The opinion of the court was delivered by: Michael A. Telesca, United States District Judge
The question presented in this sentencing proceeding is whether a youthful offender adjudication may be considered in determining defendant's offense level. The Probation Department determined that defendant's November 24, 1997 conviction in New York State Court for Attempted Criminal Sale of a Controlled Substance 3rd, (after which defendant was adjudicated to be a youthful offender), should be considered as a prior conviction under Sentencing Guideline § 2K2.1(a)(2), resulting in defendant's base offense level being increased from 20 to 24. The Plea Agreement initially contemplated defendant's base offense level to be 20 because the conviction in which defendant was later adjudicated as a youthful offender was not included in the calculus.
Based on the language of the Sentencing Guidelines (including the application notes) New York Criminal Procedure Law, New York case law, and the Second Circuit case United States v. Driskell, 277 F.3d 150 (2nd Cir. 2002), I find that defendant's State conviction, in which he was later adjudicated as youthful offender, may not be considered as a previous felony for purposes of § 2K2.1 in determining his offense level.
Section 2K2.1(a)(2) provides that for sentencing purposes, a person convicted of illegal gun possession will have a base offense level of 24 if "the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." Application Note 5 of § 2K2.1 provides in relevant part that a "`Felony Conviction' means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year. . . . A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted. . . ." U.S. Sentencing Guidelines Manual § 2K2.1 cmt. n. 5(2002) (emphasis added) Thus, in this case, if New York State treats defendant's previous Attempted Criminal Sale of a Controlled Substance conviction as an "adult conviction," then this court may properly consider the conviction as an underlying conviction for purposes of § 2K2.1(a)(2) in determining the defendant's criminal history component.
New York State, however, does not classify defendant's conviction as an adult conviction. Rather, New York law provides that a youthful offender adjudication is "not a judgment of conviction for a crime or any other offense. . . ." N.Y. C.P.L. § 720.35 (McKinney 1995). Moreover, under New York law, "a felony conviction of a person given youthful offender status may not be used as a predicate for enhanced sentencing." People v. Kuey, 83 N.Y.2d 278, 283 (1994). Because a youthful offender adjudication is not classified as an adult conviction under New York law, and cannot under New York law be used as a predicate conviction for enhanced sentencing, I find that the youthful offender adjudication may not be considered under § 2K2.1 in determining the defendant's offense level.
However, the Probation Department contends that the law has changed, and now allows youthful offender adjudications to be considered in determining a defendant's offense level. In support of that view, the Probation Department cites United States v. Driskell, 277 F.3d 150 (2nd Cir. 2002), in which the Second Circuit Court of Appeals held that a previous felony conviction, in which the defendant was later adjudicated as a youthful offender, could be counted as a "prior sentence" under Sentencing Guideline § 4A1.2(d) for purposes of determining defendant's criminal history. Section 4A1.2(d) provides in relevant part that "[i]f the defendant was initially convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add 3 points [to defendant's criminal history category] under § 4A1.1(a) for each such sentence." The Driskell court held that since the defendant in that case was convicted as an adult, but later adjudicated as a youthful offender, the prior conviction satisfied the § 4A1.2(d) requirement that defendant be considered "convicted as an adult." Driskell, 277 F.3d at 154-55.
Driskell, however, can be distinguished from the instant case on grounds that under § 4A1.2, the guideline requires only that the defendant be "convicted as an adult," whereas under Guideline § 2K2.1, the section relevant in this case, the guideline is applicable only if the prior conviction is treated as an adult conviction by the jurisdiction imposing the sentence. In Driskell, the defendant satisfied the § 4A1.2 requirement because he was convicted as an adult. In this case the test is not whether he was convicted as an adult, but whether New York considers the conviction an adult conviction. The Driskell court does counsel courts to "look to the substance of the past conviction rather than the statutory term affixed to it," when determining whether a prior conviction should be considered for purposes of increasing a defendant's criminal history category. However, there is no indication that the Driskell court's admonition should apply to § 2K2.1, where the application notes, (unlike the application notes to § 4A1.2), explicitly provide that a prior conviction may only be considered as a predicate if it is classified as an adult conviction. Driskell did not address the language of guideline § 2K2.1, and thus never considered the fact that New York does not classify youthful offender adjudications as adult convictions. Accordingly, while a youthful offender conviction may be used to determine a defendant's criminal history category, as the Court did in Driskell, the plain language of application note 5 of § 2K2.1 provides that a youthful offender conviction may not be considered in determining the defendant's offense level.
For the reasons set forth above, I find that defendant's youthful offender adjudication may not be considered as a predicate felony under § 2K2.1 of the Sentencing Guidelines in determining his offense level.
ALL OF THE ABOVE IS SO ORDERED.
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