1 The H onorable Paul A. Crotty of the United States District Court for the Southern Distri ct of New York, sitt ing by designati on.

1 05-5928-cr United States v. Kashawn Jackson

UNITED STATE S COURT OF APPEALS FOR THE S ECOND CIRCUI T
August T erm, 2007
(Argued: Se

pt. 20, 2007 Decided: October 5, 2007) Docket No. 0 5-5928-cr

U NIT ED S TATES OF A MERICA ,

Appellee ,

v.

K ASH AWN J ACKS ON ,

Defendant-Appellant.

Before M INER and C ABRANES , Circuit Judges , and C ROTTY , 1 District Judge

.
The Unite d States Di strict Cou rt for the Eastern District o f New York (Thoma s C. Platt, Judge ) sentenced defendant to ten-y ears’ imprisonment upon determining that his 2001 y outhful offender adjudication constituted a “prior conviction for a felony drug

offense” for purposes of 21 U.S.C. § 841(b)(1)(B). On appeal, defe ndant contends, inter alia , that it was improper for the District Court to draw this conclusion without undertaking any fact-finding as to whether he served his youthful off

ender sentence in a juvenile or adult fac ility. We hold that our precedent does not require a district court, when deciding w hether or not a prior conviction trigge rs the mandator y min imum provis ion of 21 U .S.C. § 841( b)(1)(B), to c onsider t

he natur e of the f acility in which the defendant served his prior sentence. A FFI RMED

. Sally Wasserma

n, New York, NY, f

or Defe ndant-A ppellant

. Emily Berger, Assistant United States Attorney ( Roslynn R. Mauskopf, United States Attorney, on the brief ; Susan Corkery, Assistant United States Attorney , of counsel ), Office of the United States Attorney for the Eastern District of New York, Brookly

n, NY, for Appellee.

P ER C URIA M :2 Under N ew York law, a 16-to-18 year-old offender, convict ed as an adult, may be adjudicated a youthful off ender, the reby vacat ing and re placing hi s conv ict ion w ith a y outh fuloff ender fi ndin g. CPL §§ 720 .10( 1)-(2 ), 720 .20( 1)-(3 ); see also United States v. Jones , 415 F.3d 25 6, 260 (2d C ir. 2005). Youthful offend er status a ffords th e defe nda nt certa in ben efits, such a s priva cy pro tection s. CP L § 7 20.3 5(2 ); see Un ited S tates v. D riskell , 277 F.3d 15 0, 155-56 (2d Cir. 2002). Youthful offender adjudicati on is “meant to provide a

second chance, ” Sampson , 385 F.3d at 195 (2 d Cir. 2004) (quotation omitted), and recogniz es the young def endant’ s “poten tial

for re habili tati on,” Drisk ell , 277 F.3d at 155. H owever, youthfu l offend er findin gs do not ex cuse re cidivists fro m enh ance d sen tencing in the fed eral co urts me rely bec ause the ir prior offense s are no t deem ed “c onvic tions” u nde r state law

. Sampson , 385 F.3d at 19 5. W e have held that dist

rict courts may consider youthfuloffender adjudications as predicat e prior felony convictions for t

he imposition of i ncreased sentences under secti ons of the United States Sent encing Gu ideline s and other s tatutes. See Jones , 415 F.3d at 262- 64 (all owing t he use of youthf ul off ender adju dicatio n to ca lculate b ase o ffense lev el und er U .S.S.G . §§ 4 B1 .1); Un ited S tates v. C uello , 357 F. 3d 162 , 168 -69 (2 d C ir. 200 4) (sa me un der U .S.S.G . § 2K 2.1( a)); Un ited States v. Re inoso , 350 F. 3d 51, 53- 55 ( 2d C ir. 200 3) (sa me un der U .S.S.G . § 2L 1.2) ; Drisk ell , 277 F.3d at 154- 58 (to cal culat e crimi nal history ca tegor y unde r U.S .S.G . § 4A 1.1) ; United St ate s v. Matthews , 205 F.3d 54 4, 548-49 (2d Cir. 200 0) (sa me); see also Sampson , 385 F. 3d at 195 ( to es tabl ish prior “f elony drug of fen se” pu rsuant t o 28 U.S .C. § 8 41( b)).

2 Defendant-appellant Kashawn Jackson (“Jackson”) a ppeals the October 26, 2005 judgment of conviction entered aga inst him and the sentence imposed upon him by the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge), which sentenced him as a prior felon to a term of ten y ears. Jackson argues that the District Court erred in concluding that his New York y outhful offender adjudication was “a prior convic tion for a felony drug

offense [that] has become final” within the meaning of 21 U.S.C. § 841(b)(1)( B) and thereby subjectin g him to a ten-y ear man datory minimum sen

tence. Ja ckson contends tha

t in reaching this conclusion the District Court failed to consider whethe r he served his y

outhful offender sentence in a juvenile or adult fa cility as alleg edly require d by our holding in United States. v. Sampson , 385 F.3d 183, 195 (2d Cir. 2004). We hold that our precedent does not require a district court to consider, when deciding whether or not a prior conviction trigge rs the mandatory minimum provisions of 21 U.S.C. § 841(b)(1)(A) –(B), in what ty

pe of facility the defenda nt serve d his prior

sentenc e. We aff

irm.
On May 9, 2005, Jac

kson plea ded gui lty t

o a singl e-count

indictmen

t charging him wi

th possession with inte

nt to distri

bute five grams or more of

cocaine base in vi olation of

21 U.S.C. § 841(a)(1) and (b)(1)(B )(iii). Before the plea, the g overnment had filed an information pursuant to 21 U.S.C. § 851(a) , notify ing the c ourt that Ja

ckson ha d been c onvicted

by t he Nassa u County Court in 2001 of a Class D felony: cr iminal sale of a controlled substance in the fifth degre e. Prior to the imposition of six months’ imprisonment, Jackson was adjudicated a youthful offender. This required the state court to “dire ct that the conviction be deemed vacated and replaced by

a youthful offe

nder finding.” N.Y. Crim. Proc. L aw (“CPL”) § 720.20(3). 2 The consequences of that conviction and the y outhful offender status were discussed at leng th during the May 9, 2005 hea

ring before the District Court.
At his October 21, 2005 sentencing, Jackson again questioned w hether his youthful offender conviction should constitute a prior felony . His chief contention at that time was that3

the Distr ict Court had discr

etion to choose not t

o use a y outhful of fender convicti on as the b asis for a se ntencing enhanc ement pursuant to 21 U.S.C. § 841 (b)(1) (B). The court c oncluded that it lacked s uch discr etion and imposed the mandat

ory minimum sen

tence of ten y ears. Jackson now argues that this court’s holding in Sampson mandate d a six-fac tor test that a sentencing court must apply in evaluating whether a New Yor k youthful offende

r adjudication qualifies as a prior final conviction under Section 841(b)(1). He contends that the District Court failed to make a finding of fact with regard to one of those factors, the ty pe of facility in whic

h Jackson was incarcerated, and theref ore erred in apply

ing the mandatory

minimum. We review this determination de novo

. See, e.g. , United Sta tes v. Lew is , 386 F.3d 475, 479 (2d Cir. 2004).
The issue is whether a prior conviction that is “replaced by a youthful offe

nder finding,” CPL § 720.20(3), qualifies as a “fe lony drug of fense.” 21 U.S.C. § 841(b). A “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the Un ited State s or of a St

ate or f oreign country that proh ibits or re stricts c onduct re lating to narcotic drugs, marihuana, ana bolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44).

In Sampson , we considered whether a conviction re placed by a

youthful offende

r adjudication could ever qualify as a “final” felony

drug conviction under Section 841(b)(1). 385 F.3d at 194-95. We held that the district court appropriately used the defendant’s prior conviction, notwithstanding his youthful offe nder adjudication, to increase the defenda nt’s statutory mandatory

minimum, because:
as a result of the criminal conduct underly ing [defendant’s] youthful off ender adjudication, he was [i] tried and convicted [ii] in an adult court [iii] of adult drug “offense[s] . . . [iv] punishable by imprisonment for more than one y ear,” 21 U.S.C. § 802(44); [v] he served his sentence in an adult institution; and [vi] no avenue for direct appeal exists.
Sampson , 385 F.3d at 195. Based on these facts, we c oncluded that the youthful off ender adjudication was indeed a prior felony drug conviction. Id.

At no time in

our holdin

g did we sugge st that a di strict co

urt must make a finding of fact on the issue of whe

re a def endant se rved his y outhful of fender sentenc e. I

nstead, we merely recited one of the many

circumstances that supported the determination in that case that the defendant’s adjudication was indeed a prior fina l conviction under Section 841(b)(1). Id. There is no set formula for determining “the substantive consequenc e of the criminal proceeding underlying

the youthful offende

r adjudication.” Jones , 415 F.3d at 264; see Driskell

, 277 F.3d at 157. The determination is a function of many variables, no single one of which is dispositive.

The rec ord in this c ase does not indica

te whethe r Jackson s erved hi s sentenc e in an ad ult institution. That does not keep us from reaching the logical c onclusion that Jackson’s youthful4

offender adjudication is a prior “felony drug offense” within Section 841(b). The re cord demonstrates that Jackson was [1] tried and convicted [2] in an adult court [3] of adult drug offenses [4] punishable by imprisonment for more than one year. N .Y. Penal Law § 70.00(2)(d) (Class D felony is punishable up to seve n years)

. Moreover, even had this been a close ca ll, in which the location of Jackson’s time served might tip the scales one way or the other, Jackson would not be entitled to vacatur of his sentence and a re mand for resente ncing. Jackson fa

iled to pre sent any

evidenc e to the Di strict Cou rt as to where he served his y

outhful offender sentence, even thoug h he had multiple opportunities and was best-situated to do so. Instead, Jackson left it to conjecture and argument, even though he was tried and convicted in an adult court. If Jackson had serve d his sente nce in a j uvenile facility, he had e

very ince ntive to offer evidence of this fact to the District Court. As we have noted previously, New

York commits its youthful offenders to the c ustody of the Depa

rtment of Correctional Services along with adult felony offenders. See Cuello , 357 F.3d at 166 (citing N.Y. Penal Law §§ 70.20, 60.02(2), 70.00(2)( e)).

We have c onsidere d Jackson’ s other a rgumen ts about the violation of his pr ivacy rights and the us e of an e arlier p lea on wh ich ther e had be en no sen

tence. We

have als o conside

red his pro se arguments. They

are without merit.

C ONCLUS ION We affirm the judgment of conviction and ten-y ear mandatory

minimum sentence entered in the District Court.