Saturday, September 27th, 2008

Savage Love

United States v. Savage, No. 06-4097-cr (2d Cir. September 18, 2008) (Pooler, Livingston, CJJ, Kaplan, DJ)

Lavon Savage pled guilty to possessing a gun. At issue was whether his offense level should be enhanced for a prior “controlled substance offense,” based on his conviction under Connecticut General Statute § 21a-277(b), which makes it a crime to, inter alia, sell a controlled substance. Connecticut defines the “sale” of a controlled substance as “any form of delivery, which includes barer, exchange or gift, or offer therefore.” This definition is broader than the guideline definition of “controlled substance offense,” which does not include offenses involving the mere offer of a controlled substance.

The circuit concluded that Savage should not have received the enhancement. It agreed that the Connecticut statute criminalizes conduct – an offer to furnish drugs – that falls outside the guideline definition of “controlled substance offense.” Moreover, under the limitations of the “categorical” approach to recidivism enhancement, the government failed to show that Savage’s conviction “necessarily” rested on a fact that would put it within the guideline definition.

First, Savage entered an Alford plea, and thus did not confirm the factual basis for the plea. Given this, the government could not “rely on any factual admissions during the plea colloquy to establish the predicate nature of Savage’s conviction.” Nor was there anything else in the colloquy that would narrow the charge. Although the colloquy indicated that Savage was pleading guilty to a “sale,” that did not suffice, since a sale includes an offer. And, while Savage himself mentioned that “someone else gave” the drugs to the undercover officer, this did not establish that Savage understood he was charged specifically with exchanging drugs for money. All Savage was doing was contesting the state’s version of the facts. His “offhand remarks” did not “define the nature of the conviction” or establish the specific theory of his culpability.

Finally, the government conceded that charging document, which simply indicated that Savage pled to “Sale of a Controlled Substance … in violation of” the statute described above, did not narrow the charge to include only conduct that would fall within the guideline definition.

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