United States v. Barrow

230 F.Supp.3d 116

UNITED STATES of America,

v.Troy BARROW, Defendant.

16–CR–94

United States District Court, E.D. New York.

Signed February 1, 2017

Filed February 2, 2017

United States , Robert L. Capers, United States Attorney, E.D.N.Y., By: David K. Kessler, U.S. Attorney's Office, E.D.N.Y., 271 Cadman Plaza East, Brooklyn, NY 11201

Defendant , Michael K. Schneider, Federal Defenders of New York, One Pierrepont Plaza, 16th Floor, Brooklyn, NY 11201

STATEMENT OF REASONS PURSUANT TO 18 U.S.C. § 3553(c)(2)

JACK B. WEINSTEIN, Senior United States District Judge:

I. Introduction...119

A. Instant Offense...119

B. Arrest...119

C. Guilty Plea...119

D. Sentencing Hearing...119

II. Offense Level, Category, and Sentencing Guidelines Range...120

A. Effect of the Older Conviction on Sentencing Guidelines Range...120

B. Effect of More Recent Conviction on Sentencing Guidelines Range...120

a) Determining if a Prior Conviction is Relevant under the Sentencing Guidelines...120

b) The Elements of the Generic "Controlled Substance Offense" Predicate...122

c) Is Mr. Barrow's More Recent Conviction a Predicate "Controlled Substance Offense"?...123

d) Is the Modified Categorical Approach Applicable?...124

e) Is there a "realistic probability" the conviction involved HCG?...124

C. Guidelines Calculation...125

III. Law...125

IV. 18 U.S.C. § 3553(a) Considerations...126

V. Conclusion...127

I. Introduction

Defendant has pled guilty to two serious crimes—illegal possession and trafficking in firearms. He was sentenced to 42 months incarceration, three years supervised release, and two $100 special assessments. See January 17, 2017 Hearing Transcript ("Hr'g Tr."). The government sought a much higher sentence based on two predicate state drug convictions. The court rejected the government's view, and applied a strict categorical rule.

A. Instant Offense

Beginning in September 2014, Barrow became the subject of a New York City Police Department ("NYPD") and federal Bureau of Alcohol, Tobacco and Firearms ("ATF") investigation. Presentence Investigation Report ("PSR") at ¶ 7. Information of his criminal activity had been supplied to law enforcement officers by a confidential informant. Id. at ¶ 9. Over the course of 15 months, Barrow sold 14 firearms to undercover law enforcement agents in 12 separate transactions. Id. He did not know the individuals to whom he sold the guns, nor did he know for what purpose they were being purchased. See Hr'g Tr. at 19:1–8.

The following are three illustrative examples of defendant's criminal conduct. On July 30, 2015, he told an undercover officer he had a firearm for sale. The officer met him that same day and gave Mr. Barrow $850 in exchange for a HiPoint .45 caliber pistol. The transaction was recorded using audio and video devices. PSR at ¶ 10. On September 8, 2015, the same pattern was repeated, except this time Mr. Barrow sold the undercover officer a Taurus Model PT738 ACP semiautomatic .380 pistol for $800. Id. at ¶ 11. On November 9, 2015, Barrow sold two firearms, a Sar Arms model SARB6P 9 mm semiautomatic pistol and a HiPoint model C9 9 mm semiautomatic pistol, to an undercover officer in the Bronx for $1800. He showed the officer a photograph of another firearm and told him that he could acquire and sell additional firearms. Id. at ¶ 12. The defendant was not licensed to deal in or possess firearms. Id. at ¶ 13.

B. Arrest

He was arrested on January 29, 2016. Id. at ¶ 14. Until June 8, 2016, he was in custody. Id. at ¶ 6. He was then released on bond and confined to his home with electronic ankle bracelet monitoring. Id.

C. Guilty Plea

On July 11, 2016, defendant pled guilty to Counts 1 and 12 of a 13–count indictment. Id. at ¶ 1. Count 1 charged dealing in firearms without a license as an importer, manufacturer, dealer or collector of firearms in violation of 18 U.S.C. § 922(a)(1)(A), and 18 U.S.C. § 924(a)(1) (id. at ¶ 2); count 12 charged that on November 9, 2015, within the Eastern District of New York, the defendant, having previously been convicted of a crime punishable by a term of imprisonment exceeding one year, did knowingly and intentionally possess a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). Id. at ¶ 3. The other counts were dismissed at the hearing. See Hr'g Tr. at 26:16–18.

D. Sentencing Hearing

A sentencing hearing was conducted in January 17, 2017. See generally id. The hearing was videotaped. See 18 U.S.C. § 3553(a) ; In re Sentencing , 219 F.R.D. 262, 264–65 (E.D.N.Y. 2004) (describing the value of video recording).

Mr. Barrow affectionately held his infant son on his lap. His primary plea for leniency was based on a desire to be present during his boy's formative years to ensure that he was not enticed by the "streets" the same way Mr. Barrow was. See Hr'g Tr. at 16:12–23.

II. Offense Level, Category, and Sentencing Guidelines Range

Defendant and prosecution have different views on the proper guidelines calculation. The United States Probation Office, relying on "two felony convictions of either a crime of violence or a controlled substance," believe the base offense level is 24. PSR at ¶ 19; U.S.S.G. § 2K2.1(a)(2). The relevant convictions are: (1) a conviction of violating a New York Class D felony, fifth-degree criminal sale of a controlled substance following a 1994 arrest (PSR at ¶ 35), and (2) a conviction for the same crime following a 2002 arrest. Id. at ¶ 40. Based on those convictions, the government argues that Mr. Barrow's base offense level is 24.

Defense counsel contend that those two convictions cannot serve to increase his offense level. The first conviction is too old, and the second conviction is not a "controlled substance offense" under the Guidelines definition. Under Mr. Barrow's formulation, his base offense level is 14. The U.S. Probation Office responds that the court can use the more recent conviction because the term "controlled substance offense," as defined by the Guidelines, refers to "an offense under federal or state law." U.S.S.G. § 2K2.1, n. 1 (incorporating by reference U.S.S.G. § 4B1.2(b) ).

A. Effect of the Older Conviction on Sentencing Guidelines Range

A prior sentence of 13 months of longer must have been imposed upon defendant, or he must have been incarcerated for that offense, within "fifteen years of the defendant's commencement of the instant offense." U.S.S.G. § 4A1.2(e)(1). Sentences that do not receive criminal history points do not increase a defendant's base offense level under § 2K2.1(a). See U.S.S.G. § 2K2.1, cmt., n. 10. In connection with Mr. Barrow's first relevant conviction, he received a sentence of 2.5 to 5 years in prison, and was released from custody on April 6, 1999. PSR at ¶ 35. The earliest criminal conduct the indictment charges Mr. Barrow with begins in September 2014, more than fifteen years after he was released from incarceration in relation to the 1995 conviction. See Indictment, Feb. 29, 2016, ECF No. 7. Therefore, this conviction cannot increase Mr. Barrow's base offense level. See U.S.S.G. § 2K2.1(a).

B. Effect of More Recent Conviction on Sentencing Guidelines Range

a) Determining if a Prior Conviction is Relevant under the Sentencing Guidelines

The base offense level used to calculate a sentencing range under the Sentencing Guidelines for a firearms crime can vary depending on the defendant's prior convictions. A base offense level of 24 must be applied "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) ), and a base offense level of 20 must be applied if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(4)(A). " ‘Controlled substance offense’ has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2." U.S.S.G. § 2K2.1, cmt., n. 1. Section 4B1.2 defines "controlled substance offense" as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b).

Discerning whether a conviction under state law is a conviction for a "predicate offense" for purposes of sentencing under the Guidelines cannot be accomplished by simply looking at the label attached to the state law of conviction. See, e.g., Taylor v. United States, 495 U.S. 575, 590, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (courts must look beyond the "technical definitions and labels under state law" when determining if a defendant has been convicted of a predicate offense that enhances his or her sentence). Instead, courts use a "categorical approach" and "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood." De s camps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). "The prior conviction qualifies as [a]... predicate only if the statute's elements are the same as, or narrower than, those of the generic offense." Id. "[I]f the statute [under which the defendant was convicted] sweeps more broadly than the generic crime [described in the Guidelines], a conviction under that law cannot count as [a] ... predicate, even if the defendant actually committed the offense in its generic form." Id. at 2283 ; see People v. Olah, 300 N.Y. 96, 89 N.E.2d 329 (1949) (even if defendant had stolen a thousand dollar gold coin, a conviction under a New Jersey statute criminalizing theft of goods worth $20 or more is not a "a crime which, if committed within [New York], would be a...