United States v. Brown

09-4991

United States v. Brown

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2010

(Submitted: December 22, 2010 Decided: January 5, 2011)

Docket No. 09-4991-cr

________________________________________________________

UNITED STATES OF AMERICA ,

Appellee,

—v.—

MOZZELLE BROWN ,

Defendant-Appellant.

________________________________________________________

B e f o r e : CALABRESI, SACK, KATZMANN , Circuit Judges.

_______________

Defendant-Appellant appeals from a judgment of conviction, entered on November 24, 2009 in the

United States District Court for the District of Connecticut (Hall, J.), convicting defendant of being

a felon in possession of a firearm and sentencing him principally to 180 months’ imprisonment

pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e). For the reasons stated below, the

judgment of the district court is AFFIRMED.

_______________

Counsel for Defendant-Appellant: Richard C. Marquette, Goldblatt, Marquette &

Rashba, P.C., Hamden, CT

Counsel for Appellee: Brian P. Leaming, Assistant United States Attorney

(Sandra S. Glover, Assistant United States Attorney,

of counsel), for David B. Fein, United States

Attorney for the District of Connecticut, New

Haven, CT

_______________

PER CURIAM :

Defendant-Appellant Mozzelle Brown appeals from a November 24, 2009 judgment of

conviction entered by the United States District Court for the District of Connecticut (Hall, J.),

following Brown’s plea of guilty to being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). The district court found that Brown’s criminal history subjected him to an

enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and

sentenced him principally to 180 months’ imprisonment, the minimum sentence provided by that

statute. On appeal, Brown challenges two of the conclusions reached by the district court in

determining that Brown had three prior felony convictions for violent felonies or serious drug

offenses, thus triggering the ACCA’s mandatory minimum. First, he claims that the district court

improperly counted two of his prior drug convictions as separate ACCA predicate offenses.

Second, he contends that the district court erred by treating his prior conviction for assaulting

two corrections officers in violation of Connecticut General Statutes (“CGS”) § 53a-167c(a)(1)

as a “violent felony” within the meaning of the ACCA. We hold that the district court committed

no error in either of these determinations and thus affirm the judgment of the district court.

The facts relevant to this appeal are undisputed and few. On July 24, 2008, Brown was

arrested on a sealed criminal complaint after he sold a confidential informant a handgun and a

half-ounce of cocaine base. Shortly thereafter, a grand jury returned a two-count indictment, and

approximately one year later, Brown pleaded guilty pursuant to a plea agreement to the first

count of that indictment, which charged him with being a felon in possession of a firearm in

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violation of 18 U.S.C. § 922(g)(1).

The plea agreement indicated that Brown and the government disagreed about whether

Brown’s prior convictions subjected him to the ACCA’s mandatory minimum sentence, and this

issue remained contested at sentencing. As set forth in Brown’s Presentence Report and the

transcripts of his plea colloquies, Brown’s prior convictions included the following:

First, on August 11, 1993, Brown pleaded guilty to a handwritten information charging

him with two counts of “assault on a peace officer” in violation of CGS § “53a-167c(1).” Gov’t

App. 31. The prosecutor proffered that the factual basis for this plea was that on December 18,

1992, Brown kicked and punched two corrections officers at the Radgowski Correctional Center

in Montville, Connecticut, when these prison guards tried to break up a fight in which Brown had

been involved. Brown admitted to “assault[ing] the guards,” id. at 70, and the court accepted his

plea. Brown was sentenced to two concurrent terms of seven years’ imprisonment.

We pause briefly to observe that the handwritten information’s references to § “53a-

167c(1),” which were repeated by the clerk during the plea hearing, identify a nonexistent

subsection of CGS § 53a-167c, and thus appear to have been a scrivener’s error. As the district

court concluded and the parties agree, the offense to which Brown intended to plead guilty was

set forth in subsection (a) of CGS § 53a-167c, which, at the time of Brown’s conviction,

proscribed “assault of . . . [an] employee of the department of correction.”

Second, on October 31, 2000, Brown pleaded guilty to “sale of hallucinogen/narcotic” in

violation of CGS § 21a-277(a). In support of this guilty plea, the prosecutor recited that Brown

was arrested on May 3, 2000 for a motor vehicle violation, and when Brown was taken into

police custody, a drug-sniffing dog alerted the police to twenty-nine rocks of crack cocaine

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concealed in Brown’s pants. Brown admitted to that conduct in his plea allocution, and the court

accepted his plea.

Third, on March 22, 2001, Brown pleaded guilty to another violation of CGS § 21a-

277(a) as well as to a charge of criminal possession of a pistol. As the factual basis for these

offenses, the prosecutor recited that on November 9, 2000, the Norwich Police Department had

obtained a search warrant for Brown’s apartment and was conducting surveillance when Brown

was seen fleeing in a motor vehicle. The police pursued and apprehended Brown. The police

also executed the warrant at Brown’s apartment, and there found crack cocaine, other drugs, a

firearm, and ammunition. The prosecutor and the court both noted that these offenses took place

while Brown was awaiting sentencing for the prior § 21a-277(a) violation. Brown admitted to

this conduct, and the court accepted his plea. On June 12, 2001, Brown was sentenced on the

charges arising from both the May and November 2000 arrests to concurrent terms of ten years’

imprisonment, with execution suspended with three years left to serve, and three years’

probation.

We turn now to Brown’s challenges to the district court’s finding that these prior

convictions justified an enhanced sentence pursuant to the ACCA, which requires that persons

who are convicted of violating 18 U.S.C. § 922(g) and who “ha[ve] three previous

convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions

different from one another” be sentenced to at least fifteen years’ imprisonment. 18 U.S.C. §

924(e)(1). We review de novo questions of law relating to a district court’s application of the

ACCA, but apply clear error review to a district court’s factual findings regarding the nature of a

prior offense. See United States v. Rosa, 507 F.3d 142, 151 & n.8 (2d Cir. 2007); United States

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v. Houman, 234 F.3d 825, 827 (2d Cir. 2000) (per curiam).

Brown’s first argument is that the district court erred by failing to treat his two prior drug

convictions as a single ACCA predicate offense, though he does not contest that the convictions

otherwise fit the definition of “serious drug offense[s]” under the ACCA, see 18 U.S.C. §

924(e)(2)(A). This argument is addressed to the ACCA’s requirement that two offenses must be

“committed on occasions different from one another” in order to be counted as separate ACCA

predicate convictions. Id. § 924(e)(1). We have previously held that “two convictions arise from

conduct committed on different occasions if they do not stem[] from the same criminal episode.”

United States v. Daye, 571 F.3d 225, 237 (2d Cir. 2009) (alteration in original) (quoting United

States v. Rideout, 3 F.3d 32, 34 (2d Cir. 1993)) (internal quotation marks omitted).

“Considerations relevant to this determination include whether the victims of the two crimes

were different, whether the crimes were committed at different locations, and whether the crimes

were separated by the passage of time.” Id. In United States v. Rideout, we concluded that two

breaking-and-entering convictions were properly treated as separate for purposes of the ACCA

when these convictions were “for offenses committed against different victims separated by at

least twenty to thirty minutes and twelve to thirteen miles.” 3 F.3d at 35. Here, while Brown

was sentenced for the two drug offenses on the same day, the conduct underlying these offenses

was separated by several months, involved distinct arrests, and took place at different locations.

We thus readily affirm the district court’s conclusion that these two offenses were “committed on

occasions different from one another” and therefore were properly counted as two separate

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ACCA-qualifying convictions.1

Brown also challenges the district court’s treatment of his conviction for assaulting

corrections officers in violation of CGS § 53a-167c(a) as a “violent felony” under the ACCA.

“We review de novo the District Court’s conclusion that a prior offense is a violent felony.”

Daye, 571 F.3d at 228.

The ACCA defines the term “violent felony” to mean:

any crime punishable by imprisonment for a term exceeding one year . . . that—

(i) has as an element the use, attempted use, or threatened use of physical force

against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The Government does not contend that Brown’s conviction falls under

the first subsection of this definition, but rather argues that the conviction qualifies under the

final, “residual” clause of the second subsection in that it “otherwise involves conduct that

presents a serious potential risk of physical injury to another.”

In considering whether a particular offense qualifies as a violent felony under the

ACCA’s residual clause, we employ a “categorical approach.” United States v. Johnson, 616

F.3d 85, 88 (2d Cir. 2010) (internal quotation marks omitted). This inquiry is framed “in terms

1

Brown independently argues that the district court erred by treating these two drug

convictions separately for purposes of computing Brown’s criminal history under the United

States Sentencing Guidelines (“Guidelines”), because Guideline 4A1.2 provides that sentences

“imposed on the same day” are not to be counted separately “[i]f there is no intervening arrest.”

This Guideline also states that “[p]rior sentences always are counted separately” where, as here,

“the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the

defendant is arrested for the first offense prior to committing the second offense).” Thus,

Guideline 4A1.2 by its terms is inapplicable, and we need not reach the Government’s other

arguments that this Guideline is irrelevant to Brown’s sentence.

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of how the law defines the offense and not in terms of how an individual offender might have

committed it on a particular occasion,” Begay v. United States, 553 U.S. 137, 141 (2008), but we

do not “requir[e] that every conceivable factual offense covered by a statute must necessarily

present a serious potential risk of injury before the offense can be deemed a violent felony,”

James v. United States, 550 U.S. 192, 208 (2007).

At times relevant to Brown’s arrest and conviction for assaulting the corrections officers,

CGS § 53a-167c(a) provided that:

A person is guilty of assault of a peace officer, fireman, employee of an

emergency medical service organization or employee of the department of correction

when, with intent to prevent a reasonably identifiable peace officer, fireman[,] . . .

employee of an emergency medical service organization . . . , or employee of the

department of correction from performing his duty, and while such peace officer, fireman

or employee is acting in the performance of his duties, (1) he causes physical injury to

such peace officer, fireman or employee, or (2) he throws or hurls, or causes to be thrown

or hurled, any rock, bottle, can or other article, object or missile of any kind capable of

causing physical harm, damage or injury, at such peace officer, fireman or employee, or

(3) he uses or causes to be used any mace, tear gas or any like or similar deleterious agent

against such peace officer, fireman or employee, or (4) he throws, hurls, or causes to be

thrown or hurled, any paint, dye or other like or similar staining, discoloring or coloring

agent or any type of offensive or noxious liquid, agent or substance at such peace officer,

fireman or employee.2

Brown contends that this statute covers both violent and non-violent crimes. In such

circumstances, we may undertake “a limited inquiry into which part of the statute the defendant

was convicted of violating,” Johnson, 616 F.3d at 92 (quoting United States v. Mills, 570 F.3d

508, 511 (2d Cir. 2009) (per curiam)) (internal quotation mark omitted), at least where the statute

of conviction is divisible in that it “describe[s] the violent felonies . . . in distinct subsections or

2

The statute has since been amended in several respects, primarily to expand the list of

protected classes and to cover certain additional types of conduct. Because these amendments

are not germane to our analysis or the cases cited herein, we do not discuss them further.

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elements of a disjunctive list,” Daye, 571 F.3d at 229 n.4.

We have previously had occasion to consider whether CGS § 53a-167c(a) is divisible for

purposes of this “limited inquiry.” In Canada v. Gonzales, 448 F.3d 560 (2d Cir. 2006), we were

presented with the question of whether an alien’s conviction for assaulting a police officer in

violation of CGS § 53a-167c(a)(1) categorically amounted to a “crime of violence” under 18

U.S.C. § 16(b),3 thus rendering the alien removable as an aggravated felon. The petitioner in

Canada argued, as a threshold matter, that “because CGS § 53a-167c(a)(1) does not delineate the

various categories of public safety employees covered in the statu[t]e in separate subsections, the

statute cannot be cleanly divided between conduct that is categorically a crime of violence and

conduct that is not categorically a crime of violence.” Id. at 567. We rejected that argument,

noting that “the various categories of public safety officers protected by the statute are listed

sequentially, each separated by a comma, and are phrased in the disjunctive.” Id. at 568. Thus,

we concluded: “CGS § 53a-167c(a)(1) is a divisible statute in that a court may look to the record

of conviction for the limited purpose of determining which public safety employee was the

subject of any assault, thereby permitting it to determine whether the alien’s conviction was

under a section of the statute that permits removal.” Id.

3

Section 16 defines the term “crime of violence” to mean:

(a) an offense that has as an element the use, attempted use, or threatened use of

physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk

that physical force against the person or property of another may be used in the

course of committing the offense.

18 U.S.C. § 16.

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We find this analysis to be fully applicable to the instant case. It was therefore

appropriate for the district court to look to Brown’s record of conviction — including the plea

transcript, see Johnson v. United States, 130 S. Ct. 1265, 1273 (2010) — to determine that

Brown was convicted of assaulting employees of the department of correction in violation of

CGS § 53a-167c(a)(1).

The question, then, is whether the district court properly concluded that a violation of this

statute, subdivided as such and analyzed categorically, is a violent felony under the ACCA’s

residual clause. For the following reasons, we hold that it is. As our recent precedents explain,

the analysis of whether an offense qualifies as a conviction for a violent felony under the

ACCA’s residual clause has two separate aspects. First, we consider whether the offense is

similar “in kind” to the enumerated offenses that precede the residual clause — i.e., burglary,

arson, extortion, and the use of explosives — in that the offense in question “typically involve[s]

purposeful, violent, and aggressive conduct.” Johnson, 616 F.3d at 89 (alteration in original)

(quoting Begay, 553 U.S. at 144-45) (internal quotation marks omitted). “Next, we must

consider whether [the offense] is similar ‘in degree of risk posed’ to those enumerated offenses.”

Id. (quoting Begay, 553 U.S. at 143).

Turning first to the question of whether Brown’s offense of conviction was similar “in

kind” to the enumerated felonies — or, in other words, involved conduct that “makes more likely

that an offender, later possessing a gun, will use that gun deliberately to harm a victim,” Begay,

553 U.S. at 145 — we are again informed by our discussion of this statute in Canada.4 Canada

4

Although Canada’s holding that assaulting a police officer in violation of this statute is

a “crime of violence” under Section 16(b) does not control our inquiry under the ACCA’s

residual clause, the issue in Canada is similar to the question presented here, and we find that

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canvassed Connecticut courts’ constructions of this statute to identify as its three constituent

elements: “(1) intent to prevent a reasonably identifiable [employee of the department of

correction] from performing his duties; (2) the infliction of physical injury to the [employee of

the department of correction]; and (3) the victim must be a[n] [employee of the department of

correction].” 448 F.3d at 565 (quoting State v. Turner, 879 A.2d 471, 475 (Conn. App. Ct.

2005)) (internal quotation marks omitted). Thus, we observed that in order to be convicted of

violating subsection (a)(1) of the statute, “the offender must injure an officer while intentionally

preventing the officer from performing his or her official duties.” Id. at 568. We note also that

the offense of conviction here likely applies primarily (if not exclusively) to assaults taking place

in prisons, where the act of injuring an employee for the purpose of preventing her from

performing her official duties tends to entail especially violent consequences. See Johnson, 616

F.3d at 92. For these reasons, we conclude that the assault of an employee of the department of

correction in violation of CGS § 53a-167c(a)(1) “typically involve[s] purposeful, violent, and

aggressive conduct.” Begay, 553 U.S. at 144-45 (internal quotation marks omitted).5

Next, we compare the degree of risk posed by the offense of conviction to that presented

by the enumerated felonies. The Supreme Court has framed this inquiry as “whether the conduct

encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk

of injury to another.” James, 550 U.S. at 208. Here, a conviction for assaulting an employee of

the department of correction in violation of CGS § 53a-167c(a)(1) requires that the victim suffer

case’s analysis of CGS § 53a-167c(a)(1) to be instructive. See Daye, 571 F.3d at 233 n.9.

5

Insofar as Brown also contends that the ACCA’s residual clause covers only property

offenses, that contention is foreclosed by our previous holdings that the scope of this clause is not

so limited. See, e.g., Daye, 571 F.3d at 236.

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physical injury. See Canada, 448 F.3d at 571 n.9. Because this offense involves the certainty of

“injury to another,” it follows that this second prong of the “violent felony” analysis was

satisfied.

For the foregoing reasons, we conclude that Brown’s conviction for assault of corrections

officers in violation of CGS § 53a-167c(a)(1) qualifies as a violent felony under the ACCA and

that his two drug convictions qualify as separate “serious drug offense[s]” thereunder. The

district court therefore did not err in imposing an enhanced sentence pursuant to the ACCA. The

judgment of the district court is AFFIRMED.

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