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United States v. Laboy

United States District Court, S.D. New York

December 21, 2017

United States of America,
v.
Michael Laboy, Defendant.

          OPINION & ORDER

          ALISON J. NATHAN, DISTRICT JUDGE:

         Now 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.

         I. Background

         On 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.

         Defendant's 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.

         At the 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.

         In 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.

         II. Discussion

         With 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) (emphasis added).

         Application 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.

         Thus, 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.

         The 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.

         The 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.

         A. Traditional Methods of Statutory Interpretation Are Sufficient Here To Determine ...


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