United States v. Green, Docket No. 05-3830-cr (2d. Cir. March 13, 2007) (Kearse, Sotomayor, Parker). Here, the circuit accepted a defendant’s claim that the government might not have properly proven a recidivism enhancement – the six-level bump for having a prior drug trafficking conviction under U.S.S.G. § 2K2.1(a)(4)(A) .
In 1996, Michael Green was convicted of attempted criminal possession of a controlled substance in the third degree under N.Y. Penal Law §§ 110.00 & 220.16 (McKinney 1987). Section 220.16, the drug statute (§ 110.00 is the attempt statute), has multiple subsections; pertinent here are Subsection 1, which makes it a crime to possess a “narcotic drug with intent to sell it” and Subsection 12, which makes it a crime to possess more than one-half ounce of a narcotic drug. Subsection 1 triggers the enhancement under 2K2.1(a)(4)(A), because it involves the intent to distribute, but Subsection 12 does not. Green had pled guilty under an indictment that described conduct that would trigger Subsection 1, but there was no contemporaneous record describing which subsection he actually pled to. The committment order simply described the offense as “ATT CPCS 3.” A Certificate of Disposition generated in 2004 specified Subsection 1 but Green argued both that the certificate might not be accurate and that, under Shepard v. United States, 433 U.S. 13 (2005), the district court could not consider it at all. The district court rejected both arguments and imposed the enhancement.
The court of appeals disagreed with Green’s second argument. It noted that Shepard permits inquiries into the nature of a prior conviction by reference to charging document, plea agreement or colloquy, or “some comparable judicial record of this information.” A New York State Certificate of Disposition satisfies this last clause.
However, the court found merit in Green’s complaint as to the possible inaccuracy of the certificate. It noted that while such certificates are presumptive evidence of the facts they contain, the presumption is rebuttable. Significantly, the court described litigation in a state case, People v. Jamal Green (the opinion does not indicate whether Jamal Green and Michael Green are related), that revealed that if no subsection was entered into the computer at the time the defendant pled guilty, the state’s computers were automatically programmed to to indicate Subsection 1 when a subsequent certificate of disposition was produced.
Thus, here, the reference to Subsection 1 in Michael Green’s Certificate of Disposition could have been the result of this “default mode” during the “recording, inputting, or accessing” stages of the state’s record-keeping. If this occurred, “then the reference to [Subsection 1] … could not properly be taken at face value.” As a result, the court remanded the case to the district court for further proceedings, placing squarely on the government the burden of proving that the reference to Subsection 1 in the certificate was accurate, and not merely included by default.
This opinion is extremely important; far more than it might seem at first blush. There are many guideline recidivism enhancements that require proof that a prior conviction was of a particular type, and some of these enhancements are enormous, such as the “career offender” provision and the 16-level bump in § 2L1.2(b)(1)(A). The Green decisions (both this one and the state litigation alluded to by the court) show that indications on a rap sheet or other criminal history record of a conviction under any Subsection 1 might well be a default entry that is not provably accurate. Thus, in any case where this makes a difference, defense counsel should always demand that the government prove that the reference is accurate, and not a default. If the government cannot, then the defendant will avoid a major sentencing enhancement.
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