397 F.3d 103 (2nd Cir. 2005), 03-1675, United States v. Crosby

Docket Nº:03-1675.
Citation:397 F.3d 103
Party Name:UNITED STATES of America, Appellee, v. Jerome CROSBY, Defendant-Appellant.
Case Date:February 02, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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397 F.3d 103 (2nd Cir. 2005)

UNITED STATES of America, Appellee,


Jerome CROSBY, Defendant-Appellant.

No. 03-1675.

United States Court of Appeals, Second Circuit

February 2, 2005

Argued: Jan. 14, 2005

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John A. Cirando, Syracuse, N.Y. (Lisa M. Cirando, Susan R. Rider, Mickelle A. Olawoye, D.J. & J.A. Cirando, Esqs., Syracuse, N.Y., on the brief), for Defendant-Appellant.

Jerome Crosby, pro se, Ray Brook Federal Correctional Institution, Ray Brook, N.Y., submitted a brief for Defendant-Appellant.

Elizabeth S. Riker, Dep. Appellate Chief, Office of the U.S. Atty., Syracuse, N.Y. (Glenn T. Suddaby, U.S. Atty., Richard R. Southwick, Asst. U.S. Atty., Syracuse, N.Y., on the brief), for Appellee.

Before: NEWMAN, Senior Circuit Judge, KEARSE and CABRANES, Circuit Judges.

JON O. NEWMAN, Senior Circuit Judge.

This appeal of a sentence imposed in a federal criminal case requires us to begin the process of implementing the decision of the Supreme Court in United States v. Booker, --- U.S. ----, 125 S.Ct. 738, --- L.Ed.2d ---- (2005) (" Booker/Fanfan "). 1 Defendant-Appellant Jerome Crosby appeals from the October 23, 2003, judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief Judge), sentencing him to imprisonment for ten years after he pled guilty to a firearms violation. We conclude that the District Court should have the opportunity to consider whether to resentence, and we therefore remand for that purpose.


Crosby was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). He entered a plea of guilty to the single count of the indictment. There was no plea agreement.

Utica police officers had arrested Crosby after responding to a "shots fired" complaint. Witnesses at the scene told them that Crosby had fired a shotgun in their direction from the window of his car. When Crosby saw the officers, he ran from the car, and, as one of the officers pursued him, turned and pointed a loaded shotgun at the officer. After a brief struggle, Crosby was subdued and arrested.

The Government based its contention that Crosby was a felon on his two Florida state court convictions, one for attempted murder in the second degree and one for battery on a law enforcement officer. The Defendant disputed that either of the Florida convictions was a felony, pointing out that his sentences had been withheld and that, in view of his age at the time of the offenses, he had been placed in Community Control for the attempted murder and placed on probation for the battery. He did not dispute that he was subsequently sentenced to twelve years' imprisonment after the revocation of his Community Control and probation. The District Court credited the Government's evidence, obtained from Florida officials, that Crosby's offenses were felonies under Florida law.

The District Court accepted the Defendant's guilty plea. During the plea colloquy, the Defendant did not dispute that on March 9, 2002, he possessed a firearm. In entering his guilty plea, the Defendant purported to reserve the right to appeal "the determination concerning his Florida convictions." 2

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The District Court then conducted an evidentiary hearing to resolve factual disputes concerning enhancements required by the federal Sentencing Guidelines ("Guidelines"). At sentencing, Chief Judge Scullin applied the 2002 Sentencing Guidelines Manual. The Judge started with a base offense level of 24, applicable to a defendant who has violated 18 U.S.C. § 922(g) after conviction of at least two felonies involving a crime of violence. See U.S.S.G. § 2K2.1(a) (2). The Judge then made three enhancements based on judicial fact-finding. First, the Judge added four levels for using the possessed firearm in connection with another felony. See id. § 2K2.1(b) (5). The Judge deemed pointing the loaded shotgun at the pursuing police officer to be the New York felony of first degree reckless endangerment. See N.Y. Penal L. § 120.25 (McKinney 2004). Next, the Judge added three levels for creating a substantial risk of injury to a law enforcement officer. See U.S.S.G. § 3A1.2(b) (1). Finally, the Judge added two levels for obstruction of justice, finding the Defendant's testimony at the pretrial hearing to have been materially false. See id. § 3C1.1. The resulting adjusted offense level of 33, in Criminal History Category IV, yielded a sentencing range of 188 to 235 months. See id. Ch. 5, pt. A (Sentencing Table).

Recognizing that the Guidelines required imposition of as much of the Guidelines sentence as the statutory maximum permitted, see id. § 5G1.1(a); 18 U.S.C. § 924(a) (2), the District Judge sentenced Crosby to imprisonment for ten years, followed by a three-year term of supervised release, and a special assessment of $100.

Crosby appealed his sentence, and we requested and have received supplemental papers after the oral argument.


The principal issue on appeal concerns the lawfulness of the sentence. 3 At oral argument just two days after the Supreme Court's decision in Booker/Fanfan, Crosby contended that the enhancements, which were based on the District Judge's fact-finding and which the District Judge felt compelled to add under the Guidelines, violated his Sixth Amendment right to trial by jury.

In considering this issue, we are mindful that this will be the first sentencing appeal decided by our Court since the decision in Booker/Fanfan. As such, it will likely be of special interest to the district judges of this Circuit as they confront a host of new issues. It would be entirely inappropriate for us even to try to anticipate all of those issues, much less resolve them. Nevertheless, we believe that in the aftermath of a momentous decision like Booker/Fanfan, which will affect a large number of cases confronting the district judges of this Circuit

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almost daily, it is appropriate for us to explain the larger framework within which we decide this appeal. We do so in the hope that our explanation will be helpful to bench and bar alike. In formulating our thoughts on these matters, the members of this panel have greatly benefitted from numerous suggestions and comments by other judges of this Court.

I. Federal Sentencing Law Before Booker/Fanfan

Since November 1, 1987, sentences in federal criminal cases have been determined pursuant to the Sentencing Reform Act of 1984 ("SRA"), Pub.L. 98-473, Title II, §§ 211-238, 98 Stat.1987 (1984), and the Guidelines issued by the United States Sentencing Commission, see U.S.S.G. §§ 1A1.1-8F1.1. As it stood prior to the decision in Booker/Fanfan, the SRA specified several requirements for selecting an appropriate sentence. Especially pertinent to the pending appeal are sections 3553(a) and 3553(b), 4 set out in the margin. 5 Section 3553(a) specifies several factors that sentencing judges are required to consider in determining a sentence.

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Among these factors are the applicable provisions of the Guidelines. See Subsection 3553(a) (4). Subsection 3553(b) (1), with an exception not pertinent to this appeal, generally requires the sentencing judge to impose a sentence within the range resulting from application of the Guidelines to the specific facts of the defendant's offense conduct (not limited to the precise offense of conviction) and the defendant's criminal record. This subsection also permits the sentencing judge to select a sentence above or below the applicable Guidelines range, but only on the basis of circumstances "not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b) (1); U.S.S.G. § 5K2.0, cmt. background. A sentence outside the applicable Guidelines range, selected in conformity with the statutory and Guidelines standards for varying from the applicable range, is known as a "departure."

The SRA also provides for appeal of a sentence by the defendant or the Government under limited circumstances, see sections 3742(a), (b), and, pertinent to this appeal, specifies the grounds upon which an appellate court is permitted to review a sentence, see section 3742(e). These grounds include an incorrect application of the Guidelines and a departure from the applicable Guidelines range made without complying with the relevant statutory requirements.

II. The Booker/Fanfan Opinions

The Supreme Court's decision in Booker/Fanfan significantly altered the sentencing regime that has existed since the Guidelines became effective on November 1, 1987. The Court's two-part decision consists of an opinion by Justice Stevens adjudicating the merits of the Sixth Amendment issue ("Substantive Opinion"), and an opinion by Justice Breyer setting forth the remedy ("Remedy Opinion").

A. Substantive Opinion

Booker/Fanfan was the culmination of a series of decisions explicating the requirements of the Sixth Amendment in the context of sentencing. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v. Washington, --- U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In the Substantive Opinion, the Court ruled that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Substantive

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Opinion at 20. 6 This ruling, the Court explained, was required for "enforcement of the Sixth Amendment's guarantee of a jury trial in today's world." Id. at 11. As the Court explained, the "world" of sentencing formerly relied primarily on indeterminate sentencing, i.e., a regime in which, for every offense, the sentencing judge had discretion to select a sentence...

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