United States v. Waite
| Decision Date | 31 August 2021 |
| Docket Number | August Term 2020,No. 18-2651,18-2651 |
| Parties | UNITED STATES of America, Appellee, v. Selbourne WAITE, Defendant-appellant, Hibah Lee, Mark Gabriel, Bobby Moore, Jr., Andre Davidson, Bobby Saunders, Carmen Moore, Tyrone Moore, Hisan Lee, Delroy Lee, Robert Morrison, Dakwan Edwards, Marquish Jones, Mark Hart, Raheem Tucker, Demetri Young, Christopher Diaz, Anthony Michael Diaz, Paul Love, Aaron Birch, Kevin Beckford, Jermell Falzone, Levar Gayle, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Michelle Anderson Barth, The Law Office of Michelle Anderson Barth, Burlington, VT, for Defendant-Appellant.
Andrew Chan (Thomas McKay, on the brief), Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Before: Cabranes, Raggi, and Sullivan, Circuit Judges.
Defendant-Appellant Selbourne Waite appeals from his conviction and sentence based in part on four counts of using a firearm in furtherance of crimes of violence – specifically, actual and attempted Hobbs Act robbery (and aiding and abetting the same) – in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Waite was first sentenced in 2011 principally to 125 years’ imprisonment based on these counts of conviction and others, but this Court vacated his original sentence in 2016. See United States v. Lee , 660 F. App'x 8, 22–23 (2d Cir. 2016). On March 1, 2018, the district court resentenced Waite to 115 years’ imprisonment, the then-applicable mandatory minimum sentence for Waite's counts of conviction. Now on appeal for the second time, Waite argues that (1) four of his § 924(c) convictions are invalid in light of the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), because the predicate offenses do not constitute crimes of violence; (2) his revised 115-year sentence violates the Eighth Amendment's bar on cruel and unusual punishments following Congress's passage of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018) ("First Step Act"); and (3) even if there is no Davis error or Eighth Amendment violation, this Court should nonetheless vacate his sentence and remand for resentencing to allow the district court to reconsider Waite's sentence in view of the First Step Act. For the reasons set forth below, we reject each of Waite's challenges and affirm the district court's judgment.
From approximately 1997 to 2007, Waite was a member of the Dekalb Avenue Crew (the "Crew"), a criminal organization centered around Dekalb Avenue in the Bronx that engaged in extensive drug trafficking, armed robberies, and murders. During that time, Waite sold drugs with other members of the Crew and regularly carried guns to protect the Crew's drug business. Waite also participated in numerous actual and attempted armed robberies, four of which are relevant to this appeal.
First, on October 4, 2004, Waite and another Crew member attempted to rob a man believed to have large amounts of cocaine and cash in a safe in his house. The victim was home, however, and when he confronted the robbers, Waite shot at him but missed. Waite and his co-conspirator successfully made away with the safe, but it turned out to be empty.
Second, on January 31, 2005, Waite and three other Crew members robbed the apartment of a rival drug trafficker. They entered the apartment brandishing firearms, and when they encountered a young woman babysitting the drug dealer's infant child, they tied up the babysitter and held her at gunpoint, demanding to know where the drug dealer's money was stashed. The robbers ultimately stole $20,000 in cash.
Third, on March 24, 2005, Waite and two other Crew members committed a robbery on Paulding Avenue in the Bronx. After Waite and the Crew members pulled up next to the victim in their car, Waite got out of the car carrying a gun and demanded money from the victim. When the victim resisted, Waite fired several shots as a threat. Waite ultimately took a bag from the victim containing $8,000 to $10,000 in cash.
Finally, on June 9, 2005, Waite and two other Crew members attempted to rob three suspected drug dealers of approximately five pounds of marijuana. When the robbery went awry, one of Waite's co-conspirators fired his gun in the air to give Waite and the other co-conspirator an opportunity to get away.
On February 20, 2008, Waite and other members of the Crew were charged in a thirty-five-count superseding indictment. With respect to each of the four completed and attempted robberies discussed above, Waite was charged with two counts of Hobbs Act robbery (and aiding and abetting the same), in violation of 18 U.S.C. §§ 1951 and 2; two counts of attempted Hobbs Act robbery (and aiding and abetting the same), in violation of 18 U.S.C. §§ 1951 and 2; and four counts of using a firearm in furtherance of those four crimes of violence, all in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2.
Waite was also charged with: (1) a substantive violation of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961, 1962(c) ; (2) RICO conspiracy, in violation of 18 U.S.C. § 1962(d) ; (3) conspiracy to traffic narcotics, in violation of 21 U.S.C. § 846 ; (4) conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951 ; and (5) use of a firearm in furtherance of the charged narcotics conspiracy, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Finally, Waite was charged with four crimes premised on the murder and attempted robbery of Bunny Campbell, a suspected rival drug dealer: (1) murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (2) attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951 and 2; (3) use of a firearm in furtherance of a crime of violence (the attempted Hobbs Act robbery), in violation of §§ 924(c)(1)(A) and 2; and (4) causing death with a firearm in the course of a § 924(c) offense, in violation of 18 U.S.C. §§ 924(j)(1) and 2.1
Waite proceeded to trial, and he was convicted on all counts except for those involving the murder and attempted robbery of Bunny Campbell. As relevant to this appeal, the jury was instructed on aiding-and-abetting liability for all of the Hobbs Act robbery offenses and attempted Hobbs Act robbery offenses. The jury verdict form did not require the jury to specify whether Waite's § 924(c) convictions were predicated on an aiding-and-abetting theory or on Waite's direct liability for those offenses.
On August 22, 2011, the district court (Barbara S. Jones, J. ) sentenced Waite to 125 years’ imprisonment, consisting of a mandatory minimum term of 20 years’ imprisonment for the narcotics conspiracy, a mandatory minimum consecutive term of 105 years’ imprisonment for the five § 924(c) convictions, and concurrent sentences of time served on the remaining RICO and Hobbs Act robbery counts. In calculating this original sentence, the district court found that the Fair Sentencing Act of 2010, Pub. 111-220, 124 Stat. 2372 (2010) ("Fair Sentencing Act"), did not apply retroactively to Waite's underlying offense conduct, which was consistent with this Court's precedent at the time. See United States v. Acoff , 634 F.3d 200, 202 (2d Cir. 2011). Accordingly, the district court determined that Waite's narcotics conspiracy conviction had a mandatory minimum sentence of 20 years instead of 10 years.
Waite appealed, and on August 24, 2016, this Court affirmed his convictions and sentence in all respects except one: on appeal, the government conceded that the Supreme Court's decision in Dorsey v. United States , 567 U.S. 260, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), made clear that the Fair Sentencing Act applied retroactively to Waite's narcotics conspiracy conviction. Lee , 660 F. App'x at 22. We therefore remanded for resentencing in light of Dorsey . Id. at 22–23.
On March 1, 2018, the district court (now Loretta A. Preska, J. ) resentenced Waite to a term of 115 years’ imprisonment. Consistent with this Court's decision and Dorsey , the district court imposed a 10-year mandatory minimum term of imprisonment for Waite's narcotics conspiracy conviction. But other than this one change, the district court imposed the same sentence – including the mandatory minimum consecutive sentences on the § 924(c) counts – that it had originally imposed in 2011.
Waite again appealed from his conviction and sentence, though not without some logistical difficulties. While Waite's pro se notice of appeal is dated March 3, 2018, it was not filed in the district court until September 5, 2018. According to an affidavit submitted to the district court by Waite's trial counsel, Waite – contrary to his counsel's advice – had mailed his pro se notice of appeal from the Metropolitan Detention Center "to the Clerk of Court at ‘1500 Pearl Street.’ " Aff. of Susan V. Tipograph ¶ 4, United States v. Waite , No. 07-cr-00003 (S.D.N.Y. Jan. 24, 2019), ECF No. 792-1. After Waite was returned to his designated long-term detention facility, his pro se notice of appeal was returned to him on August 14, 2018 unopened for having an incorrect address. Id. ¶ 5. Waite then re-mailed the notice of appeal to the correct address – at 500 Pearl Street – and it was docketed on September 5, 2018. Id. ¶ 6.
When Waite first filed his notice of appeal in September 2018, his original counsel filed a brief, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that Waite's appeal presented no non-frivolous issues worthy of review. While Waite's appeal has been pending, however, two key developments have significantly changed the legal landscape surrounding 18 U.S.C. § 924(c).
First, on December 21, 2018, the First...
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