United States District Court, S.D. New York
August 11, 2005.
UNITED STATES OF AMERICA, Government,
LATIE WHITLEY, Defendant.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
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. §
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.*fn1 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).
For the foregoing reasons, Defendant's motion to dismiss Count
Two of the indictment is DENIED.