United States District Court, S.D. New York
OPINION & ORDER
J. NATHAN, DISTRICT JUDGE:
before the Court comes Defendant's objections to the
Probation Department's calculations of the applicable
United States Sentencing Guidelines (the
"Guidelines") imprisonment range as stated in the
Presentence Investigation Report ("PSR"). For the
following reasons, the Court adopts the calculations as
stated in the PSR and finds that the applicable Guidelines
range is 84 to 105 months.
December 27, 2016, Defendant Michael Laboy entered a plea of
guilty before Magistrate Judge Barbara Moses to one count of
possessing a firearm after having been convicted of a felony
in violation of 18 U.S.C. § 922(g)(1). See
generally December 27, 2016 Plea Transcript, Dkt. No.
29. On January 12, 2017, the Court accepted the
Defendant's guilty plea, having determined that it was
entered knowingly and voluntarily, and that there was a
factual basis for the plea. See Dkt. No. 28.
sentencing, having been adjourned three times, see
Dkt. Nos. 35, 41, and 44, was due to take place on September
21, 2017. In his pre-sentence submissions, Defendant argued
that Probation's Guidelines calculation in the PSR was
incorrect for two reasons. See Dkt. No. 37. The
calculation in the PSR applied the base offense level in
U.S.S.G. § 2K2.1(a)(2), which applies "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." First, Defendant argued that his 2011
conviction for criminal sale of a controlled substance in the
fifth degree, in violation of New York Penal Law §
220.31, did not qualify as a "controlled substance
offense" for the purposes of the Guidelines calculation.
Dkt. No. 37 at 1-3. Second, Defendant argued that his 2012
conviction for robbery in the third degree, in violation of
New York Penal Law § 160.05, did not qualify as a
"crime of violence" for purposes of the Guidelines
calculation. Id. at 3-8.
hearing on September 21, the Court heard oral arguments on
Defendant's objections to the Guidelines calculation in
the PSR. See generally September 21, 2017 Sentencing
Transcript, Dkt. No. 46. In some material respects, the oral
arguments differed from the arguments made in the
parties' written submissions. As a result, the Court
decided to reserve judgment on Defendant's objections,
and requested that the parties submit supplemental briefing
of the issues. See Id. at 37:15-42:4. The Court
indicated that it would resolve the outstanding issues by
written order clarifying the applicable Guidelines range, and
then schedule arguments on the sentencing factors laid out in
18 U.S.C. § 3553(a). Id.
October, the parties filed their supplemental briefs.
See Dkt Nos. 48 & 49. In his new submission,
Defendant withdrew his argument that his robbery conviction
did not constitute a "crime of violence" in light
of a recent Second Circuit decision in United States v.
Corey Jones, --F.3d-, 2017 WL 4456719 (Oct. 5, 2017).
See Dkt. No. 49 at 6. The parties maintain their
disagreements about the proper effect of Mr. Laboy's
conviction for criminal sale of a controlled substance in the
fifth degree on the applicable Guidelines calculation, and
these arguments are now before the Court for resolution.
only one prior felony conviction for a "crime of
violence, " Defendant's base offense level in the
Guidelines for the instant offense would be 20. See
§ 2K2.1(a)(4)(A). However, as stated above, the
applicable Guidelines provision sets 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." See § 2K2.1(a)(2)
Note 1 for the provision specifies that "controlled
substance offense" is given the "meaning given that
term in § 4B1.2(b)...." In turn, Section 4B1.2(b)
defines "controlled substance offense" as:
an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.
if the Defendant's prior conviction is for a
"controlled substance offense" as defined by §
4B1.2(b), then the applicable base offense level would be 24,
not 20. The Defendant was convicted in 2011 for criminal sale
of a controlled substance in the fifth degree in violation of
New York Penal Law § 220.31.
gravamen of Defendant's argument is that the categorical
approach developed by the Supreme Court in Taylor v.
United States, 495 U.S. 575 (1990), mandates that if Mr.
Laboy theoretically could have been convicted under the state
statute for conduct not criminalized under federal law, then
his 2011 conviction does not qualify as a "controlled
substance offense" for purposes of the Guidelines
calculation as set forth above. See Dkt. No. 37 at
1. It is not disputed that Defendant's at-issue prior
conviction was for a violation of a statute the Second
Circuit recently held is "indivisible." See
Harbin v. Sessions, 860 F.3d 58, 63 (2017). Defendant
argues that as an indivisible statute, courts apply the
categorical approach, which only "looks to the statutory
definition of the offense of conviction, and not to the
particulars of an [individual's] behavior" in
determining whether the conviction forms a valid predicate
for a sentence enhancement. Id. at 68 (quoting
Mellouli v. Lynch, 135 S.Ct. 1980, 1986 (2015)). At
the time of Defendant's conviction, there was one drug on
New York's schedule of controlled substances that was not
listed on the federal Controlled Substances Act (CS A) -
namely, human chorionic gonadotropin (HCG). Dkt. No. 37 at 3.
Given this, Defendant argues that his 2011 conviction for
criminal sale of a controlled substance in the fifth degree
cannot be used to enhance his sentence under the categorical
approach. Id. Theoretically, Mr. Laboy could have
been convicted in New York under § 220.31 for
distribution of HCG, which would not have been criminalized
under federal law.
Government counters that Defendant is asking the Court to
inappropriately import the federal schedule into the
definition of "controlled substance offense, " and
that Mr. Laboy's 2011 conviction qualifies as "an
offense under.. .state law" under § 4B1.2(b)'s
definition of "controlled substance offense."
See Dkt. No. 39 at 2-3.
Traditional Methods of Statutory Interpretation Are
Sufficient Here To Determine ...