Elizabeth L. Macchiaverna, United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for United States of America. Allegra W. Glashausser, Federal Defenders of New York, Brooklyn, NY, for Defendant.
Elizabeth L. Macchiaverna, United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for United States of America.
Allegra W. Glashausser, Federal Defenders of New York, Brooklyn, NY, for Defendant.
MEMORANDUM AND ORDER
LaSHANN DeARCY HALL, United States District Judge
On June 13, 2017, Defendant Carlos Cabello was charged in a one-count indictment with knowingly and intentionally possessing a firearm, having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 6.) Cabello pleaded guilty on August 18, 2017.
On June 21, 2018, the Probation Department issued a pre-sentence investigation report (the "PSR"), which provided that Cabello should qualify for a sentencing enhancement under 18 U.S.C. § 924(e), a provision of the Armed Career Criminal Act (the "ACCA"). (PSR ¶ 19, ECF No. 12.) By letter motion dated August 14, 2018, the Government informed the Court that it had not realized, prior to the filing of the PSR, that Cabello may be subject to the ACCA enhancement. (ECF No. 13.) The Government requested a supplemental plea hearing to allow the Court to apprise Cabello of this potential consequence of his plea. (Id .) Before ruling on the Government's request, the Court requested briefing and held an evidentiary hearing to allow the Court to determine whether Cabello indeed qualifies for the ACCA enhancement. As discussed below, he does not.
Under the ACCA, a person convicted of violating 18 U.S.C. § 922(g) who has three previous convictions for "violent felon[ies] or serious drug offense[s]" from events occurring on three separate occasions is subject to a fifteen-year mandatory minimum sentence. § 924(e)(1). This is a significant enhancement. Ordinarily, a person who has been convicted of violating § 922(g) may be sentenced to a maximum term of ten years. § 924(a)(2).
Here, the Probation Department identified three predicate offenses as the bases for applying the ACCA enhancement. (PSR ¶ 19.) Two of those offenses—a 1994 conviction for robbery and a 2013 conviction for the criminal sale of a controlled substance (id. ¶¶ 31, 42)—are not at issue here. The sole predicate offense at issue is Cabello's 1994 conviction for criminal possession of a controlled substance in the third degree. (Id. ¶ 30.) At the time of his conviction, this class-B felony was subject to a maximum sentence of 25 years. N.Y. Penal Law §§ 70.00(2)(b), 220.16 (1994). Pursuant to the ACCA, "an offense under State law" is a "serious drug offense" only if "a maximum term of imprisonment of ten years or more is prescribed by [state] law." § 924(e)(2)(A)(ii). Thus, Cabello's 1994 drug conviction would ordinarily qualify as a serious drug offense for the purpose of the ACCA enhancement. Cabello contends that the ACCA enhancement nonetheless does not apply because New York's Drug Law Reform Act of 2009 (the "2009 DLRA") retroactively reduced the maximum sentence for the offense to nine years, thereby excluding it as a serious drug offense under the ACCA. (Def.'s Sentencing Mem. 14–15, ECF No. 16; Def.'s Sentencing Mem. Suppl. 4–5, ECF No. 19.) The Court agrees.
"Beginning in 2004, the New York State legislature enacted a series of laws to curb the harsh penalties imposed by what had become known as the Rockefeller drug laws—a sentencing scheme signed into law by Governor Nelson Rockefeller in the 1970s." Rivera v. United States , 716 F.3d 685, 687–88 (2d Cir. 2013). The state legislature recognized that the Rockefeller drug laws "provide[d] inordinately harsh punishment for low level non-violent drug offenders, warehouse[d] drug offenders in state prison who could more productively be placed into effective drug treatment programs, and waste[d] valuable state tax dollars which could be used more effectively to provide drug treatment to addicts." People v. Brown , 115 A.D.3d 155, 979 N.Y.S.2d 367, 368 (2014) (quoting Assembly Mem. Supp., Bill Jacket, L. 2004, ch. 738 at 3), aff'd , 25 N.Y.3d 247, 10 N.Y.S.3d 500, 32 N.E.3d 935 (2015). "[A]s the experience with the Rockefeller Drug Laws ... demonstrated, there are extraordinary public costs, both human and economic, to the extended incarceration of low-level drug offenders." People v. Sosa , 18 N.Y.3d 436, 940 N.Y.S.2d 534, 963 N.E.2d 1235, 1239 (2012). In view of the apparent failings of the Rockefeller drug laws, New York enacted the Drug Law Reform Act of 2004 (the "2004 DLRA").
Put simply, "the 2004 DLRA reduced sentences for non-violent drug offenders." Rivera , 716 F.3d at 688. As relevant here, the maximum term of imprisonment for a first-time, non-violent class-B-felony drug offense was reduced to nine years. Compare N.Y. Penal Law § 70.00(2)(b) (providing maximum term of 25 years) with id. § 70.70(2)(a)(i) (providing maximum term of nine years). Under the 2004 DLRA, however, relief was primarily prospective. Rivera , 716 F.3d at 688. In 2009, New York amended the 2004 DLRA and "further reduced penalties for drug-related offenses by allowing resentencing for felons convicted of class B felony drug offenses." Id. To be eligible for resentencing under the 2009 DLRA, an applicant must, among other things, be in the custody of the state corrections department—either in prison or on parole—at the time of his application. People v. Brown , 25 N.Y.3d 247, 10 N.Y.S.3d 500, 32 N.E.3d 935, 249–50 (2015).
"[T]o the extent the 2004 DLRA provided resentencing opportunities, these were limited to individuals who had committed class A–1 offenses." Rivera , 716 F.3d at 689.
In arguing for the application of the ACCA enhancement to Cabello, the Government directs the Court to McNeill v. United States , 563 U.S. 816, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011). (Gov.'s Sentencing Mem. Suppl. 5, ECF No. 18.) In McNeill , the Supreme Court held that, to determine whether a state crime is a serious drug offense under the ACCA, a court must "consult[ ] the ‘maximum term of imprisonment’ applicable to a defendant's previous drug offense at the time of the defendant's state conviction for that offense," not at the time of sentencing. 563 U.S. at 825, 131 S.Ct. 2218 (2011) (quoting § 924(e)(2)(A)(ii) ). As such, the Government contends, Cabello's 1994 drug conviction should be deemed a serious drug offense for the purpose of the ACCA enhancement. (Gov.'s Sentencing Mem. Suppl. 5.) The Government's argument, however, effectively ignores that the McNeill Court expressly held that its opinion "does not concern a situation in which a State subsequently lowers the maximum penalty applicable to an offense and makes that reduction available to defendants previously convicted and sentenced for that offense," McNeill , 563 U.S. at 825 n.1, 131 S.Ct. 2218 ("We do not address whether or under what circumstances a federal court could consider the effect of that state action."). These are the precise circumstances that the Court is presented with here.
This is not to say that the Government fails to acknowledge the limits of McNeill 's holding. In a footnote to its submission, the Government recognizes this express carve-out in McNeill . (Gov.'s Sentencing Mem. Suppl. 5 n.4.) Indeed, the Government does not argue that the holding in McNeill is binding on this case and instead urges the Court to consider McNeill as "guidance." (Id. at 5.) However, the Government's argument fails to adequately address the application of McNeill 's carve-out to the facts of this case.
Moreover, the Government suggests that, under McNeill , the Court is precluded from giving effect to the 2009 DLRA's retroactive resentencing scheme for the purpose of applying an ACCA enhancement, because Cabello, having already completed his term of incarceration, is ineligible for resentencing himself. (See Gov.'s Suppl. Mem. 4–5.) The Court rejects such reasoning. The 2009 DLRA is unavailable to individuals who have completed their sentences because they have no remaining sentences to reduce. The justification for this is tautologically self-evident: The state simply cannot give them back the time they already spent in prison. However, such a practical impossibility does nothing to diminish the importance of the 2009 DLRA's purpose of remediating the excessively punitive consequences of the Rockefeller drug laws. In McNeill , the Supreme Court reasoned that its reading of the ACCA "avoids the absurd results that would follow from consulting current [non-retroactive] state law to define a previous offense," including "mak[ing] the ACCA's applicability depend on the timing of the federal sentencing proceeding." 563 U.S. at 822, 823, 131 S.Ct. 2218. This case presents the flip side of the same coin. In the context of a retroactive state law like the 2009 DLRA, it would be absurd to make the ACCA's applicability depend solely on whether or not a federal sentencing takes place after a defendant's release from state custody. As the Supreme Court explained in United States v. Rodriquez , in enacting the ACCA, "Congress presumably thought—not without reason—that if state lawmakers provide that a crime is punishable by [at least] 10 years' imprisonment, the lawmakers must regard the crime as ‘serious,’ and Congress chose to defer to the state lawmakers' judgment." 553 U.S. 377, 388, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008). Here, New York has unequivocally chosen to punish first-time class-B-felony drug offenses like Cabello's, whether committed today or in the past, with less than 10 years' imprisonment. Such convictions are therefore not serious drug offenses for the purpose of the ACCA enhancement. In the absence of any mandate from the Supreme Court or Second Circuit to apply the ACCA enhancement under the circumstances of this case, the Court refuses to frustrate the purpose of the 2009 DLRA by doing so. It would pervert justice to ignore the state legislature's express renunciation of a draconian sentencing regime by continuing to impose the ACCA enhancement based on the maximum sentences available under that regime. The Court shall not compound one injustice with another.
Cabello was released from custody in 2005, so he could not have applied for resentencing under the 2009 DLRA.
In United States v. Calix and United States v. Jackson , two other district courts held that a class-B-felony offense covered by the 2009 DLRA cannot constitute an ACCA predicate even where a defendant is ineligible for resentencing at the time of the ACCA determination. No. 13-CR-582, 2014 WL 2084098, at *15 (S.D.N.Y. May 13, 2014) ; No. 13-CR-142, 2013 WL 4744828, at *6 (S.D.N.Y. Sept. 4, 2013). The Government does not squarely address this issue in its briefing, except to note that the Second Circuit has not resolved it. (Gov.'s Suppl. Sentencing Mem. 5 n.4 (citing Saxon v. United States , 695 F. App'x 616, 620–21 (2d Cir. 2017) (summary order) (holding that counsel had not been ineffective in failing to raise the ACCA argument at issue here and therefore declining to reach the merits of the argument).) Indeed, even after Cabello underscored the Government's failure to "address these cases, cite contrary cases, or explain why their reasoning is unpersuasive," the Government again avoided them altogether. (Compare Def.'s Suppl. Sentencing Mem. 4 with Gov.'s Sentencing Mem. Suppl. 2–4, ECF No. 20.) At the September 21, 2018 hearing, the Government did bring the Court's attention to the Eleventh Circuit's opinion in Cortes-Morales v. Hastings , 827 F.3d 1009 (11th Cir. 2016). In that case, the court determined that the 2009 DLRA did not apply retroactively to preclude prior convictions from constituting serious drug offenses for the purpose of the ACCA enhancement. Id. at 1015–16. However, Cortes-Morales is inapposite, as the question before the Eleventh Circuit was whether a habeas corpus petitioner had satisfied the specific jurisdictional requirements to file a second or successive petition, pursuant to 28 U.S.C. § 2241, collaterally challenging a prior federal conviction on the grounds that the district court had improperly applied the ACCA enhancement. Id. at 1013–14. By contrast, the issue before this Court is whether to apply the ACCA enhancement in the first instance. The district courts in Calix and Jackson also considered the retroactive effect of the 2009 DLRA on the applicability of the ACCA enhancement in the first instance. The Court finds those opinions more analogous to the procedural posture of this case and therefore more persuasive than Cortes-Morales .
In Rivera v. United States , the Second Circuit held that the 2009 DLRA did not apply retroactively to a prior drug conviction for the purpose of the ACCA enhancement. 716 F.3d 685, 690 (2d Cir. 2013). Although the Government does not cite Rivera in support of its position in this case, it is important to distinguish the case, which is inapposite for at least two reasons. First , the prior drug offense in Rivera was a class-C felony ineligible for resentencing under the 2009 DLRA. Id . The Second Circuit reasoned, in part, that, because the "retroactive aspects" of the 2009 DLRA were inapplicable to the prior offense at issue, the case fell "squarely" within the holding of McNeill . Id. Here, by contrast, Cabello's 1994 drug conviction was a class-B felony, for which the 2009 DLRA does provide retroactive resentencing opportunities, moving this case beyond the scope of McNeill 's holding and squarely within its exception. Second , like Cortes-Morales, supra note 4, Rivera concerned a collateral attack on a federal sentence and not, as here, the application of the ACCA enhancement in the first instance. Thus, Rivera is not binding on this case. See also Calix , 2014 WL 2084098, at *13 ("The Rivera Court did not address Class B felony drug offenses governed by the 2009 DLRA's retroactive resentencing provisions, and did not answer the question of whether such offenses constitute ‘serious drug offenses’ under the ACCA. Therefore, Rivera , like McNeill , is not binding on this Court in answering this question.").
For the reasons set forth above, Defendant Cabello does not qualify for a sentencing enhancement under the ACCA.