     06-4551-cr
     USA v. Parnell
 1
 2                             UNITED STATES COURT OF APPEALS
 3                                 FOR THE SECOND CIRCUIT
 4
 5                                          _______________
 6
 7                                         August Term, 2007
 8
 9   (Argued: March 17, 2008                                                Decided: April 23, 2008)
10
11                                       Docket No. 06-4551-cr
12
13                                          _______________
14
15                                    UNITED STATES OF AMERICA ,
16
17                                                                                          Appellee,
18
19                                                  v.
20
21                                         DONALD PARNELL,
22
23                                                                              Defendant-Appellant.
24                                          _______________
25
26   Before:
27                             WINTER, STRAUB, and SACK, Circuit Judges.
28
29                                          _______________
30
31           On appeal from a judgment of conviction and sentence, Defendant-Appellant Donald
32   Parnell argues that the District Court erred in including his youthful offender adjudication for
33   attempted second degree burglary in New York State court to determine that he was a Career
34   Offender under U.S.S.G. § 4B1.1. Because we find that the Guidelines are clear that convictions
35   received for offenses committed when defendant is eighteen or older qualify as adult convictions
36   and thus may be counted as “prior felony convictions” under the Career Offender Guidelines, we
37   reject Parnell’s argument that the express exemption of “set aside” convictions in 18 U.S.C. §
38   921(a)(20) from the Armed Career Criminal Act’s sentence-enhancement provision should be
39   imported into the Guidelines, and we affirm the judgment of the District Court.
40                                            _______________
41
42

                                                    1
 1   MARK D. FUNK, Rochester, NY, for Defendant-Appellant.
 2
 3   STEPHAN J. BACZYNSKI, Assistant United States Attorney (Terrance P. Flynn, United States
 4   Attorney, on the brief), United States Attorney’s Office for the Western District of New York,
 5   Buffalo, NY, for Appellee.
 6
 7                                           _______________
 8
 9   Per Curiam:
10
11
12          Defendant-Appellant Donald Parnell appeals from an amended judgment of the United

13   States District Court for the Western District of New York (David G. Larimer, Judge), entered on

14   September 27, 2006, sentencing him on a guilty plea principally to 180 months’ imprisonment,

15   for one count of possessing a firearm in furtherance of a drug trafficking offense, in violation of

16   18 U.S.C. § 924(c)(1)(A)(i), and one count of being a felon in possession of a firearm, in

17   violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). For the reasons that follow, we affirm the District

18   Court’s judgment.

19                                            BACKGROUND

20          On June 2, 2004, Parnell was charged by superseding information and pled guilty to

21   possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c),

22   and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was

23   charged with being a felon in possession of a firearm because of two previous New York State

24   convictions, for rape in the second degree and burglary in the third degree, both felonies.

25          Parnell pled guilty pursuant to a plea agreement that contemplated 90 months’

26   imprisonment, and did not include enhancements under the Armed Career Criminal Act, see 18

27   U.S.C. § 924(e) (“ACCA”), or the Career Offender Sentencing Guideline, see U.S. Sentencing



                                                      2
 1   Guidelines Manual (“U.S.S.G.”) § 4B1.1. However, when the Probation Department submitted

 2   its Presentence Investigation Report (“PSR”) to the District Court, the PSR recommended that

 3   Parnell be sentenced as an Armed Career Criminal under the ACCA and as a Career Offender,

 4   due to the convictions for second degree rape and third degree burglary, as well as a newly

 5   discovered conviction for attempted second degree burglary.1 Based on the three prior offenses

 6   and the recommended enhancements, Parnell’s Guidelines range was 262 to 327 months.

 7          The third and newly discovered offense of attempted second degree burglary was

 8   committed on December 24, 1984, when Parnell was eighteen years old. He was convicted on

 9   February 28, 1985, and on April 11, 1985, he received an adjudication as a youthful offender for

10   the conviction. Pursuant to New York’s Penal Law, attempted second degree burglary is a class

11   D felony, punishable by up to seven years’ imprisonment. See N.Y. Penal Law §§ 70.00, 110.00,

12   110.05[5], 140.25[2]. Parnell was sentenced to five years of probation for the offense, but was

13   later found guilty of a violation of probation and sentenced to 1 1/3 to 4 years.

14          Upon being informed of the extent of Parnell’s criminal history and the resulting

15   Guidelines range, the District Court informed Parnell that it could not accept the 90 month

16   sentence as specified in the plea agreement. The District Court offered Parnell the option of

17   withdrawing his guilty plea. However, Parnell indicated that he did not wish to do so.

18          The District Court proceeded to sentence Parnell to 240 months’ imprisonment, which

19   included 180 months’ imprisonment, the statutory minimum for being a felon in possession of a


     1
             The Presentence Investigation Report and supplemental memorandum prepared by the
     Probation Officer were filed under seal. Insofar as we discuss information derived from sealed
     documents, those documents are unsealed to the limited extent referenced in this opinion,
     although the full documents shall remain physically withheld from public review. See United
     States v. Verkhoglyad, 516 F.3d 122, 124 n.2 (2d Cir. 2008).

                                                       3
 1   firearm pursuant to the ACCA, see 18 U.S.C. § 924(e)(1), and 60 months’ imprisonment, the

 2   statutory minimum, for possessing a firearm in furtherance of a drug trafficking offense, to be

 3   served consecutively, see 18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(D)(ii). In sentencing Parnell to the

 4   statutory minimum, the District Court departed downward from the Guidelines range, finding

 5   that the range overrepresented the seriousness of Parnell’s criminal history.

 6          Parnell appealed his original sentence. But while the appeal was pending, a district court

 7   judge in the Southern District of New York found that youthful offender adjudications do not

 8   qualify as “crime[s] punishable by imprisonment for a term exceeding one year” under the

 9   ACCA. United States v. Fernandez, 390 F. Supp. 2d 277 (S.D.N.Y. 2005). Based on

10   Fernandez, Parnell and the government agreed that the appeal would be withdrawn and that the

11   matter would be remanded to the District Court for a determination as to whether Parnell should

12   be resentenced. On September 18, 2006, the District Court agreed to resentence Parnell and

13   decided that in resentencing him it would not consider Parnell an Armed Career Criminal.

14   Nonetheless, the District Court held that the second degree rape conviction and the youthful

15   offender adjudication for attempted second degree burglary were “crimes of violence” pursuant

16   to U.S.S.G. § 4B1.2 and that Parnell was a Career Offender, which resulted in the same

17   Guidelines range as in the original sentencing.2 The District Court again departed downward

18   from the Guidelines based on a determination that the range overrepresented the seriousness of

19   Parnell’s criminal history and resentenced Parnell to the statutory maximum of 120 months’



     2
             At sentencing, the government took the position that the New York State conviction for
     third degree burglary should not be considered for Career Offender purposes, and the District
     Court declined to include that conviction in the Career Offender calculation. Thus, we do not
     consider it here.

                                                      4
 1   imprisonment for being a felon in possession of a firearm, see 18 U.S.C. § 924(a)(2), and the

 2   statutory minimum of 60 months’ imprisonment for possessing a firearm in furtherance of a drug

 3   trafficking offense, to be served consecutively, see 18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(D)(ii).

 4   Parnell objected to the inclusion of the youthful offender adjudication in the Career Offender

 5   calculation, and this appeal timely followed.

 6                                             DISCUSSION

 7          Parnell argues that the District Court erred in finding that he was a Career Offender under

 8   the Sentencing Guidelines, see U.S.S.G. §§ 4B1.1, 4B1.2, because the youthful offender

 9   adjudication he received for the conviction for attempted second degree burglary in New York

10   State court “set aside” his conviction. Convictions that are “set aside” are expressly exempted

11   from the calculation of defendant’s previous convictions under the ACCA, pursuant to the

12   Firearms Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (May 19, 1986), codified at

13   18 U.S.C. § 921, et seq. See 18 U.S.C. § 921(a)(20) (“Any conviction which has been expunged,

14   or set aside or for which a person has been pardoned or has had civil rights restored shall not be

15   considered a conviction for purposes of this chapter . . . .”); Logan v. United States, 128 S. Ct.

16   475, 479 (2007) (“For ACCA sentence-enhancement purposes, a prior conviction may be

17   disregarded if the conviction ‘has been expunged, or set aside,’ or the offender ‘has been

18   pardoned or has had civil rights restored.’” (citing § 921(a)(20))). In Fernandez, a district court

19   judge found that a youthful offender adjudication does not qualify as “‘a violent felony’ under 18

20   U.S.C. § 924(e)(1), as those terms are defined in 18 U.S.C. § 924(e)(2) and 18 U.S.C. §

21   921(a)(20)” because the youthful offender adjudication “sets aside” the underlying conviction.

22   390 F. Supp. 2d at 280. Parnell seeks to have us apply the reasoning of Fernandez to the


                                                       5
 1   Guidelines. “Violent felonies” under the ACCA and “crimes of violence” under the Guidelines

 2   are both defined as any offense or crime “punishable by imprisonment for a term exceeding one

 3   year,” see 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2(a). Thus, Parnell argues that because the

 4   definitions of “crime of violence” and “violent felony” are similar, and 18 U.S.C. § 921(a)(20)

 5   exempts “set aside” convictions from ACCA sentence-enhancement purposes, youthful offender

 6   adjudications which “set aside” convictions should also be exempted from the calculation of

 7   “crimes of violence” under the Guidelines.

 8          We review a district court’s sentence for procedural and substantive reasonableness, a

 9   standard “akin to review for abuse of discretion.” United States v. Fernandez, 443 F.3d 19, 27

10   (2d Cir.), cert. denied, 127 S. Ct. 192 (2006); see also Gall v. United States, 128 S. Ct. 586, 597

11   (2007). In reviewing for procedural reasonableness, an appellate court must “ensure that the

12   district court committed no significant procedural error, such as failing to calculate (or

13   improperly calculating) the Guidelines range.” Gall, 128 S. Ct. at 597. We review a district

14   court’s interpretation of the Sentencing Guidelines de novo, and apply the clearly erroneous

15   standard when evaluating a district court’s findings of fact. See United States v. Richardson, 516

16   F.3d 145, 152 (2d Cir. 2008).

17          Assuming that Parnell’s youthful offender adjudication may be disregarded for sentence-

18   enhancement purposes under the ACCA, we reject Parnell’s argument that we should import the

19   “set aside” portion of 18 U.S.C. § 921(a)(20) into U.S.S.G. § 4B1.1. We have previously relied

20   on authorities interpreting the ACCA’s definition of a “violent felony,” see 18 U.S.C. §

21   924(e)(2)(B), to interpret the Guidelines’ definition of “crime of violence,” see U.S.S.G. §

22   4B1.2(a). See United States v. Brown, 514 F.3d 256, 268-69 (2d Cir. 2008). However, we did so


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 1   because those provisions are substantially similar, making “‘authority interpreting one phrase . . .

 2   persuasive in interpreting the other phrase.’”3 Id. at 268 (quoting United States v. Palmer, 68

 3   F.3d 52, 55 (2d Cir. 1995)). Thus we relied on a case which held that attempted third degree

 4   burglary of a building is a “violent felony” under the ACCA, to hold that third degree burglary of

 5   a non-dwelling could be considered a “crime of violence” under the Guidelines. See id. at 267-

 6   68 (relying on United States v. Andrello, 9 F.3d 247 (2d Cir. 1993) (per curiam), cert denied, 510

 7   U.S. 1137 (1994)); see also United States v. Jackson, 301 F.3d 59, 62 (2d Cir. 2002), cert.

 8   denied, 539 U.S. 952 (2003).

 9          Here, the statutory provision Parnell urges us to apply, 18 U.S.C. § 921(a)(20), however,

10   is inconsistent with the plain language of the relevant Guideline. Thus we do not find it to be

11   persuasive for interpreting the Guidelines or appropriate to import it into the Guidelines. The

12   statutory definition applicable to the ACCA purposefully exempts convictions that have been

     3
            Under the ACCA,

                    [T]he term “violent felony” means any crime punishable by imprisonment for a
                    term exceeding one year, or any act of juvenile delinquency involving the use or
                    carrying of a firearm, knife, or destructive device that would be punishable by
                    imprisonment for such term if committed by an adult, that-- (i) has as an element
                    the use, attempted use, or threatened use of physical force against the person of
                    another; or (ii) is burglary, arson, or extortion, involves use of explosives, or
                    otherwise involves conduct that presents a serious potential risk of physical injury
                    to another.

            18 U.S.C. § 924(e)(2)(B). Under the Guidelines:

                    The term “crime of violence” means any offense under federal or state law,
                    punishable by imprisonment for a term exceeding one year, that-- (1) has as an
                    element the use, attempted use, or threatened use of physical force against the
                    person of another, or (2) is burglary of a dwelling, arson, or extortion, involves
                    use of explosives, or otherwise involves conduct that presents a serious potential
                    risk of physical injury to another.

            U.S.S.G. § 4B1.2(a).

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 1   “set aside” from the calculation of a defendant’s previous convictions. 18 U.S.C. § 921(a)(20)

 2   (“Any conviction which has been expunged, or set aside . . . shall not be considered a conviction

 3   for purposes of this chapter. . . . “). See Logan, 128 S. Ct. at 485 (“Congress . . . sought to defer

 4   to a State’s dispensation relieving an offender from disabling effects of a conviction” by enacting

 5   § 921(a)(20).). In contrast, U.S.S.G. § 4B1.1 does not exempt youthful offender adjudications

 6   that “set aside” a conviction from the calculation of prior felony convictions. Instead, the

 7   Guidelines are clear that an offense committed at age eighteen or older is a prior felony

 8   conviction for purposes of the Career Offender Guideline if it is “punishable by . . .

 9   imprisonment for a term exceeding one year, regardless of whether such offense is specifically

10   designated as a felony and regardless of the actual sentence imposed.” U.S.S.G. § 4B1.2, cmt.

11   n.1 (providing definitions of terms used in section 4B1.1). Although the Guidelines are no

12   longer mandatory, “district courts remain statutorily obliged to calculate Guidelines ranges in the

13   same manner as before Booker,” considering the applicable Guidelines and their commentary, as

14   well as relevant policy statements. United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005),

15   cert. denied, 547 U.S. 1060 (2006); see also Stinson v. United States, 508 U.S. 36, 38 (1993)

16   (“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative

17   unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly

18   erroneous reading of, that guideline.”); United States v. Brady, 417 F.3d 326, 332 (2d Cir. 2005).

19   Because the Guidelines are clear, the District Court did not err in giving them their plain meaning

20   in order to calculate the Guidelines range. See United States v. Sloley, 464 F.3d 355, 359 (2d Cir.

21   2006) (“We [give] the Guidelines language its plain meaning and force . . . .”).

22           Applying the clear language of U.S.S.G. §§ 4B.1.1, 4B1.2, and the accompanying


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 1   Commentary, we held that two youthful offender adjudications for crimes committed before the

 2   defendant turned eighteen qualified as “prior felony convictions,” for purposes of the Career

 3   Offender Guideline, because, after examining the substance of the proceedings, they could be

 4   considered “classified” as adult convictions. United States v. Jones, 415 F.3d 256, 263-64 (2d

 5   Cir. 2005) (applying U.S.S.G. § 4B1.2, cmt. n.1). We have also held that a district court may

 6   consider youthful offender adjudications when calculating a defendant’s criminal history

 7   category under U.S.S.G. § 4A1.1, see United States v. Driskell, 277 F.3d 150, 154 (2d Cir.), cert

 8   denied, 537 U.S. 865 (2002), the base offense level under U.S.S.G. § 2L1.2, see United States v.

 9   Reinoso, 350 F.3d 51, 54 (2d Cir. 2003), and the base offense level under U.S.S.G. § 2K2.1, see

10   United States v. Cuello, 357 F.3d 162, 168-69 (2d Cir.), cert. denied, 543 U.S. 890 (2004).

11   Therefore, we find that it is clear that the Guidelines allow a District Court to consider youthful

12   offender adjudications when calculating the number of “prior felony convictions of either a crime

13   of violence or a controlled substance offense.” U.S.S.G. § 4B1.1.

14          In this case, Parnell was eighteen when he committed the offense that resulted in a

15   conviction for attempted second degree burglary, for which he was later adjudicated as a youthful

16   offender. Because that conviction was punishable by up to seven years’ imprisonment, see

17   N.Y.P.L. §§ 70.00, 110.05[5], it clearly qualifies as a “prior felony conviction,” that is an “adult

18   conviction” “punishable by . . . imprisonment for a term exceeding one year.” U.S.S.G. §§

19   4B1.1, 4B1.2, cmt. n.1. Thus, the District Court did not err when it included the youthful

20   offender adjudication in Parnell’s Career Offender calculation.

21          For these reasons, we AFFIRM the judgment of the District Court.




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