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United States v. Sellers

United States Court of Appeals, Second Circuit

April 27, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JAMELL SELLERS, Defendant-Appellant

Argued: December 9, 2014.

Page 877

[Copyrighted Material Omitted]

Page 878

Appeal from the United States District Court for the Eastern District of New York. No. 12-cr-643 -- Sterling Johnson, Jr., Judge.

Appeal from the judgment of the United States District Court for the Eastern District of New York (Johnson, J.), sentencing Jamell Sellers principally to fifteen years' imprisonment for violating 18 U.S.C. § 922(g)(1). The district court imposed a statutory mandatory minimum of fifteen years after concluding that Sellers was an armed career criminal under 18 U.S.C. § 924(e), part of the Armed Career Criminal Act (" ACCA" ). We hold that Sellers's drug conviction under New York law that resulted in a youthful offender adjudication does not qualify as a predicate conviction under the ACCA. Therefore, the ACCA mandatory minimum does not apply. Accordingly, we REMAND to the district court for resentencing.

BARRY D. LEIWANT, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.

ALIXANDRA E. SMITH (Jo Ann M. Navickas, on the brief) Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: CABRANES, LOHIER, and DRONEY, Circuit Judges.

OPINION

Page 879

Droney, Circuit Judge :

Jamell Sellers was sentenced to fifteen years' imprisonment for being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1) and under 18 U.S.C. § 924(e)(1) of the Armed Career Criminal Act (" ACCA" ).[1] Judgment was entered on November 20, 2013, in the United States District Court for the Eastern District of New York (Johnson, J. ).

Sellers contends that the application of the ACCA was error, arguing that his 2001 state conviction for criminal sale of a controlled substance does not qualify as one of the " three previous convictions" necessary to apply the ACCA because he was adjudicated as a youthful offender (" YO" ) for that offense under New York law. See 18 U.S.C. § 924(e)(1). Therefore, he appeals his sentence of the ACCA's statutory mandatory minimum of fifteen years' imprisonment.

We hold that a drug conviction under New York law that was replaced by a YO adjudication is not a qualifying predicate conviction under the ACCA because it has been " set aside" within the meaning of 18 U.S.C. § 921(a)(20) and New York law. Accordingly, we REMAND to the district court for resentencing.

BACKGROUND

An indictment was returned on October 9, 2012, in the U.S. District Court for the Eastern District of New York, alleging that on September 11, 2012, Sellers possessed a firearm and ammunition and had previously been convicted of a crime punishable by a term of imprisonment exceeding one year, in violation of 18 U.S.C. § 922(g)(1). Sellers had been arrested by two New York City police officers responding to a 911 call that a man with a handgun was standing in front of a building in Brooklyn. The officers saw a man who fit the description in the 911 call and, as he began walking away from them, saw the handgun in his pants. Sellers was arrested, and a loaded Taurus 9 mm semiautomatic pistol was seized.

On May 16, 2013, Sellers moved for a ruling by the district court that he would not be sentenced under the ACCA if he were to plead guilty. Violations of § 922(g)(1) are punishable by a maximum sentence of ten years, and there is no mandatory minimum. 18 U.S.C. § 924(a)(2). However, the ACCA imposes a fifteen-year mandatory minimum sentence if a person violates § 922(g)(1) and has " three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. § 924(e)(1). Sellers argued that he did not qualify as an armed career criminal because one of his three prior criminal convictions -- from when he was 17 years old -- had been replaced by a YO adjudication under New York law.[2]

Page 880

The Government opposed Sellers's motion, contending that resolution of the ACCA issue was premature. The Government also argued that Sellers was an armed career criminal because Sellers's YO adjudication for the drug offense was not excluded from consideration as a " previous conviction" under the ACCA.

On June 7, 2013, at a status conference three days before trial was to begin, the district court declined to rule on the ACCA issue, reasoning that doing so would " place the court in a position of negotiat[ing]" with the parties. Appellant App. 47. Sellers then pled guilty that day to the one-count indictment without a plea agreement. During the plea colloquy, Sellers acknowledged that (1) he had two prior felony convictions and (2) he had a third conviction that resulted in a New York YO adjudication and did not qualify as a conviction under the ACCA. Sellers was informed by the district court that if he was found to have three qualifying convictions, the ACCA would trigger the statutory mandatory minimum of fifteen years and a maximum of life in prison. After Sellers stated that he understood, the district court accepted Sellers's plea.

The Pre-Sentence Report (" PSR" ) calculated Sellers's Sentencing Guidelines (" Guidelines" or " U.S.S.G." ) range to be 168 to 210 months based on a Criminal History Category V and a total offense level of 31, which included upward adjustments due to his ACCA status. Because of the ACCA's statutory mandatory minimum, the PSR concluded that the Guidelines range increased to 180 to 210 months. See 18 U.S.C. § 924(e)(1).

Sellers filed objections to the PSR, including the portions of the PSR which adopted the Government's position that the statutory mandatory minimum of fifteen years under the ACCA applied. Sellers also disputed his points calculation for Criminal History V, arguing that no points should be assigned for the YO adjudication, and thus his Criminal History Category should be IV instead of V. He also disputed the application of a Sentencing Guidelines offense level enhancement for ACCA-sentencing under U.S.S.G. § 4B1.4.[3] Sellers advocated for a Guidelines range of 57 to 71 months' imprisonment. In response, the Government argued that his 2001 ...


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