Wednesday, September 8th, 2021

Convictions for “actual and attempted Hobbs Act robbery” are crimes of violence under 18 U.S.C. § 924(c). And the imposition of 6 consecutive mandatory minimum prison sentences, totaling 115 years’ (based on the “stacking” of five § 924(c) convictions, running consecutively to a 10-year minimum drug sentence), doesn’t violate the Eighth Amendment. United States v.  Waite, No. 18-2651, __F.4th__, 2021 WL 3870712 (2d Cir. Aug. 31, 2021) (C.J.J. Cabranes, Raggi, Sullivan).

Waite was originally sentenced in 2011, principally to 125 years’ imprisonment based on five 924(c) counts and a drug conspiracy count. The Circuit vacated his original sentence (in 2016) because of an issue with the drug sentence. At the resentencing in March 2018, the district court subtracted 10 years from the original (20-year) drug sentence, making the new sentence 115 years, which was “the then-applicable mandatory minimum sentence for Waite’s counts of conviction”; his five § 924(c) sentences had to be “stacked” — i.e., made consecutive to each other for a total of 105 years — and the stacked 924(c) sentences had to be consecutive to the 10-year drug sentence. A few months after the resentencing, however, the First Step Act of 2018 (“FSA”) eliminated the “stacking” requirement for § 924(c) sentences.

On this appeal, Waite argued that: (1) four of his (five) § 924(c) convictions are invalid under United States v. Davis, 139 S.Ct.  2319 (2019), because the predicate offense Hobbs Act robberies aren’t qualifying crimes of violence; (2) his 115-year prison sentence violates the Eighth Amendment’s bar on cruel and unusual punishments in light of Congress’s passage of  § 403 of the FSA, eliminating mandatory “stacking”; and (3) in any event, his sentence should be vacated, and another resentencing ordered, to allow the district court to reconsider the sentence in view of the FSA, which was enacted a few months after the resentencing.  The Circuit rejected all arguments. Op at 3-4, 12-31.


The conviction and the original sentencing (in 2011)

In February 2008, Selbourne Waite was indicted, along with other members of a group known as the Dekalb Avenue Crew (“centered around Dekalb Avenue in the Bronx”).

A jury convicted Waite of several offenses, including “four completed and attempted robberies” consisting of “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[.]” Op at 6.  These four robberies were the predicate crimes of violence for “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.” Id.

Waite was also convicted of a narcotics conspiracy, under 21 U.S.C. § 846, and of a fifth § 924(c) count for the “use of a firearm in furtherance of [that] charged narcotics conspiracy[.]” Op. at 6.

On August 22, 2011, Waite was sentenced 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[.]” Op at 7.

First Appeal (2016)

In Waite’s first appeal, the narcotics sentence was vacated because the district court had found that the Fair Sentencing Act of 2010, Pub. 111-220, 124 Stat. 2372 (Aug. 3, 2010), didn’t apply to Waite because his offense pre-dated the 2010 Act, even though he was sentenced after its enactment.  “Accordingly, the district court determined that Waite’s narcotics conspiracy conviction had a mandatory minimum sentence of 20 years instead of 10 years.” Op at 8. But in 2012, Dorsey v. United States, 567 U.S. 26 (2012) held that the Fair Sentencing Act applied to sentences imposed after August 3, 2010. So, in August 2016, the Circuit “affirmed his convictions and sentence in all respects except one: …. [it] remanded for resentencing in light of Dorsey.” Op at 8.

Resentencing in March 2018; the FSA is enacted December 2018

“On March 1, 2018, the district court (now Loretta A. Preska, J.) resentenced Waite to a term of 115 years’ imprisonment.” Op at 8. It “imposed a 10-year mandatory minimum term of imprisonment for Waite’s narcotics conspiracy conviction[,]” consistent with Dorsey. “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.” op at 9. d. at 22–23.

Waite appealed for a second time. But first, there was an issue about the timeliness of the notice of appeal.

I. Timeliness of the notice of appeal

Waite, acting pro se, made a small mistake in addressing the notice of appeal, and the post office returned it to him. By the time he re-mailed the notice using the correct address, he was a few months late.

“Waite’s notice of appeal was dated March 3, 2018 – within 14 days of his judgment of conviction filed on March 2, 2018 – but it was not filed in the district court until September 5, 2018, because Waite had originally mailed the notice of appeal from prison to the incorrect address.” Op at 12; see Fed.R.App.P. 4(b) (criminal defendant’s notice of appeal must be filed in district court “within 14 days after … entry of either the judgment or the order being appealed”). He had mailed it to “1500 Pearl Street,” rather than to 500 Pearl Street, and it was returned “to his designated long-term facility” on August 14, 2018. Op at 9 (emphasis added).

Under the “prison mailbox rule,” a pro se defendant’s notice of appeal is deemed “filed” at the moment of delivery to prison authorities for forwarding to the district court. Op at 13 (citing Fed.R.App.P. 4(c)(1)).  But the Circuit has not yet decided whether the rule applies when “the untimely filing is due to the prisoner’s use of an incorrect mailing address, rather than to delays in a prison’s mail system beyond a prisoner’s control.” Op at 13. It did, however, cite several cases in which other courts had concluded that the prison mailbox rule didn’t apply when a delay wasn’t attributable to prison officials. Id.

But the Circuit concluded it didn’t need to decide the issue “because the government has affirmatively waived reliance on untimeliness as a basis for dismissing Waite’s appeal.” Op at 13, 14.  It noted that “‘Rule 4(b) is mandatory and inflexible’ if the government properly objects to the untimeliness of an appeal.” Op at 14 (quoting United States v. Frias, 521 F.3d 229, 234 (2d Cir. 2008).  However, because Rule 4(b) isn’t a jurisdictional bar (to considering an appellant’s claims), the Circuit exercised its discretion to review the merits “[i]n light of the government’s choice to not object to Waite’s appeal on the basis of untimeliness.” Op at 14.

II. “[A]ttempted Hobbs Act robbery and [] aiding and abetting an attempted or successful Hobbs Act robbery” are crimes of violence under § 924(c).

The circuit rejects Waite’s Davis challenges to convictions for attempted Hobbs Act robbery and aiding and abetting an attempted Hobbs Act robbery, saying “Waite’s Davis challenges fail because we recently confronted and rejected these same arguments in United States v. McCoy, 995 F.3d 32 (2d Cir. 2021).” Op at 15; id. at 14-16.

III. The “stacking” of the minimum sentences for several § 924(c) convictions — resulting in 105 years of the 115-year sentence — isn’t an Eighth Amendment violation, even though the passage of the FSA (in 2018) eliminated the mandatory stacking of § 924(c) sentences.

Waite argued “that the passage of the First Step Act shows that his sentence is disproportionately long as compared to the severity of his crimes of conviction, since the First Step Act ‘represents the nation’s trend toward more humane sentences for [§] 924(c) offenses’.”  Op at 16-17. Section 403(a) of the FSA eliminated “stacking” — the mandate that all § 924(c) convictions be imposed consecutively to each other and to any other sentence.

In rejecting Waite’s argument, the Circuit stated that, although it agrees “that the First Step Act marked a sea change in federal sentencing practices, the passage of that Act alone does not render Waite’s sentence cruel and unusual within the meaning of the Eighth Amendment.” Op at 17.

The Circuit reviewed the legal standards for Eighth Amendment jurisprudence. Op at 17-24. And on the question of whether the sentence could be deemed grossly disproportionate to the crime, and therefore cruel and unusual, it stated that “‘[l]engthy prison sentences, even those that exceed any conceivable life expectancy of a convicted defendant, do not violate the Eighth Amendment’s prohibition against cruel and unusual punishment[s] when based on … statutorily mandated consecutive terms.” Op at 19 (quoting United States v. Yousef, 327 F.3d 56, 63 (2d Cir. 2003). “This is because “statutorily mandated sentences represent not the judgment of a single judge but the collective wisdom of the … Legislature and, as a consequence, the … citizenry.”Op at 19 (quoting United States v. Reingold, 731 F.3d 204, 220 (2d Cir. 2013)). So the enactment of the FSA didn’t render cruel and unusual the 115-year sentence.

IV. The Circuit declines to remand for a new sentencing to allow the district court that resentenced that resentenced Waite in March 2018 to have the benefit of the FSA, which was enacted in December of that year.

Waite argued that, “even if his conviction and sentence are legally sound,” the Circuit should nonetheless remand for resentencing so that he may take advantage of the FSA’s amendments to § 924(c) — that eliminated stacking — to allow the district court an opportunity to reconsider its sentence de novo in light of the FSA. Op at 24.

The Circuit distinguished this case from other cases in which it had remanded because there was “a recent development in the law that prompted the [Court] to doubt whether the district court was fully aware of its sentencing discretion.” Op at 25; id. at 25-32.

On an ominous note, the Circuit states that “it is an open question in this Circuit whether the First Step Act’s amendments to § 924(c) ‘stacking’ apply when a defendant is resentenced after a remand from this Court.” Op at 29 (citing U.S. v. Eldridge, 2 F.4th 27, 41 n.17 (2d Cir. 2021) (collecting cases showing the circuits are divided on that question)).



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Categories: 924(c), Davis, Eighth Amendment, Johnson
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