08-3859-cr
United States v. Smith

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12 th day of May, two thousand ten.

PRESENT:         ROBERT D. SACK,
                 REENA RAGGI,
                 PETER W. HALL,
                         Circuit Judges.
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UNITED STATES OF AMERICA,
                         Appellee,

                     v.                                              No. 08-3859-cr

ODIS LAMAR SMITH,
                         Defendant-Appellant.
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APPEARING FOR APPELLANT:                          MARK D. HOSKEN (Jay S. Ovsiovitch, on the
                                                  brief), Federal Public Defender’s Office, Western
                                                  District of New York, Rochester, New York.

APPEARING FOR APPELLEE:                           JOSEPH J. KARASZEWSKI, Assistant United
                                                  States Attorney, for Kathleen M. Mehltretter,
                                                  Acting United States Attorney for the Western
                                                  District of New York, Buffalo, New York.

          Appeal from the United States District Court for the Western District of New York

(Charles J. Siragusa, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on August 4, 2008, is AFFIRMED in part and

VACATED in part and the case is REMANDED for further proceedings.

       Defendant Odis Lamar Smith pleaded guilty to possession with intent to distribute and

distribution of 50 grams or more of cocaine base, see 21 U.S.C. § 841(a)(1), and possession

of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1). Smith

contends that his 240-month prison sentence is procedurally unreasonable because the district

court (1) ordered that prison terms of 180 months on the narcotics count and 60 months on

the firearms count run consecutively and (2) sentenced him as a career offender based in part

on his 1995 New York state adjudication as a “youthful offender.” We assume familiarity

with the facts and procedural history, which we reference only as necessary to explain our

decision.

       1.     The Imposition of Consecutive Sentences Was Not Required

       Title 18 U.S.C. § 924(c)(1)(A) criminalizes the use or carrying of a firearm during and

in relation to a crime of violence or a drug trafficking crime and imposes specified mandatory

minimum terms of incarceration in addition to the punishment provided for the underlying

crime “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this

subsection or by any other provision of law.” In United States v. Whitley, 529 F.3d 150 (2d

Cir. 2008), we interpreted this “except” clause to mean that a mandatory minimum sentence

prescribed under § 924(c) need not run consecutively to any greater mandatory minimum



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sentence. See id. at 153. In United States v. Williams, 558 F.3d 166 (2d Cir. 2009), we

extended Whitley, holding that a district court’s contrary interpretation of § 924(c)

constituted plain error. See id. at 169 n.2, 176.

       Here, ruling before Whitley and Williams, the district court concluded that Smith’s

mandatory minimum sentence of 60 months’ incarceration on his § 924(c) conviction must

run consecutively to his sentence on his narcotics conviction under 21 U.S.C. § 841(a), even

though the latter conviction carried a mandatory minimum of 120 months’ imprisonment.

See 21 U.S.C. § 841(b)(1)(A). This ruling, though not objected to below, was plain error

requiring a remand for resentencing.1 See United States v. Williams, 558 F.3d at 170. In

resentencing Smith, the district court of course retains discretionary authority to impose a

consecutive sentence consistent with its responsibility under 18 U.S.C. § 3553. See United

States v. Whitley, 529 F.3d at 158.

       2.     The Guidelines Calculation Was Not an Abuse of Discretion

       Smith contends that the district court further erred by sentencing him as a “career

offender” under § 4B1.1 of the Sentencing Guidelines based in part on his 1995 adjudication



       1
          We are mindful that the United States has petitioned for a writ of certiorari in
Williams, see United States v. Williams, 558 F.3d 166 (2d Cir. 2009), petition for cert. filed,
78 U.S.L.W. 3254 (U.S. Oct. 20, 2009) (No. 09-466), and that the Supreme Court has in fact
granted certiorari in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert. granted, 130
S. Ct. 1284 (Jan. 25, 2010) (No. 09-479), and United States v. Gould, 329 F. App’x 569 (5th
Cir. 2009), cert. granted, 130 S. Ct. 1283 (Jan. 25, 2010) (No. 09-7073), which also address
mandatory consecutive sentencing under § 924(c). Nevertheless, in the absence of any
contrary authority from the Supreme Court, our existing precedents compel the conclusion
that the imposition of a mandatory consecutive sentence in the instant case was plain error.

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as a “youthful offender” under New York law. We review the district court’s interpretation

of the Sentencing Guidelines de novo, see United States v. Cuello, 357 F.3d 162, 164 (2d Cir.

2004), and its application of the Guidelines in a particular case for abuse of discretion, see

United States v. Parker, 577 F.3d 143, 147 (2d Cir. 2009).

       A defendant is a career offender if “(1) [he] was at least eighteen years old at the time

[he] committed the instant offense of conviction; (2) the instant offense of conviction is a

felony that is either a crime of violence or a controlled substance offense; and (3) [he] has

at least two prior felony convictions of either a crime of violence or a controlled substance

offense.” U.S.S.G. § 4B1.1(a). A “prior felony conviction” is defined as “a prior adult

federal or state conviction for an offense punishable by death or imprisonment for a term

exceeding one year.” Id. § 4B1.2 Application Note 1. “A conviction for an offense

committed prior to age eighteen is an adult conviction if it is classified as an adult conviction

under the laws of the jurisdiction in which the defendant was convicted.” Id. There is no

dispute that Smith satisfied the first two elements. The district court concluded that he

satisfied the third based on 1995 and 1997 state convictions for second-degree robbery.

       Because Smith was fourteen years old when he engaged in the conduct underlying the

1995 conviction, he was prosecuted as a “juvenile offender” under N.Y. Penal Law

§ 30.00(2), which permits a fourteen-year-old charged with second-degree robbery to be tried

as an adult. See also N.Y. Penal Law § 10.00(18) (defining “juvenile offender”); In re

Raymond G., 93 N.Y.2d 531, 536, 693 N.Y.S.2d 482, 488 (1999) (describing intent of



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legislature that “juvenile offenders will, as a general rule, be prosecuted as adults”). Further,

Smith’s conviction was vacated and replaced with a “youthful offender” adjudication. See

N.Y. Crim. Proc. Law § 720.35. Such “youthful offender” treatment is available to “juvenile

offenders” at the discretion of the sentencing court, see id. § 720.10; People v. Victor J., 283

A.D.2d 205, 206, 724 N.Y.S.2d 162, 163 (1st Dep’t 2001), and affords certain procedural

protections, see N.Y. Crim. Proc. Law § 720.35 (providing, inter alia, that record of youthful

offender adjudication must be sealed).        Smith was sentenced to one to three years’

incarceration, and he served one year in a secure facility operated by New York’s Division

of Youth.

       As Smith acknowledges, a youthful offender adjudication may constitute a prior

felony conviction for purposes of U.S.S.G. § 4B1.1. See United States v. Jones, 415 F.3d

256, 264 (2d Cir. 2005). Smith argues, however, that his 1995 youthful offender adjudication

was not an adult conviction because he did not serve his sentence in an adult correctional

facility. We disagree. To be sure, our decision in Jones took account of the facility in which

the defendant was incarcerated. See id. (“Thus, Jones’s 1993 youthful offender adjudications

should be deemed ‘adult convictions’ as Jones (1) pleaded guilty to both felony offenses in

an adult forum and (2) received and served a sentence of over one year in an adult prison for

each offense.”). But we have also explained that “[t]here is no set formula for determining

‘the substantive consequence of the criminal proceeding underlying the youthful offender

adjudication.’ The determination is a function of many variables, no single one of which is



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dispositive.” United States v. Jackson, 504 F.3d 250, 253 (2d Cir. 2007) (quoting United

States v. Jones, 415 F.3d at 264) (internal citation omitted); see also id. (“At no time in our

holding [in United States v. Sampson, 385 F.3d 183 (2d Cir. 2004)] did we suggest that a

district court must make a finding of fact on the issue of where a defendant served his

youthful offender sentence.”). Moreover, the Guidelines require only that a “prior felony

offense” be “punishable by . . . imprisonment for a term exceeding one year,” U.S.S.G.

§ 4B1.2 Application Note 1 (emphasis added); see also United States v. Carrillo, 991 F.2d

590, 593-94 (9th Cir. 1993) (rejecting argument that conviction resulting in commitment to

California Youth Authority was not adult conviction because “the language and the structure

of the Guidelines and commentary support the government’s interpretation that an ‘adult

sentence’ is any sentence imposed pursuant to an ‘adult conviction’”). Thus, we identify no

error in the district court’s interpretation of the Sentencing Guidelines.

       Nor do we detect abuse of discretion in the district court’s application of the

Sentencing Guidelines to Smith’s case. Smith’s 1995 conviction for second-degree robbery

was “classified as an adult conviction under the laws of the jurisdiction,” and was

“punishable by . . . imprisonment for a term exceeding one year.” U.S.S.G. § 4B1.2

Application Note 1. That Smith served his sentence in a youth facility pursuant to the

express requirement of state law, see N.Y. Penal Law § 70.20(4)(a), does not mitigate the

seriousness of his offense, particularly where that offense, like those underlying his second

and third convictions, involved a firearm.



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      We have considered Smith’s remaining contentions on appeal, and they are without

merit. Accordingly, the judgment of the district court is AFFIRMED in part and VACATED

in part and the case is REMANDED for resentencing consistent with this decision.

                          FOR THE COURT:
                          CATHERINE O’HAGAN WOLFE, Clerk of Court




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