggest that a
district court must make a finding of fact on the issue of where a defendant served his
youthful offender sentence.”). Moreover, the Guidelines require only that a “prior felony
offense” be “punishable by . . . imprisonment for a term exceeding one year,” U.S.S.G.
§ 4B1.2 Application Note 1 (emphasis added); see also United States v. Carrillo, 991 F.2d
590, 593-94 (9th Cir. 1993) (rejecting argument that conviction resulting in commitment to
California Youth Authority was not adult conviction because “the language and the structure
of the Guidelines and commentary support the government’s interpretation that an ‘adult
sentence’ is any sentence imposed pursuant to an ‘adult conviction’”). Thus, we identify no
error in the district court’s interpretation of the Sentencing Guidelines.
Nor do we detect abuse of discretion in the district court’s application of the
Sentencing Guidelines to Smith’s case. Smith’s 1995 conviction for second-degree robbery
was “classified as an adult conviction under the laws of the jurisdiction,” and was
“punishable by . . . imprisonment for a term exceeding one year.” U.S.S.G. § 4B1.2
Application Note 1. That Smith served his sentence in a youth facility pursuant to the
express requirement of state law, see N.Y. Penal Law § 70.20(4)(a), does not mitigate the
seriousness of his offense, particularly where that offense, like those underlying his second
and third convictions, involved a firearm.
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We have considered Smith’s remaining contentions on appeal, and they are without
merit. Accordingly, the judgment of the district court is AFFIRMED in part and VACATED
in part and the case is REMANDED for resentencing consistent with this decision.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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