U.S. v. King

• Decision Date: 02 April 2003
• Docket Number: Docket No. 02-1021.
• Citation: 325 F.3d 110
• Parties: UNITED STATES of America, Appellee, v. Anthony KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

325 F.3d 110

UNITED STATES of America, Appellee, v. Anthony KING, Defendant-Appellant.

Docket No. 02-1021.

United States Court of Appeals, Second Circuit.

Argued: January 13, 2003.

Decided: April 2, 2003.

Elizabeth S. Riker, Assistant United States Attorney, Syracuse, New York (Joseph A. Pavone, United States Attorney for the Northern District of New York, Richard R. Southwick, Assistant United States Attorney, Syracuse, New York, on the brief), for Appellee.

Lisa A. Peebles, Assistant Federal Public Defender, Syracuse, New York (Alexander Bunin, Federal Public Defender, Melissa A. Tuohey, Syracuse, New York, on the brief) for Defendant-Appellant.

Before: KEARSE and B.D. PARKER, JR., Circuit Judges, and RAKOFF, District Judge^*.

KEARSE, Circuit Judge.

Defendant Anthony King appeals from a judgment entered in the United States District Court for the Northern District of New York following a jury trial before Norman A. Mordue, Judge, convicting him of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (2000), and sentencing him principally to 235 months' imprisonment, to be followed by a three-year term of supervised release. The prison term was imposed pursuant to the enhanced penalty provisions of 18 U.S.C. § 924(e) (2000), applicable to defendants convicted of violating § 922(g) after prior convictions for three violent felonies and/or serious drug offenses. On appeal, King argues, inter alia, that the enhancement provision was inapplicable because one of his prior convictions, i.e., that for attempted criminal possession of a controlled substance in violation of N.Y. Penal Law § 220.16(1) (McKinney 1992) was not for "a serious drug offense" within the meaning of § 924(e). Finding no merit in this or any of King's other contentions, we affirm the judgment of conviction. We write principally to address the sentencing challenge.

I. BACKGROUND

The facts relevant to King's sentencing challenge are as follows. The present prosecution was commenced after King was arrested in February 2000 following an argument during which he and another man threatened each other with guns. King was indicted by a federal grand jury on three counts: (1) being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2) being a convicted felon in possession of ammunition, in violation of the same section; and (3) knowingly possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k), a count that was eventually dismissed. A superceding indictment added that King was subject to an enhanced sentence under 18 U.S.C. § 924(e).

The first two counts of the indictment were consolidated and tried to a jury, which found King guilty of violating § 922(g)(1). Section 924(e) requires that a person who violates § 922(g) and has three prior convictions for "a violent felony or a serious drug offense, or both," be sentenced to, inter alia, at least 15 years' imprisonment. 18 U.S.C. § 924(e)(1). In sentencing King, the district court determined that he had three pertinent prior New York State convictions: (1) attempted robbery in the third degree, (2) assault in the second degree, and (3) attempted possession of a controlled substance in the third degree. Finding, over King's objections, that attempted robbery and assault were violent felonies and that attempted possession of a controlled substance, to wit, cocaine, in violation of N.Y. Penal Law § 220.16(1) was a serious drug offense, all within the meaning of 18 U.S.C. § 924(e)(1), the court sentenced King under § 924(e)(1), and within the range prescribed by the Sentencing Guidelines ("Guidelines") in light of King's present offense and his criminal record, to a prison term of 235 months.

This appeal followed.

II. DISCUSSION

On appeal, King contends that imposition of the enhanced sentence under § 924(e) was improper because his state-court drug conviction did not fall within that section. He also argues that the court erred in ruling on the admissibility of photographic evidence at trial and that it abused its discretion in failing to grant him a downward departure from the Guidelines range. We find no basis for reversal in any of King's contentions; only the sentencing challenge warrants extended discussion.

A. Serious Drug Offenses Under § 924(e)

Section 924(e) of Title 18 provides, in pertinent part, that

[i]n the case of a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be ... imprisoned not less than fifteen years ....

18 U.S.C. § 924(e)(1). As used in subsection (e) of § 924, the term "serious drug offense" is defined to mean

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.), for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) 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) (emphases added).

King's contention is that because the definition in subsection (A)(ii) does not mention attempts, an attempt to commit a serious drug offense should not be considered a serious drug offense for purposes of the § 924(e) penalty enhancement. In support of this contention, King points to the fact that subsection (B) of § 924(e)(2), in defining "violent felony" as that term is used in § 924(e)(1), contains an express reference to attempts:

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, ... that —

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....

18 U.S.C. § 924(e)(2)(B) (emphasis added). King argues that the express reference to attempts in § 924(e)(2)(B)(i) and the absence of any reference to attempts in subsection (A)(ii)'s definition of serious drug offense mean that an attempted drug possession was not intended by Congress to be considered a serious drug offense. Relying on Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), he contends that we must "adopt a `categorical approach'" and "`look only to the fact of conviction and the statutory definition of the prior offense,'" looking beyond that definition only if the statute extends to conduct that would not "satisf[y] the [§ 924(e)] definitions." (King brief on appeal at 41 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143).) Reviewing the applicability of § 924(e) to King's offense de novo, we reject his contention that attempts to commit a serious drug offense were not themselves meant to be considered serious drug offenses.

Subsection (A)(ii) of § 924(e)(2) does not define a serious drug offense simply as a state-law offense of drug distribution, manufacture, or possession with intent to distribute. Rather, it defines a serious drug offense as a state-law offense "involving" drug distribution, manufacture, or possession with intent to distribute. The word "involving" has expansive connotations, and we think it must be construed as extending the focus of § 924(e) beyond the precise offenses of distributing, manufacturing, or possessing, and as encompassing as well offenses that are related to or connected with such conduct. Accord United States v. Brandon, 247 F.3d 186, 190 (4th Cir.2001) ("the word `involving' itself suggests that the subsection should be read expansively"); cf. United States v. James, 834 F.2d 92, 93 (4th Cir.1987) ("[V]iolations `involving' the distribution, manufacture, or importation of controlled substances must be read as including more than merely the crimes of distribution, manufacturing, and importation themselves.") (discussing 18 U.S.C. § 924(c) (Supp. IV 1986) (referring to "violations ... involving the distribution, manufacture, or importation of any controlled substance"), amended by 18 U.S.C. § 924(c) (1988)).

Our interpretation of "involving" as a word of expansion finds support in part of the Supreme Court's analysis in Taylor, which contrasted definitions using the word "involv[ing]" with definitions that did not include that word. The question before the Taylor Court was the meaning of "burglary" in § 924(e)(2)(B)(ii)'s definition of "violent felony." In the course of concluding that a narrow focus was required by the fact that Congress used the simple word "burglary," the Court discussed another part of the "violent felony" definition, pointing out that

[s]ection 924(e)(2)(B)(i) defines "violent felony" as any crime punishable by imprisonment for more than a year that "has as an element" — not any crime that, in a particular case, involves — the use or threat of force.

495 U.S. at 600, 110 S.Ct. 2143 (emphases added). We think the implication of this statement is that where Congress frames a factor in terms of an "involve[ment]" with a certain crime, the proper focus of the inquiry is broader than the mere elements of the crime.

In light of § 924(e)(2)(A)(ii)'s definition of "a serious drug offense" to include a state offense "involving" possession with intent to distribute, the district court correctly determined that King's New York State conviction for attempted possession of cocaine in the third degree was a conviction for a serious drug offense. Under New York law, "[a] person is guilty of criminal possession of a...