U.S. v. Lynch

• Citation: 518 F.3d 164
• Decision Date: 27 February 2008
• Docket Number: Docket No. 05-6048-cr.
• Parties: UNITED STATES of America, Appellee, v. David LYNCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

518 F.3d 164

UNITED STATES of America, Appellee, v. David LYNCH, Defendant-Appellant.

Docket No. 05-6048-cr.

United States Court of Appeals, Second Circuit.

Argued: August 9, 2007.

Decided: February 27, 2008.

Denis Patrick Kelleher, Kelleher & Dunne LLP, New York, NY, for Defendant-Appellant.

Christopher L. Lavigne, Assistant United States Attorney for the Southern District of New York (Michael J. Garcia, United States Attorney, John M. Hillebrecht, Assistant United States Attorney, on the brief), New York, NY, for Appellee.

Before: CALABRESI, RAGGI, HALL, Circuit Judges.

HALL, Circuit Judge:

Defendant-appellant David Lynch appeals from the portion of a judgment of conviction in the United States District Court for the Southern District of New York (Richard M. Berman, Judge) that sentenced him to the statutory minimum of fifteen years' imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), based on three prior violent felony convictions. On appeal, Lynch argues that two of the prior offenses, criminal possession of a weapon and attempted burglary, are not "violent felonies" within the ambit of the ACCA. We agree with the district court that both crimes are violent felonies because they "involve[ ] conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(ii). It was not error, therefore, to sentence Lynch pursuant to the ACCA. We affirm.

Background

In May 2003 a police officer saw a vehicle run a red light. David Lynch was a passenger in the back seat of the vehicle. When the police officer stopped the vehicle, he saw Lynch moving his hands around in the back seat. Lynch refused to show his hands, and after an ensuing struggle with the police officers, Lynch was handcuffed and subdued. A pat down of Lynch revealed a loaded firearm. Lynch was already a convicted felon and thus was indicted as a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The government asserted that Lynch was subject to a fifteen-year statutory mandatory minimum sentence under the ACCA because he previously had been convicted of three violent felonies and was currently charged with violating § 922(g).¹ Lynch's prior New York state-court felony convictions were for: (1) criminal possession of a weapon in the second degree in 1989; (2) attempted robbery in the second degree in 1986; and (3) attempted burglary in the third degree in 1985.

In March 2005, Lynch appeared before Judge Berman to plead guilty to the indictment. He did not concede, however, that he was subject to the statutory mandatory minimum sentence under the ACCA; he noted that he intended to press the issue before the district court. Later, Lynch argued that his convictions for attempted burglary and criminal possession of a weapon were not for violent felonies as defined by the ACCA.²

The 1985 Attempted Burglary Conviction

In 1985, Lynch pled guilty to attempted burglary in the third degree in violation of New York Penal Law § 140.20 in Nassau County Superior Court. Section 140.20 provides that "[a] person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein." A related section of the Penal Law defines "building" as "any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer." N.Y. Penal Law § 140.00(2). The criminal information charged Lynch with burglary in the third degree, namely, that Lynch had "knowingly entered and remained unlawfully in a building known as a clothing store located at 110 Main Street, Hempstead, New York, with intent to commit a crime therein." (Nassau County Super. Ct. Information, Nov. 20, 1984.) Lynch pled to the lesser offense of attempted burglary in the third degree, for which there was no separate charging document. The federal Presentence Investigation Report ("federal PSR") prepared in connection with the sentencing in this case incorporated facts from the Nassau County presentence report ("state PSR") authored at the time of Lynch's guilty plea to the attempted burglary. The federal PSR stated that: "[a]ccording [to] a copy of a presentence report prepared by the Nassau County Probation Department on August 29, 1984, Lynch and three other individuals burglarized a Hempstead store and stole a quantity of clothing." (Federal PSR ¶ 38.) Although Lynch and the government tried to obtain copies of the transcripts of the plea proceedings related to the attempted burglary conviction, they were both told that those transcripts no longer existed.

The 1989 Criminal Possession of a Weapon Conviction

In 1989, Lynch pled guilty to criminal possession of a weapon in the second degree in violation of New York Penal Law § 265.03 in Nassau County court. Section 265.03, as it read in 1989, provided that "[a] person is guilty of criminal possession of a weapon in the second degree when he possesses a machine-gun or loaded firearm with intent to use the same unlawfully against another." According to both the indictment and the plea allocution, Lynch possessed a loaded firearm, specifically a .32 caliber semi-automatic pistol, which he used to shoot Neil Williams. Apparently Lynch and his girlfriend were in a cab together, and when Lynch exited the cab, he shot Williams. Lynch explained at his plea allocution:

I was coming from my house, and me and Neil Williams, he had drawn a pistol at me and shot me in my face, and I had shot him back only to protect my own life. I was scared at the time. I didn't want to shoot him or anything like that. It was out of a thing of fear. I was trying to protect my own self.

(Plea Hr'g Tr. Oct. 25, 1989 at 31.) The Nassau County court accepted Lynch's guilty plea.

District Court Sentencing

Following the plea proceedings for the current offense, Lynch submitted a letter to the district court in which he argued that his prior crimes of attempted burglary and criminal possession of a weapon were not violent felonies. As to the attempted burglary, Lynch argued that Congress did not intend to include attempted burglary in the definition of violent felony and, further, that there were insufficient facts for the court to conclude that he had attempted to commit a generic burglary.³ The government, in its letter, responded by pointing out that Lynch had pled guilty to an information that charged him with a generic burglary because it was the burglary of a store. The government further argued that attempted burglary under this particular New York statute had been held to constitute a violent felony in United States v. Andrello, 9 F.3d 247, 249 (2d Cir.1993) (per curiam).

As to his conviction for criminal possession of a weapon, Lynch argued that he never admitted to having the unlawful intent to use the weapon — an element he asserted was a prerequisite to the crime being classified as a violent felony based on this Court's decision in United States v. Danielson, 199 F.3d 666 (2d Cir.1999) (per curiam). The government countered that having pled guilty to the particular weapons charge, Lynch necessarily admitted the elements of the offense, which included both possession of the weapon and intent to use it unlawfully.

At sentencing, the district court agreed with the government's arguments and found that all three of Lynch's prior crimes were violent felonies. With respect to Lynch's attempted burglary in the third degree, the district court found that it was a violent felony based upon Andrello, and because a copy of the state court information made it clear that Lynch pled guilty to an attempted generic burglary of a clothing store. With respect to Lynch's criminal possession of a weapon in the second degree, the district court agreed with the government that the indictment and plea allocution showed that Lynch admitted to possessing the weapon with unlawful intent to use it, specifically rejecting the argument that, at his plea proceedings in state court, Lynch admitted only to possession and not to having the requisite criminal intent. Citing Danielson, 199 F.3d 666, the district court concluded that Lynch's criminal possession of a weapon was a violent felony.⁴ The district court sentenced Lynch to fifteen years' imprisonment, the mandatory minimum under the ACCA, followed by five years' supervised release and the necessary special assessment.

Lynch appeals his sentence.

Discussion

I. Standard of Review

We review de novo the district court's determination of whether a prior offense is a "violent felony" under the ACCA. United States v. King, 325 F.3d 110, 113 (2d Cir.2003).

II. Applicable Law

A defendant convicted of violating 18 U.S.C. § 922(g) who has three previous convictions for violent felonies or serious drug offenses is subject to a mandatory minimum sentence of fifteen years' imprisonment. 18 U.S.C. § 924(c). In pertinent part, the term "violent felony" means "any crime punishable by imprisonment for a term exceeding one year ... that ... (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). For Lynch's two prior offenses, the attempted burglary and the criminal possession of a weapon, to constitute violent felonies under the ACCA, they would have to fall under the residual, or "otherwise," clause in § 924(e)(2)(B)(ii), because neither would qualify as one of the four enumerated offenses.

To determine whether a prior offense is a "violent felony" for purposes of the ACCA, we use a "categorical approach." United States v. Rosa, 507 F.3d 142, 151 (2d Cir.2007) (citing Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Taylor instructs that the sentencing court must "look only...