Court: Court of Appeals for the Second Circuit; February 10, 2016; Federal Appellate Court
Defendants-appellants Michael Welch and Allan Snyder were convicted of conspiracy and substantive offenses related to marijuana manufacturing, violating various sections of 21 U.S.C. Welch was sentenced to 144 months in prison, while Snyder received a 204-month sentence. Both defendants appeal their convictions, raising key issues: the sufficiency of the evidence, an alleged Brady violation, the intrastate nature of their conduct, the enhancement of Snyder's sentence due to weapon possession, and Welch's classification as a career offender.
Welch contests the sufficiency of the evidence supporting his conviction, arguing that the removal of roots from the seized marijuana plants violated his due process rights, preventing him from verifying if the plants met the Sentencing Guidelines' definition of a "plant." The court found ample evidence to uphold the jury's verdict, determining that a rational trier of fact could conclude beyond a reasonable doubt that Welch conspired to manufacture and did manufacture at least 100 marijuana plants. This conclusion was supported by phone calls, text messages, and the recovery of 484 marijuana plants with confirmed root structures during law enforcement's seizure operations. Officer testimonies corroborated that each plant had identifiable roots, countering the defendants' arguments regarding the absence of roots at trial. The evidence included video documentation of the marijuana collection process, affirming the plants' compliance with the definition under the Sentencing Guidelines.
Brady Defendants claim a Brady violation due to the government's failure to preserve marijuana plants, arguing this deprived them of inspection rights. The court finds this claim unmeritorious, emphasizing that the marijuana evidence is not exculpatory, as established in United States v. Coppa. A defendant must demonstrate that the government suppressed evidence that is favorable and that its nondisclosure resulted in prejudice.
Welch contends the Controlled Substances Act (CSA) does not apply because their activities were purely intrastate. However, the court clarifies that an effect on interstate commerce is not an element necessary for conviction under the CSA, referencing United States v. Parkes and the Supreme Court's ruling in Gonzales v. Raich, which affirms that all drug dealing, regardless of its local nature, affects interstate commerce.
Snyder challenges a two-level enhancement for weapon possession under the Sentencing Guidelines, arguing a loaded shotgun found in his home was unrelated to his drug conspiracy. The court notes that the shotgun was discovered near marijuana and cash, and Snyder’s claim of its sole use for hunting does not negate its connection to the drug offense. The sentencing court’s determination, reviewed de novo for guideline interpretation and for clear error on factual findings, concluded that the enhancement was justified. The court highlights that the presence of the weapon is applicable unless the defendant proves it was clearly improbable that it was connected to the offense, citing U.S.S.G. 2D1.1(b)(1) and relevant case law.
Welch contends that the district court incorrectly classified his prior New York State conviction for attempted second-degree burglary as a 'crime of violence' under U.S.S.G. 4B1.2(a). The court erred in this determination. The Sentencing Guidelines define a 'crime of violence' as an offense punishable by over one year of imprisonment that either involves the use or threat of physical force or falls within specific categories like burglary of a dwelling. The modified categorical approach is applied when assessing whether a conviction qualifies as a 'crime of violence,' requiring the government to show that the conviction necessarily involved facts identifying it as such if the statute encompasses conduct outside the definition.
Welch’s conviction includes conduct not defined as a 'crime of violence' under the Guidelines. The district court asserted that attempted second-degree burglary in New York always involves burglary of a dwelling. However, New York law permits second-degree burglary of non-dwelling buildings, which may not entail the use of physical force. Under N.Y. Penal Law 140.25, a conviction occurs when a person unlawfully enters a building with intent to commit a crime, which can be satisfied without using physical force, such as through deception. This aligns with precedent indicating that intentional injury does not necessarily equate to the use of physical force. Therefore, a second-degree burglary conviction can be achieved through actions that cause injury without invoking the 'use of physical force' clause of the Guidelines.
Attempted second-degree burglary is no longer considered a predicate offense under the residual clause of U.S.S.G. 4B1.2(a)(2) following the Supreme Court's ruling in Johnson v. United States, which deemed the residual clause of the Armed Career Criminal Act (ACCA) unconstitutional due to vagueness. The language found unconstitutional in the ACCA mirrors that in the career offender Guideline, prompting courts to interpret them similarly. Previously, attempted second-degree burglary qualified as a "crime of violence" under the Guidelines, but the government admits that Johnson's ruling extends to these Guidelines.
The district court determined that Welch pled guilty to attempted burglary of a dwelling without requiring the government to prove that this conviction necessarily identified it as a crime of violence. This determination was based on the Presentence Report (PSR), which included details of the burglary but is not permissible as evidence for qualifying a prior offense as a predicate crime of violence. The court's reliance on the PSR was improper, as it exceeded the permissible scope outlined in Shepard v. United States, which limits the inquiry to specific documents and findings.
Ultimately, Welch's conviction does not categorically qualify as a crime of violence, and because the career offender provision necessitates two predicate offenses, Welch does not qualify for the sentencing enhancement based on the district court's ruling.
Defendants' additional arguments have been deemed meritless. The district court's judgments are affirmed, but Welch's sentence is remanded for vacating and resentencing in accordance with this order. Snyder's motion to reduce his sentence, filed on July 1, 2015, was granted on September 25, 2015, resulting in a reduction to 162 months. Following the Supreme Court’s ruling in Johnson, the U.S. Sentencing Commission amended guideline 4B1.2(a) to eliminate the residual clause related to 'crime of violence' and removed burglary of a dwelling from the enumerated offenses. Welch pled guilty to attempted burglary in the third degree, which can involve unlawfully entering any building with criminal intent, as defined under N.Y. Penal Law 140.20. Consequently, Welch's third-degree burglary convictions do not qualify as crimes of violence under 4B1.2(a) unless the government can prove that at least one conviction was based on facts categorizing it as a crime of violence, as per the standards set in Reyes, 691 F.3d at 458, and supported by Shepard-approved documents.
