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United States v. Epps

United States District Court, D. Connecticut

June 12, 2018

UNITED STATES, Plaintiff,
v.
ROBERT EPPS, Defendant.

          SENTENCING OPINION

          Janet Bond Arterton, U.S.D.J.

         Defendant Robert Epps pled guilty to one count of possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The parties' dispute over his base offense level is based on their disagreement regarding whether Defendant's two prior offenses under Conn. Gen. Stat. § 21a-277(a) qualify as "controlled substance offenses" under U.S.S.G. §2K2.1(a)(1).

         I. Facts

         On August 28, 2017, in New Haven, Connecticut, Mr. Epps was involved in the unlawful sale of a firearm and ammunition, namely a Smith and Wesson .223 caliber AR-15-style semiautomatic rifle, a C Products Defense rifle magazine containing nine Remington .223 caliber rounds, and a Brownell's rifle magazine containing thirty Remington .223 caliber rounds. (See PSR f 9.) The Government represents that this weapon had been stolen one month earlier and that Mr. Epps knew or had reasonable cause to know that the firearm was stolen. (Id. ¶ 10.) Inasmuch as Defendant does not dispute this representation, the Court has not explored the basis for that knowledge. At the time that he possessed this firearm and ammunition and engaged in this transaction, Mr. Epps had sustained multiple prior felony convictions, and was barred from legally possessing a firearm. (Id.)

         II. Discussion

         The Government maintains that Mr. Epps' base offense level is 26 under U.S.S.G. § 2K2.1(a)(1) because he committed the instant offense after sustaining two felony convictions of a controlled substance abuse: (1) Possession of Narcotics with Intent to Sell, in violation of Conn. Gen. Stat. § 21a-277(a), on December 4, 2012; and (2) Possession of Narcotics with Intent to Sell, in violation of Conn. Gen. Stat. § 21a-277(a), on January 11, 2012. Mr. Epps, however, asks this Court to find that these two convictions are not qualifying controlled substance offenses, and therefore to find that his base offense level is 20.

         A. Legal Framework

         When determining whether a conviction qualifies as a predicate offense under the Sentencing Guidelines, the Second Circuit uses the framework set forth by the Supreme Court in the context of analyzing whether a prior conviction qualifies as an Armed Career Criminal Act ("ACCA") predicate.[1] See United States v. Savage, 542 F.3d 959, 964 (2d Cir. 2008); see also United States v. Walker, 595 F.3d 441, 443 (2d Cir. 2010) ("Whether a prior conviction following a guilty plea to a statutory offense is a qualifying predicate for a Guidelines enhancement is guided by the two-step 'modified categorical approach' described in Savage").

         That framework requires that sentencing courts start with a categorical approach which requires them to look "to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602 (1990). "If the relevant statute has the same elements as the 'generic' ACCA crime, then the prior conviction can serve as an ACCA predicate; so too if the statute defines the crime more narrowly." Descamps v. United States, 570 U.S. 254, 261 (2013). "But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Id.

         However, where a state "statute lists multiple, alternative elements, " that statute is "divisible" and the modified categorical approach comes into play. Id. at 263-64. This approach is a tool for implementing the categorical approach, which allows the sentencing court to look to additional sources, including "the indictment or information and jury instructions, " Taylor, 495 U.S. at 602, in order to enable it to "determine which of a statute's alternative elements formed the basis of the defendant's prior conviction, " Descamps, 570 U.S. at 262. Once a sentencing court has used such materials to identify the element underlying the conviction, it then must apply the categorical approach to determine if the prior conviction qualifies as an ACCA predicate. See Id. at 263.

         Recently, the Supreme Court held that the modified categorical approach is not available where a statute "enumerates various factual means of committing a single element." United States v. Mathis, 136 S.Ct. 2243, 2249 (2016). Thus,

The first task for a sentencing court faced with an alternatively phrased statute is ... to determine whether its listed items are elements or means. If they are elements, the court should do what we have previously approved: review the record materials to discover which of the enumerated alternatives played a part in the defendant's prior conviction, and then compare that element (along with all others) to those of the generic crime. But if instead they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution. ... [T]he court may ask only whether the elements of the state crime and generic offense make the requisite match.

Id. at 2256. (internal citation omitted).

         To determine whether a state statute lists alternative elements or alternative means, courts are directed to consider whether: (1) "a state court decision definitively answers the question;" (2) the "statutory alternatives carry different punishments" and therefore must be elements under Apprendi; and (3) the statute itself "identifies] which things must be charged (and so are elements) and which need not be (and so are means)." Id.

         Defendant makes two independent arguments that his prior convictions do not constitute predicate offenses such that he is subject to the 2K2.1 enhancement. First, he claims that the list of actions set forth in Conn. Gen. Stat. § 21a-277(a) prohibits conduct not prohibited under federal law (thereby failing to satisfy the categorical approach) and that these actions are alternative means of committing the offense (thereby rendering unavailable the modified categorical approach). Second, Defendant argues that the state scheme prohibits controlled substances not prohibited under federal law (thereby failing to ...


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