12 F.4th 204
2d Cir.2021Background
- Selbourne Waite was a member of a Bronx crew who committed extensive drug trafficking and multiple armed robberies; four armed robberies/attempts (2004–2005) involving firearms are central to the appeal.
- Waite was convicted of numerous counts including several Hobbs Act robberies (and aiding and abetting) and four counts of using a firearm in furtherance of crimes of violence, in violation of 18 U.S.C. § 924(c).
- Originally sentenced in 2011 to 125 years, this Court remanded in 2016 (Fair Sentencing Act retroactivity issues) and Waite was resentenced in March 2018 to a mandatory-minimum 115 years.
- While Waite’s appeal was pending, Congress enacted the First Step Act (Dec. 2018), which narrowed § 924(c) “stacking” enhancements, and the Supreme Court decided Davis (June 2019), invalidating § 924(c)’s residual clause.
- Waite argued (1) Davis invalidates his § 924(c) predicates (attempted Hobbs Act robbery and aiding/abetting), (2) his 115-year sentence is cruel and unusual in light of the First Step Act, and (3) the case should be remanded so the district court can reconsider his sentence under the First Step Act.
- The Second Circuit relied on its decision in United States v. McCoy and related precedent, rejected Waite’s challenges, and affirmed the conviction and 115-year sentence.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Waite) | Held |
|---|---|---|---|
| 1. Whether Waite’s § 924(c) convictions (predicated on attempted Hobbs Act robbery and aiding/abetting Hobbs Act robbery) are invalid after United States v. Davis | McCoy controls: attempted Hobbs Act robbery and aiding/abetting qualify as crimes of violence under § 924(c)’s elements clause | Davis renders § 924(c) predicates invalid because the residual clause was struck down | Affirmed: convictions stand; McCoy forecloses Davis-based challenge |
| 2. Whether Waite’s 115-year mandatory sentence violates the Eighth Amendment in light of the First Step Act’s reduction of § 924(c) stacking | The sentence is statutory and not grossly disproportionate; legislative choice not unconstitutional | First Step Act reflects evolving standards of decency; disparities make the sentence cruel and unusual | Denied: no Eighth Amendment violation; legislative non-retroactivity does not render the earlier sentence cruel |
| 3. Whether the case should be remanded for resentencing so the district court can apply the First Step Act (or otherwise reconsider sentence) | Congress chose limited retroactivity; Eldridge and related precedent counsel against remand where sentence was imposed before enactment | Timing quirks justify remand so Waite can receive lower mandatory minima under the First Step Act | Denied: remand inappropriate; Congress did not make § 403(a) fully retroactive and precedent forecloses relief |
| 4. Whether Waite’s notice of appeal was timely (mailbox rule) | Government waived untimeliness objection; proceed to merits | Waite contends his pro se notice was mailed within 14 days (initially misaddressed) | Court exercised discretion to reach the merits because the government waived the timeliness defense |
Key Cases Cited
- United States v. McCoy, 995 F.3d 32 (2d Cir. 2021) (held attempted Hobbs Act robbery and aiding-and-abetting Hobbs Act robbery categorically qualify as crimes of violence under § 924(c))
- United States v. Davis, 139 S. Ct. 2319 (2019) (held § 924(c)’s residual clause is unconstitutionally vague)
- United States v. Eldridge, 2 F.4th 27 (2d Cir. 2021) (explained First Step Act § 403(a) non-application where sentence was imposed before enactment)
- Dorsey v. United States, 567 U.S. 260 (2012) (held Fair Sentencing Act applies retroactively to defendants whose sentences were not yet final)
- United States v. Reingold, 731 F.3d 204 (2d Cir. 2013) (articulated Eighth Amendment proportionality framework and "evolving standards of decency" analysis)
- Harmelin v. Michigan, 501 U.S. 957 (1991) (Kennedy concurrence supplies the narrow proportionality principle applied to non-capital sentences)