Sutton v. United States, CRIMINAL ACTION 1:17CR27

• Court: U.S. District Court — Northern District of West Virginia
• Writing for the Court: IRENE M. KEELEY UNITED STATES DISTRICT JUDGE
• Decision Date: 30 July 2021
• Docket Number: CIVIL ACTION 1:18CV163,CRIMINAL ACTION 1:17CR27
• Citation: Sutton v. United States, CIVIL ACTION 1:18CV163, CRIMINAL ACTION 1:17CR27 (N.D. W.Va. Jul 30, 2021)
• Parties: DERRICK SUTTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

DERRICK SUTTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CRIMINAL ACTION No. 1:17CR27

CIVIL ACTION No. 1:18CV163

United States District Court, N.D. West Virginia

July 30, 2021

MEMORANDUM OPINION AND ORDER DENYING PETITIONER’S AMENDED § 2255 MOTION [DKT. NO. 11] DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL [DKT. NO. 24], AND DISMISSING CASE WITH PREJUDICE

IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

Pending before the Court is the amended pro se motion filed by the petitioner, Derrick Sutton (“Sutton”), to vacate set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, and a motion for appointment of counsel. For the reasons that follow, the Court DENIES Sutton’s § 2255 motion (Dkt. No 11),^[1] DENIES AS MOOT his motion for appointment of counsel (Dkt. No. 24), and DISMISSES this case WITH PREJUDICE.

I. BACKGROUND

A. Procedural History

On August 28, 2017, Sutton pleaded guilty to one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Case No. 1:17CR27, Dkt. No. 56). On January 3, 2018, the Court sentenced him to 151 months of imprisonment followed by 3 years of supervised release (Id., Dkt. No. 95).

On January 11, 2018, Sutton appealed to the United States Court of Appeals for the Fourth Circuit, questioning whether his counsel had rendered ineffective assistance by failing to advise him that he would likely be sentenced as a career offender (Id., Dkt. No. 97). On June 25, 2018, the Fourth Circuit affirmed this Court’s judgment (Id., Dkt. Nos. 137, 138).

On August 21, 2018, Sutton, acting pro se, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, asserting again that he had received ineffective assistance based on his counsel’s failure to advise him of the possibility that he could be sentenced as a career offender (Id., Dkt. No. 150; Case No. 1:18CV163, Dkt. No. 1). On May 15, 2018, Magistrate Judge Michael J. Aloi directed the Government to respond to Sutton’s motion (Case No. 1:17CR27, Dkt. No. 48).

On November 26, 2018, Sutton moved to amend his § 2255 motion, which Magistrate Judge Aloi granted (Id., Dkt. Nos. 161, 169). Thereafter, on April 2, 2019, Magistrate Judge Aloi ordered the Government to respond to Sutton’s motion (Id., Dkt. No. 169). Sutton has advanced three grounds in this amended motion: (1) that his counsel’s performance was objectively unreasonable; (2) that he was prejudiced by his counsel’s deficient performance; and (3) that he is entitled to an evidentiary hearing (Id., Dkt. No. 163). Following the Government’s response, Sutton did not file a reply brief, but instead moved the Court to appoint counsel for him to obtain copies of various statutes and to assist with the case (Id., Dkt. No. 180).

II. APPLICABLE LAW

28 U.S.C. § 2255(a) permits federal prisoners who are in custody to assert the right to be released if “the sentence was imposed in violation of the Constitution or laws of the United States,” if “the court was without jurisdiction to impose such sentence,” or if “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” A petitioner bears the burden of proving any of these grounds by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

III. DISCUSSION

Sutton’s central argument, that his attorney provided ineffective assistance by failing to object at sentencing to his career offender designation, hinges on a single premise: that his prior convictions under N.Y. Penal Law § 220.16(1) for attempted criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree do not qualify as predicate offenses for a career offender sentencing enhancement. This assertion is factually and legally incorrect.

Because Sutton’s prior convictions are both New York state felony offenses involving controlled substances, the Court must analyze the underlying statutes to determine if they match the generic definitions of “attempt” and “controlled substance offense.”

A. Categorical and Modified Categorical Approaches

“[S]entencing courts must compare the state and generic elements of such statutes as well as the elements of the underlying substantive statutory offense when determining whether a prior attempt conviction qualifies as a controlled substance offense.” United States v. Dozier, 848 F.3d 180, 182 (4th Cir. 2017). Pursuant to § 4B1.1 of the United States Sentencing Guidelines, a defendant is a career offender if, among other factors, “[he] has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).

In addressing whether a prior conviction triggers a Guideline sentencing enhancement, if the underlying statute is indivisible-i.e., it does not contain alternative elements, the Court applies the categorical approach. The point of this approach is “not to determine whether the defendant’s conduct could support a conviction for a [predicate offense], but to determine whether the defendant was in fact convicted of a crime that qualifies as a [predicate offense.]” Dozier, 848 F.3d at 183 (internal citations omitted). For a prior conviction to qualify as a predicate offense, “the elements of the prior offense [must] ‘correspond[] in substance’ to the elements of the enumerated offense.” Id. (internal citations omitted). Thus, under the categorical approach, a court focuses on the elements of the prior offense instead of on the conduct underlying the conviction.

Where a crime is defined with alternative elements, courts may review a limited set of documents to determine which version of the statute formed the basis of the prior conviction. United States v. Williams, 898 F.3d 323 (3d Cir. 2018) (citing Descamps v. United States, 570 U.S. 254, 261-62, 133 S.Ct. 2276 (2013)). “Such a statute is termed ‘divisible’” and this more record-intensive analysis is called the “modified categorical approach.” Williams, 898 F.3d at 333. Put another way, a statute phrased in the disjunctive, using “or” to offset subsections, is divisible “if it lists ‘elements’ of the offense and not ‘means’ of committing that offense.... ‘Elements are the constituent parts of a crime’s legal definition - the things the prosecution must prove to sustain a conviction.’” Mathis v. United States,U.S., 136 S.Ct. 2243 (2016). The purpose of the modified categorical approach is to “help effectuate the categorical analysis when a divisible statute . . . renders opaque which element played a part in the defendant’s conviction.” United States v. Abbott, 748 F.3d 154, 157-58 (3d Cir. 2014) (citing Descamps, 133 S.Ct. at 2283)).

1. Categorical Approach and New York Attempt Statute

In the Fourth Circuit, generic attempt involves (1) culpable intent to commit the crime charged, and (2) a substantial step towards the completion of the crime. Dozier, 848 F.3d at 186. “A substantial step is defined as a ‘direct act in a course of conduct planned to culminate in commission of a crime that is strongly corroborative of the defendant’s criminal purpose.’” Id. (quoting United States v. Engle, 676 F.3d 405, 423 (4th Cir. 2012) (additional citations omitted)). A substantial step “is more than mere preparation but less . . . than completion of the crime.” Id.

The New York attempt statute provides that “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” N.Y. Penal Law § 110.00. Because this statute does not include alternative elements, the statute is indivisible. See, e.g., Mathis, 136 S.Ct. at 2249. Two New York criminal laws also enumerate different classification categories depending on the scope and means of punishment for the underlying statutory offense. Relevant here, N.Y. Penal Law § 110.05 provides that “an attempt to commit a crime is a . . . [c]lass C felony when the crime attempted is a class B felony.”^[2] An individual convicted of a class B felony is exposed to a maximum of twenty-five years of imprisonment, while an individual convicted of a class C felony faces a maximum sentence of fifteen years of imprisonment. N.Y. Penal Law § 70.00(2)(b), (c).

Therefore, to be convicted of attempt in New York, a defendant must have a specific intent to commit a specific crime-“there can be no attempt to commit a crime that does not involve a specific intent.” Holmes v. Ricks, 378 F.Supp.2d 171, 180 (W.D.N.Y. 2004) (citing People v. Bracey, 41 N.Y.2d 296, 300, 360 N.E.2d 1094 (1977);^[3] People v. McDavis, 97 A.D.2d 302, 303-04, 469 N.Y.S.2d 508 (4th Dept. 1983)). Regarding the overt act requirement for attempt in New York:

[A] person can be convicted of an attempt to commit an offense only if it is proven that he came “very near” or “dangerously near” to successfully completing the intended crime, see People v. Acosta, 80 N.Y.2d 665, 670, 609 N.E.2d 518 (1993), “‘carr[ying] the project forward within dangerous proximity to the criminal end to be attained,’” People v. Bracey, 41 N.Y.2d 296, 300, 360 N.E.2d 1094 (1977) (additional citation omitted).

United States v. King, 325 F.3d 110, 114 (2d Cir. 2003).

Based on these elements, the degree of intent required under New York’s general attempt statute is not greater than the intent required under the generic definition, and the New York application of an overt act corresponds in substance to the generic definition of a substantial act. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143. Accordingly under the requisite categorical approach, Sutton’s prior state conviction for attempt qualifies as a generic...