The opinion of the court was delivered by: Trager, J
Defendant Ricky Hammons has been charged with being a felon-in-possession of a firearm. The government has notified him of its intention to seek a sentencing enhancement under the Armed Career Criminal Act ("ACCA"). 18 U.S.C. §§ 922(g)(1), 924(e). Hammons challenges whether his previous state felony convictions qualify as predicate convictions under ACCA, because under state law, these felonies no longer have the mandatory maximum sentence of ten or more years. Hammons and the government have consented to have this issue decided prior to trial.
Hammons was arrested on March 5, 2005 by his parol officers for the charge of being a felon-in-possession of a firearm. At the time of his arrest, Hammons had four previous convictions, one federal conviction*fn1 and three state convictions. The government has identified the three state convictions as predicate convictions for an increased sentence under ACCA. 18 U.S.C. § 924(e).
In order to be sentenced under ACCA, a defendant must have been previously convicted of three "serious drug offenses." Id. The statute defines a state "serious drug offense" as: 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) (emphasis added).
Hammons pled guilty to three separate state court crimes on April 5, 1994, for which he was arrested in 1993.*fn2 The convictions were for the Class C New York felony of attempted criminal possession of a controlled substance with intent to sell in the third degree. N.Y. Penal Law § 220.16(1). At the time of his conviction, the maximum sentence for these crimes was 15 years (N.Y. Penal Law § 70.00(2)), a sentence sufficient to qualify under ACCA, which requires at least a 10-year maximum sentence. 18 U.S.C. § 924(e)(2)(A)(ii).
The current maximum sentence for the same Class C New York felony no longer has the requisite maximum sentence under ACCA. In 2004, after a great deal of public debate, New York amended the so-called "Rockefeller drug laws," lowering the sentence for these crimes to a maximum of five and one-half years. N.Y. Penal Law § 70.70; 2004 N.Y. Laws Ch. 738 (effective January 13, 2005) (hereinafter "Rockefeller Reform Act"). Therefore, as of March 5, 2005, the time of Hammons' arrest for the instant crime, the maximum term for his previous convictions was five and one-half years.
The parties dispute what date should be used to calculate the maximum sentence for the state law felonies. Three options are possible: (1) the law applicable at the time of the actual state law conviction; (2) the law applicable at the time of the new alleged federal crime; or (3) the law applicable at the time of the sentencing for the federal offense.*fn3 Hammons urges that the statute applicable on the date of the new alleged federal crime should be used to determine the maximum sentence for the predicate state conviction. The government argues that the Rockefeller Reform Act is not retroactive and, therefore, if he were sentenced today for the 1994 convictions he would still be eligible for a qualifying maximum sentence.
Hammons is not subject to a sentencing enhancement under ACCA because the state reform law sets the sentence for Hammons' past felonies below the ten-year requirement of the statute. ACCA "leaves the standard by which to judge the seriousness of a state drug conviction to the policy of the state." United States v. Morton, 17 F.3d 911, 915 (6th Cir. 1994) (holding that ACCA did not apply where the state had lowered the maximum sentence below ten years since the defendant's conviction). Rather than determining the seriousness of state felonies based on the length of the actual sentence, amount of drugs or any other measure, ACCA instead relies on the state's indication of the seriousness of the crimes through its sentencing policies. See 18 U.S.C. § 924(e)(2)(A)(ii).
In New York, these sentencing policies have been the subject of a protracted and very public debate. See New York v. Denton, 7 Misc. 3d 373, 2005 N.Y. Slip Op. 25029 (Sup. Ct. Kings County 2005) (collecting articles and public statements on New York's sentencing policies for drug crimes). This debate centered on the Rockefeller drug laws, known by the gubernatorial administration that passed them, which were applicable to Hammons's 1994 state convictions. As early as 2001, the present governor called for their reform. N.Y. Gov. Ann. Mess. (2001). The sponsors of the bill described the Rockefeller drug laws as providing "inordinately harsh punishment for low level non-violent drug offenders" as well as misdirecting public funds for the incarceration of these offenders. New York Sponsors Memorandum, Ch. 738 (2004). Ultimately, in 2004, these laws were amended, lowering the maximum sentence to five and one-half years for Class C felonies, the same class of felony for which Hammons was convicted in 1994. 2004 N.Y. Laws Ch. 738.
In the instant matter, the government has argued that United States v. Morton should not apply in this case because, unlike the Tennessee statute analyzed in Morton, the Rockefeller Reform Act is not retroactive and if Hammons were sentenced today for his state crimes, the maximum sentence would still be over ten years. Morton did not discuss the retroactivity of the statute, instead relying on the shift in state policy rather than the actual sentence applicable to the defendant. Morton, 17 F.3d at 915. However, other circuits have distinguished Morton on the basis of Tennessee's retroactivity provisions and applied ACCA despite their states' new ameliorative provisions because those provisions were not retroactive. See United States v. Davis, 108 Fed. Appx. 131 (5th Cir. 2004) (applying ACCA where the state supreme court determined that the state law should not be applied retroactively); United States v. Williams, 57 Fed. Appx. 553 (4th Cir. 2003) (applying ACCA despite amendments to the state sentencing structure because of the state law was not retroactive); United States v. Hinojosa, 349 F.3d 200 (5th Cir. 2003) (applying ...