Second Circuit Rejects Challenge to ACCA “Serious Drug Offense”
In United States v. Ojeda, the Second Circuit (Cabranes, Raggi, Korman, by designation) affirmed a 2018 judgment issued in the Southern District of New York ordering a mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”) for a felon-in-possession conviction. The Court rejected defendant’s arguments that his prior convictions did not qualify as ACCA predicates and that ACCA’s definition of “serious drug offense” is unconstitutionally vague. Defense counsel made the right arguments, but recent changes in the law seem to have compelled this ruling.
In November 2014, David Ojeda brandished a stolen pistol while threatening a person during an argument. Having made his point, but at the cost of an arrest, he then called in even bigger guns by asking his mother to finagle his cell phone from the police in order to delete incriminating evidence. The plot was unsuccessful; Ojeda subsequently pleaded guilty to felon-in-possession and obstruction charges. Taking into account his prior convictions—for first-degree robbery, attempted sale of a controlled substance in the third degree and attempted possession of a controlled substance with intent to sell in the third degree—the district court (Carter, J.) sentenced Ojeda to the 15-year minimum mandated by ACCA, plus a concurrent term of 5 years for obstruction.
Ojeda appealed the felon-in-possession sentence and challenged the eligibility of his predicate convictions. First, he argued that first-degree robbery was only a categorical “violent felony” with the aggravating element of using or threatening the immediate use of a dangerous instrument or displaying what appeared to be a firearm. According to Ojeda, it would be possible to commit first-degree robbery without using or threatening to use physical force, a requirement for an ACCA predicate “violent felony.” However, as the Second Circuit explained, this argument was foreclosed by its recent decision in United States v. Thrower, holding that even third-degree robbery without aggravating circumstances qualified as an ACCA violent felony. The panel reasoned that even setting aside Thrower, Ojeda’s argument would have failed, because every degree of robbery under New York law requires the element of forcible stealing, which “categorically requires the use of physical force.”
Ojeda next challenged ACCA’s definition of “serious drug offenses” as those “involving manufacturing, distributing or possessing with intent to manufacture or distribute a controlled substance.” Specifically, he maintained that the word “involving” was too vague to encompass his prior attempt convictions. In support, Ojeda analogized to Johnson, in which the Supreme Court held that ACCA’s residual clause definition of “violent felony” was unconstitutionally vague. This argument, again, was foreclosed by recent Second Circuit precedent. In United States v. Wallace, decided after Johnson, the circuit held that the “expansive” reach of the word “involving” went beyond manufacture, distribution or possession, such that attempt to sell “involved” the distribution of a controlled substance, thus qualifying as a serious drug offense for ACCA purposes. As for vagueness, Johnson concerned the uncertainty of estimating how much “risk” posed by a crime amounted to a “violent felony,” presenting a fair notice issue. In contrast, given the mens rea element of Ojeda’s attempt convictions, he could “hardly claim to have lacked fair notice that his conviction was for a crime ‘involving’ the distribution of a controlled substance.”
Ojeda is yet another reminder that as the ACCA challenges pile up, so too does the wall of recent precedent that defendants must scale to succeed. As this blog has written before, Congress might consider a different approach in this area—one that would afford judges with greater discretion and relieve the federal courts of the ACCA litigation that has burdened the judiciary in recent years.
-By Sofie G. Syed and Harry Sandick