It Depends Upon What the Meaning of the Word “Is” Is

United States v. Darden, No. 06-4567-cr (2d Cir. August 15, 2008) (Cardamone, Pooler, CJJ, Keenan, DJ)

Under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), a felon-in-possession of a firearm or ammunition faces a fifteen-year mandatory minimum sentence (the maximum is life) if he has at least three prior convictions for felony crimes of violence and/or “serious” drug offenses. The statute defines “serious” drug offenses as those for which the maximum penalty that “is prescribed” is ten years or more.

These four consolidated appeals all arose from the application of this definition to defendants whose past convictions were for New York State Class C or Class B (first offender) drug felonies. Until 2005, the maximum penalty for such offenses was more than ten years. Effective January of 2005, the state reduced the maximum penalty for such offenseses to less than ten years, but the amelioration is not retroactive.

Thus, when each of these four defendants was sentenced in his federal case, the maximum sentence that “is prescribed” for at least one of his ACCA predicates offenses was at that time less than ten years, although for those particular defendants’ own offenses that was not true due to the non-retroactivity of the amelioration. Nevertheless, the appellate court held that federal sentencing courts should look to the state’s current sentencing laws in deciding whether a past drug offense can be an ACCA predicate. “The present tense signals that sentencing courts should examine the state’s current sentencing scheme.”

Nor does the fact that the state-law amelioration is not retroactive alter the analysis. The higher sentences that these defendants were exposed to was solely a function of the date of their conduct, and not of its seriousness. Thus, “in punishing the earlier timed nature of the offense more severely,” New York was not “meeting out extra punishment for the drug-trafficking offense of conviction” itself, but only for its timing. Since the “timing of the offense conduct is not part of the ofense of conviction to which the maximum term is tied for the purposes of the ACCA,” the non-retroactivity of the amelioration is immaterial.