United States v. Cruz

136 F. App'x 386
CourtCourt of Appeals for the Second Circuit
DecidedJune 14, 2005
DocketNo. 04-3415-CR
StatusPublished
Cited by3 cases

This text of 136 F. App'x 386 (United States v. Cruz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cruz, 136 F. App'x 386 (2d Cir. 2005).

Opinion

SUMMARY ORDER

Defendant Felix Cruz appeals from a judgment of conviction entered on June 17, 2004 in the United States District Court for the Southern District of New York (Barbara S. Jones, Judge), following his guilty plea to one count of unlawfully possessing a firearm in interstate commerce after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1) (2000). The district court sentenced Defendant to a term of 57 months’ imprisonment, to be followed by three years’ supervised release, and a mandatory $100 special assessment was imposed. We reject Defendant’s argument that the district court erred in calculating his sentence under the November 2003 edition of the United States Sentencing Guidelines (the “Guidelines”), but remand the case to the district court for proceedings consistent with United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

Defendant argues on appeal that the district court erred in calculating his base offense level under § 2K2.1 of the Guidelines. The district court enhanced Defendant’s offense level under § 2K2.1(a)(2) on the basis of Defendant’s two prior felony convictions for controlled substance offenses. Defendant argues here, as he did in the district court, that his “youthful offender adjudication” following a 2001 conviction in New York Supreme Court for criminal possession of a controlled substance in the third degree is not a qualifying “adult conviction” for purposes of § 2K2.1(a)(2). We disagree.

As a preliminary matter, we note that we reach this Guidelines issue notwithstanding the fact that the Guidelines are now only advisory under Booker because “the district court on remand remains under an obligation to consider 'the sentence that would have been imposed under the Guidelines.’ ” United States v. Maloney, 406 F.3d 149, 152 (2nd Cir.2005) (quoting Crosby, 397 F.3d at 113). Our resolution [388]*388of this issue on appeal will assist the district court in fulfilling that obligation.

We review the district court’s interpretation of the Sentencing Guidelines de novo, and review the court’s findings of fact for clear error. See United States v. Rubenstein, 403 F.3d 93, 99 (2d Cir.2005); United States v. Fiore, 381 F.3d 89, 92 (2d Cir.2004). However, when, as here, we review a district court’s application of the Guidelines to the facts, we take an “either/or approach.” United States v. Vasquez, 389 F.3d 65, 74 (2d Cir.2004). Under this approach, we review “determinations that primarily involve issues of law” de novo, and we review “determinations that primarily involve issues of fact” for clear error. Id. at 74. Furthermore, “even a nominally legal issue might be so ‘bounded by[] case-specific detailed factual circumstances’ as to warrant ‘clearly erroneous’ review.” Id. at 74-75 (quoting Buford v. United States, 532 U.S. 59, 65, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001)).

Section 2K2.1 governs the crime of unlawful possession of a firearm by a convicted felon. Section 2K2.1(a)(2) provides for a base offense level of 24 if the defendant committed the offense “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” Application Note 5 to § 2K2.1 defines the term “felony conviction” as follows:

“Felony conviction” means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen years or older is an adult conviction. A conviction for an offense committed pri- or to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).

U.S.S.G. § 2K2.1, cmt. n. 5.

We have had a number of occasions to consider whether a New York youthful offender adjudication may be considered an adult conviction under the Sentencing Guidelines, and therefore, we will not repeat that discussion here. See generally United States v. Cuello, 357 F.3d 162 (2d Cir.2004); United States v. Reinoso, 350 F.3d 51 (2d Cir.2003); United States v. Driskell, 277 F.3d 150 (2d Cir.2002); United States v. Matthews, 205 F.3d 544 (2d Cir.2000). Suffice it to say that our case law teaches that in determining whether a New York youthful offender adjudication is “classified as an adult conviction under the laws of New York” for the purposes of § 2K2.1, “[rjather than finding New York’s label conclusive, ... the better course is for a district court to examine the substance of the prior conviction at issue; to focus on the nature of the proceedings, the sentences received, and the actual time served.” Driskell, 277 F.3d at 157 (emphasis added) (internal quotations omitted), quoted in Cuello, 357 F.3d at 168.

That is precisely what the district court did in this case. For in deciding that Defendant’s 2001 conviction constituted an adult conviction, Judge Jones emphasized a number of factors that convinced her that Defendant’s 2001 conviction was, in substance, an adult conviction. First, even though Defendant was sixteen at the time he committed the crime, he was charged with a serious adult crime, not a juvenile offense. Second, he was prosecuted and convicted in an adult court — the New York Supreme Court, Bronx County — rather than a family court. Third, although fol[389]*389lowing his conviction as an adult he received a youthful offender adjudication, Defendant was sentenced to a term of probation of five years, the kind of sentence “that adults receive every day.” Fourth, Defendant’s probation was supervised by the Probation Department— which supervises adults- — rather than an agency focused on juvenile delinquents. Fifth, had Defendant been sentenced to prison, he would have served his sentence in an adult prison, rather than a juvenile facility.2

Defendant does not seriously dispute any of those facts or that they weigh in favor of classifying his 2001 conviction as an adult conviction.

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Bluebook (online)
136 F. App'x 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cruz-ca2-2005.