Drug Law Reform By State Reduces Federal Sentence
By Mark Hamblett
November 29, 2006
A defendant has avoided a 15-year mandatory sentence under a federal repeat-felony offender law because New York's 2004 Drug Law Reform Act downgraded his prior convictions to less than "serious" offenses.
Southern District Judge Richard Holwell found that two prior Class C felonies for defendant Ralph Archer would have earned him the federal minimum had the state Legislature not changed the indeterminate sentencing scheme of the Rockefeller drug laws.
Instead of a 15-year minimum sentence, Mr. Archer received 8 years and 9 months in prison.
The question posed to Judge Holwell in United States v. Archer, 04 Cr. 505, involved the definition of the phrase "serious drug offenses" under the Armed Career Criminal Act, 18 U.S.C. §924(e) (2000).
The act calls for a 15-year mandatory minimum for anyone who has three prior convictions for a violent felony or a serious drug offense.
Mr. Archer was arrested on May 14, 2004, by New York City police officers at a known drug location. A plainclothes officer seized a .380 caliber semi-automatic from Mr. Archer's waistband. On Oct. 11, 2004, he pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§922(g)(1) and 924(g).
Mr. Archer had three prior felony convictions - one a Class B felony for criminal sale of a controlled substance in the Bronx in 1991 and a pair of Class C felony convictions in 1995 for third-degree criminal sale of a controlled substance, also in the Bronx.
Under the federal act, a serious drug offense is any offense involving drugs "for which a maximum term of imprisonment of ten years or more is prescribed by law."
With the probation report calling for Mr. Archer to receive the mandatory minimum under the act, he argued that the seriousness of predicate felonies should be determined by the state sentencing scheme currently in effect.
Mr. Archer contended that the words "is prescribed" are in the present tense so the date on which he was sentenced is the relevant one for determining the seriousness of his drug offenses.
The government countered that case law of the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit meant that Judge Holwell should have looked at state sentencing statutes in effect at the time of Mr. Archer's state felony convictions.
Judge Holwell said the Sixth Circuit, faced with a similar issue in United States v. Morton, 17 F.3d 911 (1994), reversed a mandatory minimum sentence under the act because, by the time the defendant was sentenced, Tennessee had reclassified one of its drug trafficking offenses from a Class B to a Class C felony.
And Eastern District Judge David Trager, in United States v. Hammons, 438 F.Supp. 2d 125 (2006), said it was the state's present view of the seriousness of the offense that matters.
"This policy decision by the state - not the mechanical result of applying the current sentencing structure to Hammons' past crimes - is what should determine, for federal law purposes, whether the [Armed Career Criminal Act] should apply," Judge Trager said.
Judge Holwell agreed with that reasoning and Mr. Archer's view that the use of the present tense is determinative.
"Had Congress intended otherwise it just as easily could have defined 'serious drug offense' as a state drug offense 'for which a maximum term of imprisonment of ten years or more was prescribed by law,'" he said. "But Congress did not use the word 'was,' and this court cannot read the word into the statute."
Judge Holwell, agreeing with the Sixth Circuit that the question is "at least ambiguous," said the "rule of lenity applies" and Mr. Archer's argument prevails.
Because under this interpretation Mr. Archer only has one predicate felony, Judge Holwell said he was free to impose a lesser sentence.
Mr. Archer's attorney, John M. Burke, said the decision is unlikely to impact more than a handful of cases.
Assistant U.S. Attorney Christine Meding represented the government.
- Mark Hamblett can be reached at mhamblett@alm.com.