05-5928-cr
United States v. Kashawn Jackson



                             UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                              August Term, 2007

(Argued: Sept. 20, 2007                                                          Decided: October 5, 2007)
                                           Docket No. 05-5928-cr

UNITED STATES OF AMERICA,

                         Appellee,

        v.

KASHAWN JACKSON ,

                Defendant-Appellant.

Before MINER and CABRANES, Circuit Judges, and CROTTY,1 District Judge.

        The United States District Court for the Eastern District of New York (Thomas C. Platt,
Judge) sentenced defendant to ten-years’ imprisonment upon determining that his 2001 youthful
offender adjudication constituted a “prior conviction for a felony drug offense” for purposes of
21 U.S.C. § 841(b)(1)(B). On appeal, defendant contends, inter alia, that it was improper for the
District Court to draw this conclusion without undertaking any fact-finding as to whether he
served his youthful offender sentence in a juvenile or adult facility. We hold that our precedent
does not require a district court, when deciding whether or not a prior conviction triggers the
mandatory minimum provision of 21 U.S.C. § 841(b)(1)(B), to consider the nature of the facility
in which the defendant served his prior sentence.
        AFFIRMED .

                Sally Wasserman, New York, NY, for Defendant-Appellant.
                Emily Berger, Assistant United States Attorney (Roslynn R. Mauskopf, United
                States Attorney, on the brief; Susan Corkery, Assistant United States Attorney, of
                counsel), Office of the United States Attorney for the Eastern District of New
                York, Brooklyn, NY, for Appellee.

PER CURIAM :

    1
      The H onorable Paul A. Crotty of the United States District Court for the Southern District of New York,
    sitting by designation.


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        Defendant-appellant Kashawn Jackson (“Jackson”) appeals the October 26, 2005
judgment of conviction entered against him and the sentence imposed upon him by the United
States District Court for the Eastern District of New York (Thomas C. Platt, Judge), which
sentenced him as a prior felon to a term of ten years. Jackson argues that the District Court erred
in concluding that his New York youthful offender adjudication was “a prior conviction for a
felony drug offense [that] has become final” within the meaning of 21 U.S.C. § 841(b)(1)(B) and
thereby subjecting him to a ten-year mandatory minimum sentence. Jackson contends that in
reaching this conclusion the District Court failed to consider whether he served his youthful
offender sentence in a juvenile or adult facility as allegedly required by our holding in United
States. v. Sampson, 385 F.3d 183, 195 (2d Cir. 2004). We hold that our precedent does not
require a district court to consider, when deciding whether or not a prior conviction triggers the
mandatory minimum provisions of 21 U.S.C. § 841(b)(1)(A)–(B), in what type of facility the
defendant served his prior sentence. We affirm.

        On May 9, 2005, Jackson pleaded guilty to a single-count indictment charging him with
possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii). Before the plea, the government had filed an information pursuant
to 21 U.S.C. § 851(a), notifying the court that Jackson had been convicted by the Nassau County
Court in 2001 of a Class D felony: criminal sale of a controlled substance in the fifth degree.
Prior to the imposition of six months’ imprisonment, Jackson was adjudicated a youthful
offender. This required the state court to “direct that the conviction be deemed vacated and
replaced by a youthful offender finding.” N.Y. Crim. Proc. Law (“CPL”) § 720.20(3).2 The
consequences of that conviction and the youthful offender status were discussed at length during
the May 9, 2005 hearing before the District Court.

       At his October 21, 2005 sentencing, Jackson again questioned whether his youthful
offender conviction should constitute a prior felony. His chief contention at that time was that

    2
      Under N ew York law, a 16-to-18 year-old offender, convicted as an adult, may be adjudicated a youthful
    offender, thereby vacating and replacing his conviction with a youthful offender finding. CPL §§
    720 .10(1)-(2), 720 .20(1)-(3); see also United States v. Jones, 415 F.3d 25 6, 260 (2d C ir. 2005). Youthful
    offend er status affords the defendant certain benefits, such as privacy pro tections. CP L § 7 20.3 5(2); see
    Un ited States v. D riskell, 277 F.3d 15 0, 155-56 (2d Cir. 2002). Youthful offender adjudication is “meant
    to provide a second chance,” Sampson, 385 F.3d at 195 (2 d Cir. 2004) (quotation omitted), and
    recognizes the young defendant’s “potential for rehabilitation,” Driskell, 277 F.3d at 155. H owever,
    youthful offender findings do not excuse re cidivists fro m enh anced sentencing in the federal co urts merely
    because the ir prior offenses are no t deem ed “convictions” under state law. Sampson, 385 F.3d at 195.
    W e have held that district courts may consider youthful offender adjudications as predicate prior felony
    convictions for the imposition of increased sentences under sections of the United States Sentencing
    Guidelines and other statutes. See Jones, 415 F.3d at 262-64 (allowing the use of youthful offender
    adjudicatio n to calculate b ase offense level under U.S.S.G . §§ 4 B1 .1); Un ited States v. C uello, 357 F.3d
    162 , 168 -69 (2 d Cir. 200 4) (same un der U .S.S.G . § 2K 2.1(a)); United States v. Reinoso, 350 F.3d 51, 53-
    55 (2d C ir. 200 3) (same un der U .S.S.G . § 2L1.2); Driskell, 277 F.3d at 154-58 (to calculate criminal
    history ca tegory under U.S .S.G. § 4A 1.1); United States v. Matthews, 205 F.3d 54 4, 548-49 (2d Cir.
    200 0) (same); see also Sampson, 385 F.3d at 195 (to establish prior “felony drug offense” pursuant to 28
    U.S.C. § 8 41(b)).


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the District Court had discretion to choose not to use a youthful offender conviction as the basis
for a sentencing enhancement pursuant to 21 U.S.C. § 841(b)(1)(B). The court concluded that it
lacked such discretion and imposed the mandatory minimum sentence of ten years.

        Jackson now argues that this court’s holding in Sampson mandated a six-factor test that a
sentencing court must apply in evaluating whether a New York youthful offender adjudication
qualifies as a prior final conviction under Section 841(b)(1). He contends that the District Court
failed to make a finding of fact with regard to one of those factors, the type of facility in which
Jackson was incarcerated, and therefore erred in applying the mandatory minimum. We review
this determination de novo. See, e.g., United States v. Lewis, 386 F.3d 475, 479 (2d Cir. 2004).

        The issue is whether a prior conviction that is “replaced by a youthful offender finding,”
CPL § 720.20(3), qualifies as a “felony drug offense.” 21 U.S.C. § 841(b). A “felony drug
offense” is “an offense that is punishable by imprisonment for more than one year under any law
of the United States or of a State or foreign country that prohibits or restricts conduct relating to
narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. §
802(44).

        In Sampson, we considered whether a conviction replaced by a youthful offender
adjudication could ever qualify as a “final” felony drug conviction under Section 841(b)(1). 385
F.3d at 194-95. We held that the district court appropriately used the defendant’s prior
conviction, notwithstanding his youthful offender adjudication, to increase the defendant’s
statutory mandatory minimum, because:

       as a result of the criminal conduct underlying [defendant’s] youthful offender
       adjudication, he was [i] tried and convicted [ii] in an adult court [iii] of adult drug
       “offense[s] . . . [iv] punishable by imprisonment for more than one year,” 21
       U.S.C. § 802(44); [v] he served his sentence in an adult institution; and [vi] no
       avenue for direct appeal exists.

Sampson, 385 F.3d at 195. Based on these facts, we concluded that the youthful offender
adjudication was indeed a prior felony drug conviction. Id.

        At no time in our holding 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. Instead, we merely
recited one of the many circumstances that supported the determination in that case that the
defendant’s adjudication was indeed a prior final conviction under Section 841(b)(1). Id. There
is no set formula for determining “the substantive consequence of the criminal proceeding
underlying the youthful offender adjudication.” Jones, 415 F.3d at 264; see Driskell, 277 F.3d at
157. The determination is a function of many variables, no single one of which is dispositive.

         The record in this case does not indicate whether Jackson served his sentence in an adult
institution. That does not keep us from reaching the logical conclusion that Jackson’s youthful


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offender adjudication is a prior “felony drug offense” within Section 841(b). The record
demonstrates that Jackson was [1] tried and convicted [2] in an adult court [3] of adult drug
offenses [4] punishable by imprisonment for more than one year. N.Y. Penal Law § 70.00(2)(d)
(Class D felony is punishable up to seven years).

         Moreover, even had this been a close call, in which the location of Jackson’s time served
might tip the scales one way or the other, Jackson would not be entitled to vacatur of his sentence
and a remand for resentencing. Jackson failed to present any evidence to the District Court as to
where he served his youthful offender sentence, even though he had multiple opportunities and
was best-situated to do so. Instead, Jackson left it to conjecture and argument, even though he
was tried and convicted in an adult court. If Jackson had served his sentence in a juvenile
facility, he had every incentive to offer evidence of this fact to the District Court. As we have
noted previously, New York commits its youthful offenders to the custody of the Department of
Correctional Services along with adult felony offenders. See Cuello, 357 F.3d at 166 (citing N.Y.
Penal Law §§ 70.20, 60.02(2), 70.00(2)(e)).

        We have considered Jackson’s other arguments about the violation of his privacy rights
and the use of an earlier plea on which there had been no sentence. We have also considered his
pro se arguments. They are without merit.

                                      CONCLUSION

        We affirm the judgment of conviction and ten-year mandatory minimum sentence entered
in the District Court.




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