Opinion
No. 04 Cr. 1381 (RCC).
August 11, 2005
MEMORANDUM ORDER
Latie Whitley ("Defendant") moves to dismiss Count Two of the three-count indictment against him. Count Two charges Defendant with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and provides notice to Defendant that he is subject to a mandatory minimum sentence of fifteen years' imprisonment under the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e), because he has been convicted at least three times in the past for violent felonies or serious drug offenses. Defendant argues that it would violate due process of law to subject him to this mandatory minimum sentence because some of the state statutory definitions of his prior crimes do not necessarily bring those crimes within the ACCA. The motion to dismiss is DENIED.
Count Two alleges that Defendant has four prior state-court convictions for violent felonies and serious drug offenses: (1) attempted criminal sale of a controlled substance in the third degree on March 15, 2000; (2) attempted robbery in the first degree on June 29, 1990; (3) robbery in the third degree on June 18, 1987; and (4) robbery in the second degree on May 13, 1986. All four convictions were allegedly felonies that occurred in New York State courts as the result of crimes committed on separate occasions. A "serious drug offense" under § 924(e) is, among other things, "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. [§] 802)), 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). A "violent felony" under the statute is a crime punishable by imprisonment for more than one year that "(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B).
In determining whether a defendant's prior convictions were for violent felonies or serious drug offenses as defined under the ACCA, a sentencing court ordinarily "look[s] only to the fact of conviction and the statutory definition of the prior offense[s]."Taylor v. United States, 495 U.S. 575, 602 (1990). Defendant seems to contend — although his five-paragraph affidavit is far from clear — that the Court would need to consult the specific facts leading to his prior convictions in order to impose the mandatory minimum sentence of which Count Two gives him warning. But that is not the case. Defendant's alleged prior convictions may be said to fall within the definitions of "serious drug offense" or "violent felony" by simply consulting the state statutory definitions of those crimes.
Attempted criminal sale of a controlled substance in the third degree under New York law involves distributing a controlled substance and prescribes a maximum term of imprisonment of at least ten years, making it a "serious drug offense" under the ACCA. At the time of Defendant's alleged conviction for this offense, New York Penal Law section 220.39 provided, "A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells [a controlled substance]." N.Y. Penal Law § 220.39 (1999). The substantive offense was a Class B felony,id., making a conviction for attempt a Class C felony, id. § 110.05 ("An attempt to commit a crime is a . . . Class C felony when the crime attempted is a [C]lass B felony. . . ."). The maximum sentence for a Class C felony was fifteen years' imprisonment. Id. § 70.00(2)(c) (1997 Supp. 2000). That the crime is inchoate does not take it outside the definition of a serious drug offense. See United States v. King, 325 F.3d 110, 115 (2d Cir. 2003) (holding that attempt to commit a state crime that qualifies as a serious drug offense under § 924(e) is also itself a serious drug offense). Defendant does not contend that New York's definition of a controlled substance is somehow more or less inclusive than the federal definition to which § 924(e) refers. Accordingly, the alleged prior conviction for criminal sale of a controlled substance in the third degree is a "serious drug offense" within the meaning of § 924(e).
Defendant's alleged robbery convictions qualify as violent felonies under the ACCA. All three charges — attempted robbery in the first degree, robbery in the third degree, and robbery in the second degree — were, at the time Defendant was allegedly convicted, punishable by imprisonment for more than one year and had as an element the use, attempted use, or threatened use of physical force against the person of another. The charges included, as a necessary element, actual or attempted forcible stealing of property. See N.Y. Penal Law § 160.15 (1988); id. §§ 160.05, 160.10 (1975). A person forcibly steals property when "in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person." Id. § 160.00 (1975 1988). And all three crimes were punishable by terms of imprisonment of more than one year. The Second Circuit has held that the element of forcible stealing of property makes robbery under New York law a "violent felony" for purposes of the ACCA. United States v. Brown, 52 F.3d 415, 426 (2d Cir. 1995). Therefore, Defendant's alleged convictions for robbery may be considered to impose the mandatory minimum sentence under § 924(e).
In June 1990, attempted robbery in the first degree was a Class C felony punishable by up to fifteen years' imprisonment. N.Y. Penal Law § 160.15 (1988); id. §§ 70.00(2)(c), 110.05 (1987). In June 1987, robbery in the third degree was a Class D felony punishable by up to seven years' imprisonment. Id. § 160.05 (1975); id. § 70.00(2)(c) (1987). In May 1986, robbery in the second degree was a Class C felony punishable by up to fifteen years' imprisonment. Id. § 160.10 (1975); id. § 70.00(2)(d) (1975 Supp. 1987).
For the foregoing reasons, Defendant's motion to dismiss Count Two of the indictment is DENIED.
SO ORDERED.