U.S. v. Savage

• Decision Date: 18 September 2008
• Docket Number: Docket No. 06-4097-cr.
• Citation: 542 F.3d 959
• Parties: UNITED STATES of America, Appellee, v. Lavon SAVAGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

542 F.3d 959

UNITED STATES of America, Appellee, v. Lavon SAVAGE, Defendant-Appellant.

Docket No. 06-4097-cr.

United States Court of Appeals, Second Circuit.

Argued: January 31, 2008.

Decided: September 18, 2008.

Sarah F. Russell, Assistant Federal Defender, for Thomas G. Dennis, Federal Defender, New Haven, CT, for Appellant Lavon Savage.

William J. Nardini (Brian P. Leaming, Assistant United States Attorney, on the brief), for Kevin J. O'Connor, United States Attorney for the District of Connecticut, New Haven, CT, for Appellee United States of America.

Before: POOLER, LIVINGSTON, Circuit Judges, and KAPLAN, District Judge.¹

POOLER, Circuit Judge:

Lavon Savage ("Savage") appeals from a judgment of the United States District Court for the District of Connecticut (Burns, J.), entered on August 24, 2006, convicting him, pursuant to a guilty plea, of possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and sentencing him principally to seventy-seven months' imprisonment and three years' supervised release. Savage appeals only the sentence. The district court's calculation of the applicable Guidelines' sentencing range was based, in relevant part, on the court's determination that one of Savage's previous felony convictions, entered following an Alford plea, was a conviction for a "controlled substance offense," as that term is defined in U.S. Sentencing Guidelines Manual ("Guidelines") § 4B1.2(b). Because nothing in the statute of conviction, the charging document, the plea colloquy or other comparable judicial record established with certainty that Savage necessarily pleaded guilty to the elements of a controlled substance offense, the district court committed procedural error in its calculation of the Guidelines sentencing range. Accordingly, we vacate the sentence and remand for resentencing.

BACKGROUND

On December 12, 2005, Savage, pursuant to a plea agreement, pleaded guilty to possessing ammunition subsequent to a felony conviction, in violation of 18 U.S.C. § 922(g)(1). Guidelines § 2K2.1(a)(2) calls for a base offense level of twenty-four "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). Guidelines § 2K2.1(a)(4)(A) calls for a base offense level of twenty if the defendant had only one such predicate conviction. Id. § 2K2.1(a)(4)(A). Prior to sentencing, the Probation Office calculated a base offense level of twenty-four, based on its conclusion that Savage had sustained two predicate convictions under Guidelines § 2K2.1(a)(2): (i) a 1999 felony conviction for assault in the second degree, which, beyond dispute, qualified as a felony conviction of a crime of violence; (ii) a 2002 conviction for a violation of Connecticut General Statute § 21a-277(b) ("Connecticut Statute"), which, here disputed, allegedly qualified as a felony conviction of a controlled substance offense. After applying a three-point reduction for acceptance of responsibility, the PSR calculated an adjusted offense level of twenty-one, which, combined with Savage's criminal history category of VI, resulted in a Guidelines' recommended range of seventy-seven to ninety-six months' imprisonment. The district court, over objections from defense counsel, adopted the sentencing range calculated by the PSR. On August 24, 2006, the court sentenced Savage, at the lowest end of the Guidelines' range, to seventy-seven months' imprisonment, three years' supervised release, and $100 special assessment.

The only dispute in the calculation of the sentence is whether Savage's 2002 Connecticut conviction was a conviction for a controlled substance offense, as defined in Guidelines § 4B1.1(b).² If it was not, then the district court should have applied a base offense level of twenty, rather than twenty-four, under Guidelines § 2K2.1(a)(4)(A). Applying the same three-point reduction for acceptance of responsibility, this would have resulted in a Guidelines' range of fifty-one to sixty-three months' imprisonment. U.S.S.G. Table, Ch.5, Pt.A.

The Connecticut Statute provides, in pertinent part:

Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance ... may, for the first offense, ... be imprisoned not more than seven years....

Conn. Gen.Stat. § 21a-277(b) (emphases added). And the Connecticut statute defines a "sale" of a controlled substance, in pertinent part, as "any form of delivery[,] which includes barter, exchange or gift, or offer therefor...." Conn. Gen.Stat. § 21a-240(50) (emphasis added).

The Guidelines definition of a "controlled substance offense" provides, in pertinent part:

The term "controlled substance offense" means an offense under ... state law ... that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute or dispense.

U.S.S.G. § 4B1.2(b). Application Note 1 to this section further provides that a controlled substance offense "include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. cmt. n. 1.

In an objection letter to the Pre-Sentence Report, defense counsel argued that the Connecticut conviction was not a conviction for a controlled substance offense because the Connecticut Statute criminalized some conduct that falls outside the federal definition of a "controlled substance offense." Specifically, defense counsel argued that a mere offer of a controlled substance is criminalized by the Connecticut Statute but does not qualify as a controlled substance offense under the Guidelines.

In response, the government introduced evidence from the Connecticut court of conviction in an attempt to show that Savage pleaded guilty to the narrowed charge of exchanging a controlled substance for money, which, the government argued, qualifies as a controlled substance offense. The government submitted the following two pieces of evidence: (i) a transcript of the plea colloquy from the state court; (ii) a certificate of disposition from the state court, indicating that the defendant was convicted of "Count One in the Information," which charged: "Sale of Controlled Substance ... in violation of [Connecticut General Statute § ] 21a-277(b)."

Plea Colloquy

The transcript of the state plea proceedings revealed the following. Savage pleaded guilty under the Alford doctrine, whereby he "voluntarily, knowingly, and understandingly consent[ed] to the imposition of a prison sentence even [though] he [was] unwilling or unable to admit his participation in the acts constituting the crime." North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The distinguishing feature of an Alford plea is that the defendant does not confirm the factual basis for the plea. See State v. Faraday, 268 Conn. 174, 842 A.2d 567, 588 (2004) ("A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.").

At the beginning of the proceedings, the following exchange occurred:

[Prosecutor]: L[a]von Savage ... you are charged in count one of the Information, sale of marijuana, in violation of Connecticut General Statute 21a-277(b), what is your plea, guilty or not guilty?

[Savage]: Guilty.

The prosecutor then recited the State's view of the factual basis for the plea:

[Prosecutor]: Your honor, the factual basis ... [is that] police acting in an undercover capacity purchased drugs ... from Mr. Savage....

After the judge asked some preliminary questions, Savage attempted to contest the prosecutor's rendition of the facts, but the state judge interrupted:

The Court: Is that under the—do you want the sale to be taken under the Alford doctrine?

[Defense Counsel]: I think it would be well advised.

[Savage]: Yeah, cuz somebody else—

The Court: All right. We'll cover that. What I'm asking you now is, is anybody forcing you—I know that you may have a disagreement with the facts that [the prosecutor] just said, but are you deciding to plead guilty today voluntarily and of your own free will?

[Savage]: Yes, sir.

The following exchange then occurred:

The Court: All right. Now, you've heard the State recite the facts. Now, in one of the cases³ the State claims that you sold a quantity of marijuana. That charge you pled guilty to under what's called the Alford doctrine. I take that to mean that you don't agree with all or some of the facts that [the prosecutor] just reported to the Court but after discussing the case with your lawyer, you feel that if you went to trial, even though you don't agree with the facts, you feel there's a significant chance that you could get convicted of that charge.

[Savage]: Yeah.

The state court then completed the colloquy, without asking the defendant to allocute to the factual basis for the charge. Prior to accepting the plea, the court asked the defendant if he had any questions.

[Savage]: I just want to tell you the reason for the Alford Doctrine charge.

The Court: You don't have to if you don't want to.

[Savage]: Because somebody else gave it to him and it wasn't me. I didn't give him the weed, I didn't take the money, nothing. I was just there, but the police think I'm the ringleader, they just picked me and they overlooked the guy that gave them this stuff and took the money.

The Court: Well, that's why I—...— assume that you're pleading guilty under the Alford Doctrine. Even though you don't agree with the facts you want to take advantage, by pleading...