U.S. v. Driskell

• Decision Date: 08 November 2001
• Docket Number: DEFENDANT-APPELLANT,Docket No. 01-1091
• Citation: 277 F.3d 150
• Parties: (2nd Cir. 2002) UNITED STATES OF AMERICA, APPELLEE, v. MALIK DRISKELL, ALSO KNOWN AS MAX DEL VALLE, Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 150

277 F.3d 150 (2nd Cir. 2002)

UNITED STATES OF AMERICA, APPELLEE, v. MALIK DRISKELL, ALSO KNOWN AS MAX DEL VALLE, DEFENDANT-APPELLANT.

Docket No. 01-1091

UNITED STATES COURT OF APPEALS For the Second Circuit

Argued: November 8, 2001

Decided January 7, 2002

Defendant-Appellant Malik Driskell appeals from a final judgment of conviction following his plea of guilty to a one-count indictment charging him with a violation of 18 U.S.C. § 922(g)(1) by possessing a firearm and ammunition after having been convicted of the New York State felony of attempted murder in the second degree. We hold that when calculating a defendant's criminal history under section 4A1.1 of the United States Sentencing Guidelines, a district court may consider a prior conviction that was later adjudicated as a "youthful offender" finding under New York law. For the reasons that follow, we affirm.

Edward Zas, The Legal Aid Society Federal Defender Division, Appeals Bureau, New York, Ny, for Defendant-Appellant.

Anirudh Bansal, Assistant United States Attorney (Jamie L. Kogan, Assistant United States Attorney, of counsel), on behalf of Mary Jo White, United States Attorney for the Southern District of New York, New York, Ny, for Appellee.

Before: Miner, Straub, and B. D. Parker, Circuit Judges.

Straub, Circuit Judge

Defendant-Appellant Malik Driskell appeals from a final judgment of conviction entered on February 5, 2001 in the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge), following his plea of guilty to a one-count indictment charging him with a violation of 18 U.S.C. § 922(g)(1) by possessing a firearm and ammunition after having been convicted of the New York State felony of attempted murder in the second degree. Driskell contends that the District Court erred by assessing three criminal history points for his 1988 conviction of attempted murder in the second degree because, upon his subsequent adjudication as a youthful offender in respect of that offense, that conviction was "deemed vacated and replaced by a youthful offender finding," see N.Y. Crim. Proc. Law § 720.20(3) (McKinney 1995). He argues that the resulting sentence of 16 to 48 months' imprisonment imposed for this youthful offender adjudication could not be deemed to result from an "adult conviction," U.S.S.G. § 4A1.1, comment. (n.1), as defined by section 4A1.2(d) of the United States Sentencing Guidelines Manual ("Guidelines") and was therefore improperly included in the District Court's calculations. We hold that when calculating a defendant's criminal history under section 4A1.1 of the Guidelines, a district court may consider a prior conviction that was later adjudicated as a "youthful offender" finding under New York law. During its consideration, the district court should examine the nature of this prior proceeding, the sentence received and actually served, and where the defendant was incarcerated. We affirm.

BACKGROUND

On March 7, 2000, Driskell, armed with a loaded nine-millimeter handgun, robbed an individual at gunpoint on the rooftop of an apartment building in the Bronx, New York. When Driskell was subsequently arrested, the police searched a bag he was carrying and found the handgun, one hundred rounds of ammunition, and property belonging to the robbery victim who had identified Driskell as his assailant. Following Driskell's arrest, the New York Police Department conducted a review of his criminal history and discovered that Driskell was a prior felon who had been convicted on April 27, 1993 of attempted murder in the second degree. The police also confirmed that the firearm he possessed had not been manufactured in the State of New York; thus the gun had traveled in interstate commerce.

Driskell was indicted by a federal grand jury and charged with one count of illegal possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Pursuant to a written plea agreement, Driskell pled guilty to this charge on October 18, 2000. In the plea agreement, the parties stipulated that Driskell had an adjusted offense level of 22, seven criminal history points resulting in a Criminal History Category of IV, and therefore a stipulated Guidelines sentencing range of 63 to 78 months' imprisonment.

Contrary to the stipulation in the plea agreement, the United States Probation Office determined that Driskell had ten criminal history points and a Criminal History Category of V. The discrepancy resulted from the Probation Office's consideration of a 1988 conviction, in the New York State Supreme Court, Bronx County, of attempted murder in the second degree committed when Driskell was seventeen years old, after which Driskell had been adjudicated a "youthful offender" under New York State law.

In New York, an individual between the ages of sixteen and nineteen who is charged with a criminal offense (excluding certain enumerated felonies) and fulfills other specified conditions (including having not been previously convicted and sentenced for a felony nor previously adjudicated a youthful offender) is deemed an "eligible youth." N.Y. Crim. Proc. Law § 720.10(1)-(2) (McKinney 1995). Such an "eligible youth" is tried "as any criminal defendant would be." Capital Newspapers Div. of the Hearst Corp. v. Moynihan, 71 N.Y.2d 263, 268, 519 N.E.2d 825, 827, 525 N.Y.S.2d 24, 26 (1988). "Upon conviction of an eligible youth, the court must order a pre-sentence investigation of the defendant" and after receipt of the investigation report, "the court must determine [during sentencing] whether or not the eligible youth is a youthful offender" while considering certain enumerated factors. N.Y. Crim. Proc. Law § 720.20(1).¹ "Upon determining that an eligible youth is a youthful offender, the court must direct that the conviction be deemed vacated and replaced by a youthful offender finding" and sentence the defendant pursuant to § 60.02 of New York's penal law.² See id § 720.20(3).³ The youthful offender finding and resulting sentence together constitute a "youthful offender adjudication." Id. § 720.10(6). If adjudicated as a youthful offender, that

adjudication is not a judgment of conviction for a crime or any other offense, and does not operate as a disqualification of any person so adjudged to hold public office or public employment or to receive any license granted by public authority but shall be deemed a conviction only for the purposes of transfer of supervision and custody.

Id.§ 720.35(1). As we explained in United States v. Matthews, the

youthful offender provisions of the Criminal Procedure Law emanate from a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts.... The youthful offender statute was designed to act as a buffer between the first offender and the society by not labeling him as a convicted felon.

205 F.3d 544, 548 (2d Cir. 2000) (citations and internal quotation marks omitted).

Although the official records related to the case once a youthful offender adjudication is made are confidential, they can be used for subsequent purposes. See id. at 547. A criminal defendant's record of his previous adjudication as a youthful offender may be considered, for example, in determining whether a court should in its discretion issue an order of bail, see N.Y. Crim. Proc. Law § 510.30(2)(a)(v), or in determining whether a youth is eligible to be found a "youthful offender" upon being accused of another crime committed while between the ages of 16 and 19, id. § 720.10(2)(c).

Section 4A1.1 of the Guidelines directs a district court to add three points to a defendant's criminal history for each prior sentence of imprisonment exceeding one year and one month. But, it instructs the district court to count such a prior sentence when the underlying offense was committed prior to the defendant's eighteenth birthday "only if it resulted from an adult conviction. See § 4A1.2(d)." U.S.S.G. § 4A1.1, comment. (n.1). Section 4A1.2(d) provides: "(1) If the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add 3 points under § 4A1.1(a) for each such sentence." The commentary to this section explains that this subsection

covers offenses committed prior to age eighteen. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records. Therefore, for offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant's commencement of the instant offense are counted.

Id., comment. (n.7).

During the sentencing hearing, Driskell himself objected to, among other things, the inclusion of the 1988 conviction in his criminal history. He argued that it should not have been counted because he committed the crime when he was seventeen and was adjudicated a "youthful offender."⁴ The District Court agreed with the government's interpretation that because a youthful offender adjudication does not operate as an expungement of a conviction under our decision in Matthews, it may be considered during the calculation of the defendant's criminal history points. Although Driskell was precluded from arguing that his conviction operated as an expungement by our holding in Matthews, he made the distinct but related argument that a conviction for an offense committed prior to age eighteen but replaced by a youthful offender adjudication, regardless if expunged or simply set aside, may not be considered at all.⁵ The District Court then sentenced Driskell to a term of 80 months' imprisonment, near the bottom of the applicable Guidelines range.

Driskell timely appealed. On appeal, Driskell argues that...