UNITED STATES OF AMERICA, Appellee, υ. SELBOURNE WAITE, Defendant-Appellant, HIBAH LEE, MARK GABRIEL, BOBBY MOORE, JR., ANDRE DAVIDSON, BOBBY SAUNDERS, CARMEN MOORE, TYRONE MOORE, HISAN LEE, DELROY LEE, ROBERT MORRISON, DAKWAN EDWARDS, MARQUISH JONES, MARK HART, RAHEEM TUCKER, DEMETRI YOUNG, CHRISTOPHER DIAZ, ANTHONY MICHAEL DIAZ, PAUL LOVE, AARON BIRCH, KEVIN BECKFORD, JERMELL FALZONE, LEVAR GAYLE, Defendants.
No. 18-2651
United States Court of Appeals For the Second Circuit
August 31, 2021
August Term 2020. Argued: March 1, 2021
Appeal from the United States District Court for the Southern District of New York No. 07-cr-00003, Loretta A. Preska, Judge.
Before: CABRANES, RAGGI, and SULLIVAN, Circuit Judges.
Defendant-Appellant Selbourne Waite appeals from his conviction and sentence on four counts of using a firearm in furtherance of a crime of violence, in violation of
AFFIRMED.
MICHELLE ANDERSON BARTH, The Law Office of Michelle Anderson Barth, Burlington, VT, for Defendant-Appellant.
ANDREW CHAN (Thomas McKay, on the brief), Assistant United States Attorneys,
RICHARD J. SULLIVAN, Circuit Judge:
Defendant-Appellant Selbourne Waite appeals from his conviction and sentence based in part on four counts of using a firearm in furtherance of crimes of violence – specifically, actual and attempted Hobbs Act robbery (and aiding and abetting the same) – in violation of
I. BACKGROUND
A. Offense Conduct
From approximately 1997 to 2007, Waite was a member of the Dekalb Avenue Crew (the “Crew“), a criminal organization centered around Dekalb Avenue in the Bronx that engaged in extensive drug trafficking, armed robberies, and murders. During that time, Waite sold drugs with other members of the Crew and regularly carried guns to protect the Crew‘s drug business. Waite also participated in numerous actual and attempted armed robberies, four of which are relevant to this appeal.
First, on October 4, 2004, Waite and another Crew member attempted to rob a man believed to have large amounts of cocaine and cash in a safe in his house. The victim was home, however, and when he confronted the robbers, Waite shot at him but missed. Waite and his co-conspirator successfully made away with the safe, but it turned out to be empty.
Second, on January 31, 2005, Waite and three other Crew members robbed the apartment of a rival drug trafficker. They entered the apartment brandishing firearms, and when they encountered a young woman babysitting the drug dealer‘s infant child, they tied up the babysitter and held her at gunpoint, demanding to know where the drug dealer‘s money was stashed. The robbers ultimately stole $20,000 in cash.
Third, on March 24, 2005, Waite and two other Crew members committed a robbery on Paulding Avenue in the Bronx. After Waite and the Crew members pulled up next to the victim in their car, Waite got out of the car carrying a gun and demanded money from the victim. When the victim resisted, Waite fired several shots as a threat. Waite ultimately took a bag from the victim containing $8,000 to $10,000 in cash.
B. Indictment and Trial
On February 20, 2008, Waite and other members of the Crew were charged in a thirty-five-count superseding indictment. With respect to each of the four completed and attempted robberies discussed above, Waite was charged with two counts of Hobbs Act robbery (and aiding and abetting the same), in violation of
Waite was also charged with: (1) a substantive violation of the Racketeer Influenced and Corrupt Organization Act (“RICO“),
Waite proceeded to trial, and he was convicted on all counts except for those involving the murder and attempted robbery of Bunny Campbell. As relevant to this appeal, the jury was instructed on aiding-and-abetting liability for all of the Hobbs Act robbery offenses and attempted Hobbs Act robbery offenses. The jury verdict form did not require the jury to specify whether Waite‘s
C. Original Sentencing, First Appeal, and Resentencing
On August 22, 2011, the district court (Barbara S. Jones, J.) sentenced Waite to 125 years’ imprisonment, consisting of a mandatory minimum term of 20 years’ imprisonment for the narcotics conspiracy, a mandatory minimum consecutive term of 105 years’ imprisonment for the five
Waite appealed, and on August 24, 2016, this Court affirmed his convictions and sentence in all respects except one: on appeal, the government conceded that the Supreme Court‘s decision in Dorsey v. United States, 567 U.S. 260 (2012), made clear that the Fair Sentencing Act applied retroactively to Waite‘s narcotics conspiracy conviction. Lee, 660 F. App‘x at 22. We therefore remanded for resentencing in light of Dorsey. Id. at 22–23.
On March 1, 2018, the district court (now Loretta A. Preska, J.) resentenced Waite to a term of 115 years’ imprisonment. Consistent with this Court‘s decision and Dorsey, the district court imposed a 10-year mandatory minimum term of imprisonment for Waite‘s narcotics conspiracy conviction. But other than this one change, the district court imposed the same sentence – including the mandatory minimum consecutive sentences on the
D. Present Appeal, the First Step Act, and Davis
Waite again appealed from his conviction and sentence, though not without some logistical difficulties. While Waite‘s pro se notice of appeal is dated March 3, 2018, it was not filed in the district court until September 5, 2018. According to an affidavit submitted to the district court by Waite‘s trial counsel, Waite – contrary to his counsel‘s advice – had mailed his pro se notice of appeal from the Metropolitan Detention Center “to the Clerk of Court at ‘1500 Pearl Street.‘” Aff. of Susan V. Tipograph ¶ 4, United States v. Waite, No. 07-cr-00003 (S.D.N.Y. Jan. 24, 2019), ECF No. 792-1. After Waite was returned to his designated long-term detention facility, his pro se notice of appeal was returned to him on August 14, 2018 unopened for having an incorrect address. Id. ¶ 5. Waite then re-mailed the notice of appeal to the correct address – at 500 Pearl Street – and it was docketed on September 5, 2018. Id. ¶ 6.
When Waite first filed his notice of appeal in September 2018, his original counsel filed a brief, pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that Waite‘s appeal presented no non-frivolous issues worthy of review. While Waite‘s appeal has been pending, however, two key developments have significantly changed the legal landscape surrounding
First, on December 21, 2018, the First Step Act was signed into law. See Pub. L. No. 115-391, 132 Stat. 5194. As relevant here, § 403(a) of the First Step Act eliminated so-called
Second, on June 24, 2019, the Supreme Court issued its decision in United States v. Davis, 139 S. Ct. 2319. In Davis, the Supreme Court held that one of
Following these two legal developments, we permitted Waite‘s original counsel to withdraw and appointed him new appellate counsel pursuant to the Criminal Justice Act,
II. DISCUSSION
A. Timeliness of Waite‘s Appeal
Before addressing the merits of Waite‘s challenges, we first consider whether his appeal is timely. Under Rule 4(b) of the Federal Rules of Appellate Procedure, a criminal defendant‘s “notice of appeal must be filed in the district court within 14 days after . . . the entry of either the judgment or the order being appealed.”
Under the rule established in Houston v. Lack, 487 U.S. 266 (1988), which has since been codified in the Federal Rules, see
We ultimately need not decide whether the prison mailbox rule applies to Waite‘s case, however, because the government has affirmatively waived reliance on untimeliness as a basis for dismissing Waite‘s appeal. See Gov‘t Br. at 7 n.2 (“In light of the unusual circumstances regarding the timing of [Waite‘s] notice of appeal, the [g]overnment will not assert untimeliness as a ground for dismissal of the appeal” (internal citation omitted)). The timeliness of a defendant‘s notice of appeal under Rule 4(b) is not a jurisdictional bar to considering an appellant‘s claims, even though “Rule 4(b) is mandatory and inflexible” if the government properly objects to the untimeliness of an appeal. United States v. Frias, 521 F.3d 229, 234 (2d Cir. 2008). In light of the government‘s choice to not object to Waite‘s appeal on the basis of untimeliness, we therefore exercise our discretion to reach the merits of Waite‘s challenges to his conviction and sentence.
B. Waite‘s Davis Challenges
Waite attacks four of his
Waite‘s Davis challenges fail because we recently confronted and rejected these same arguments in United States v. McCoy, 995 F.3d 32 (2d Cir. 2021). Like Waite, the defendants in McCoy argued that their
aiding and abetting a crime of violence is equivalent to one predicated on the commission of a crime of violence as a principal, so the defendants’
C. Waite‘s Eighth Amendment Challenge Based on the First Step Act
Waite next argues that, even if Davis does not render his
shows that his sentence is disproportionately long as compared to the severity of his crimes of conviction, since the First Step Act “represents the nation‘s trend toward more humane sentences for [§] 924(c) offenses.” Waite‘s Br. at 49. While we agree with Waite that the First Step Act marked a sea change in federal sentencing practices, the passage of that Act alone does not render Waite‘s sentence cruel and unusual within the meaning of the Eighth Amendment.
The Eighth Amendment prohibits “cruel and unusual punishments.”
(Kennedy, J., concurring in part and concurring in the judgment) (tracing the history of the Supreme Court‘s “narrow proportionality principle“).9
Where a defendant argues that his term-of-years sentence is disproportionate to his crime of conviction, this Court applies a two-step analysis. First, we “compar[e] the gravity of the offense and the severity of the sentence.” Reingold, 731 F.3d at 211 (quoting Graham, 560 U.S. at 60). In “the rare case in which this threshold comparison leads to an inference of gross disproportionality,” we proceed to the second step, at which we “compare the defendant‘s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” Id. (internal quotation marks and alterations omitted). “Only if this comparative analysis validates an initial judgment that the sentence is grossly disproportionate will the sentence be deemed cruel and unusual.” Id. (internal quotation marks and alterations omitted).
“[O]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [have been] exceedingly rare.” Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring in part and concurring in the judgment) (internal quotation marks omitted). Moreover, we have held that “[l]engthy prison sentences, even those that exceed any conceivable life expectancy of a convicted defendant, do not violate the Eighth Amendment‘s prohibition against cruel and unusual punishment[s] when based on . . . statutorily mandated consecutive terms.” United States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003). This is because “statutorily mandated sentences represent not the judgment of a single judge but the collective wisdom of the . . . Legislature and, as a consequence, the . . . citizenry.” Reingold, 731 F.3d at 220 (internal quotation marks omitted).
As an initial matter, although Waite‘s Eighth Amendment challenge to his sentence focuses on the First Step Act as a reflection of evolving standards of decency in society, at times in his briefing, Waite also appears to challenge the proportionality of his mandatory minimum 115-year sentence outright. To the extent that Waite does so, his argument is squarely foreclosed by this Court‘s Eighth Amendment jurisprudence. Indeed, we have repeatedly rejected Eighth Amendment challenges to actual or de facto life sentences imposed for serious criminal conduct comparable to that for which Waite was convicted. See, e.g., United States v. Caracappa, 614 F.3d 30, 44-45 (2d Cir. 2010) (affirming 80-year sentence for drug
offense conduct – which included participating in a racketeering enterprise, conspiring to distribute narcotics and to commit robberies, committing a number of specific robberies, and using firearms in furtherance of those crimes – does not lead to an inference of gross disproportionality.
That leaves Waite’s “evolving standards of decency” argument, premised on the fact that, since his resentencing, Congress has amended
Indeed, if we were to accept Waite’s challenge to his sentence premised on the First Step Act, every non-retroactive
Notably, after passage of the Fair Sentencing Act, several of our sister circuits have rejected Eighth Amendment challenges analogous to the one Waite raises here. See United States v. Blewett, 746 F.3d 647, 660 (6th Cir. 2013) (en banc); United States v. Lowe, 498 F. App’x 782, 786 (10th Cir. 2012); United States v. Speed, 656 F.3d 714, 720 (7th Cir. 2011). As the Sixth Circuit explained in its en banc decision in Blewett, “the Eighth Amendment is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is [] adopted, a theory that would have the perverse effect of discouraging lawmakers from ever lowering criminal sentences.” 746 F.3d at 660 (emphasis in original).
Although Blewett concerned the Fair Sentencing Act’s reduced mandatory minimum penalties for crack cocaine offenses, see id. at 649, we think that the same reasoning applies with equal force to the First Step Act’s amendments to
D. Waite’s Request for Remand in the Absence of a Sentencing Error
Finally, Waite argues that, even if his conviction and sentence are legally sound, we should nonetheless remand for resentencing so that he may take advantage of the First Step Act’s amendments to
On a handful of occasions, this Court has remanded to the district court for “clarification” or “further consideration,” despite the lack of any patent substantive or procedural error in the sentence imposed. See, e.g., United States v. Brown, 935 F.3d 43, 47–48 (2d Cir. 2019) (collecting cases); United States v. Algahaim, 842 F.3d 796, 800 (2d Cir. 2016) (concluding that “the sentences were [not] imposed in error” but nonetheless remanding “to permit the sentencing judge to consider whether the significant effect of the loss enhancement, in relation to the low base offense level, should result in a non-Guidelines sentence”). In these cases (which are exceedingly rare), this Court typically has not articulated a specific procedural mechanism for its remand, but in each, it appears that the primary motivation for remanding for resentencing (or “clarification”) was a recent development in the law that prompted the panel to doubt whether the district court was fully aware of its sentencing discretion.
In Brown, for example, we considered the Supreme Court’s recent decision in Dean v. United States, 137 S. Ct. 1170 (2017), which held that a sentencing judge is not prohibited from considering the severity of a mandatory consecutive minimum penalty when sentencing a defendant on a separate count. See Brown, 935 F.3d at 46. Dean had been decided before the district court sentenced the defendant, but because “neither the prosecutor nor the defense counsel called Dean to the attention of the sentencing judge,” the panel was “uncertain whether [the sentencing judge] was aware of the discretion permitted by Dean.” Id. at 47. This was particularly true, we explained in Brown, because Dean abrogated an earlier Second Circuit decision holding to the contrary. See Brown, 935 F.3d at 46 (citing United States v. Chavez, 549 F.3d 119, 135 (2d Cir. 2008)). Accordingly, we concluded that “a remand for resentencing is appropriate in light of our now-abrogated decision in Chavez and the failure of both counsel and the Probation Office to bring Dean to the [d]istrict [c]ourt’s attention.” Id. at 49.
Waite’s case is entirely distinguishable from Brown and the line of cases it represents. There can be no argument that the district court here failed to understand its sentencing discretion. Indeed, the district court largely had no discretion to exercise; it imposed the mandatory minimum sentence dictated by Waite’s convictions following a limited remand after Waite’s first appeal.
Waite argues, however, that his case is most analogous to a single outlier case that did not involve a remand for “clarification” of a sentence, United States v. Jones, 878 F.3d 10 (2d Cir.), amended (2d Cir. Oct. 5, 2017). In Jones, we initially vacated the defendant’s sentence on the grounds that the residual clause of § 4B.1.1(a) of the Sentencing Guidelines was unconstitutional. Id. at 14. Before the district court could resentence the defendant, however, the Supreme Court granted certiorari on that same issue in Beckles v. United States, 137 S. Ct. 886 (2017), so this Court vacated its opinion. Jones, 878 F.3d at 14. In Beckles, the Supreme Court then upheld the residual clause of § 4B1.1(a), but by then the Sentencing Commission had already revised the Guidelines to remove that provision. Id. at 14 & n.1. Thus, despite this amendment to the Guidelines, Beckles foreclosed the defendant’s challenge in Jones, prompting this Court to issue a second
Nevertheless, after the Jones panel issued its second decision, “it was called to [the Court’s] attention that
Waite contends that the “timing quirks” in his case have likewise yielded a disproportionately long sentence compared to similarly situated defendants because the First Step Act, which would have significantly reduced the applicable mandatory minimum penalty for his
First, it is not even clear that Waite would be subject to a lower mandatory minimum sentence on remand. In Jones, the Court considered a provision of the advisory Guidelines. See id. at 14. Thus, even though the district court on remand was required to calculate the defendant’s Guidelines range as it existed at the time he was originally sentenced, see
Second, the procedural history of Waite’s case is markedly different from the one presented in Jones. In that case, due to the timing of this Court’s first opinion, the defendant narrowly missed being resentenced in the context of a substantively lower applicable Guidelines range. See Jones, 878 F.3d at 23-24 (Calabresi, J., concurring). Here, Waite’s original sentencing occurred in 2011, over seven
Finally, as with his Eighth Amendment challenge, Waite’s request for a sentencing remand even though the district court did not err in computing his sentence effectively asks this Court to circumvent the choice of Congress when it decided not to make § 403(a) of the First Step Act fully retroactive. While various courts of appeals are split on whether § 403(a) applies at resentencing following a remand, they are unanimous in holding that “First Step Act § 403 does not extend to defendants who were sentenced prior to the Act’s enactment but ha[ve] not yet exhausted their direct appeals.” United States v. Henry, 983 F.3d 214, 220 (6th Cir. 2020) (collecting cases). We recently joined our sister circuits on this issue, explaining that, “[h]ad Congress wanted, it could have applied the revised penalty structure of Section 403(a) of the First Step Act to sentences that were not yet final (including cases . . . [that are] still pending on direct appeal).” Eldridge, 2 F.4th at 41. Congress opted for a different approach, however, and “keyed the new law to whether the sentence had ‘not been imposed’ as of the date of the enactment.” Id. Thus, in Eldridge, we held that the defendant, “whose sentence was imposed before the passage of the First Step Act” and whose case was still pending on direct appeal, “[was] not entitled to the lower sentence” yielded by the First Step Act’s amendments to
As in Eldridge, Waite’s case is still pending on direct appeal, and the First Step Act was enacted after his (revised) sentence was imposed by the district court. Holding that Waite’s case should be remanded again for the district court to take into account the First Step Act would therefore create the very sentencing disparity that Waite argues we should avoid, since the defendants in Eldridge and the analogous cases from our sister circuits – who, like Waite, were sentenced before enactment of the First Step Act – were unable to benefit from its provisions.
Indeed, in United States v. Cruz-Rivera, 954 F.3d 410 (1st Cir. 2020), the First Circuit declined to grant the same form of relief that Waite seeks here, albeit through a different procedural vehicle. In that case, the First Circuit had affirmed the defendant’s
III. CONCLUSION
We have reviewed all arguments raised by Waite on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the district court’s judgment. Specifically, we hold:
- that this Court’s recent decision in United States v. McCoy, 995 F.3d 32 (2d Cir. 2021), in which we held that attempted Hobbs Act robbery and aiding and abetting Hobbs Act robbery categorically qualify as crimes of violence, precludes Waite’s challenge to his
§ 924(c) convictions under United States v. Davis, 139 S. Ct. 2319 (2019); - that the passage of the First Step Act does not render Waite’s sentence cruel and unusual in violation of the Eighth Amendment; and
- that the passage of the First Step Act does not otherwise warrant remand to the district court for another resentencing.