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Date: 09-18-2021

Case Style:

United States of America v. SELBOURNE WAITE

Case Number: 18-2651


Court: United States Court of Appeals For the Second Circuit

Plaintiff's Attorney: ANDREW CHAN (Thomas McKay, on the brief), Assistant
United States Attorneys, for Audrey Strauss, United
States Attorney for the Southern District of New York

Defendant's Attorney:

New York, NY - Criminal defense Lawyer Directory


New York, New York - Criminal defense lawyer represented defendant with four counts of using a firearm in furtherance of a crime of violence charges.

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.
Finally, on June 9, 2005, Waite and two other Crew members attempted to
rob three suspected drug dealers of approximately five pounds of marijuana.
When the robbery went awry, one of Waite’s co-conspirators fired his gun in the
air to give Waite and the other co-conspirator an opportunity to get away.
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 18
U.S.C. §§ 1951 and 2; two counts of attempted Hobbs Act robbery (and aiding and
abetting the same), in violation of 18 U.S.C. §§ 1951 and 2; and four counts of using
a firearm in furtherance of those four crimes of violence, all in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2.
Waite was also charged with: (1) a substantive violation of the Racketeer
Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. §§ 1961, 1962(c);
(2) RICO conspiracy, in violation of 18 U.S.C. § 1962(d); (3) conspiracy to traffic
narcotics, in violation of 21 U.S.C. § 846; (4) conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 1951; and (5) use of a firearm in furtherance of
the charged narcotics conspiracy, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.
Finally, Waite was charged with four crimes premised on the murder and
attempted robbery of Bunny Campbell, a suspected rival drug dealer: (1) murder
in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (2) attempted
Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951 and 2; (3) use of a firearm in
furtherance of a crime of violence (the attempted Hobbs Act robbery), in violation
of §§ 924(c)(1)(A) and 2; and (4) causing death with a firearm in the course of a
§ 924(c) offense, in violation of 18 U.S.C. §§ 924(j)(1) and 2.1
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 § 924(c)
convictions were predicated on an aiding-and-abetting theory or on Waite’s direct
liability for those offenses.
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 § 924(c) convictions, and concurrent
1 Waite was also charged in the superseding indictment with another robbery, as well as a § 924(c)
count predicated on that robbery, but Waite was not tried on these counts, and they were
subsequently dismissed along with all other open counts from earlier indictments at the time of
Waite’s sentencing.
sentences of time served on the remaining RICO and Hobbs Act robbery counts.
In calculating this original sentence, the district court found that the Fair
Sentencing Act of 2010, Pub. 111-220, 124 Stat. 2372 (2010) (“Fair Sentencing Act”),
did not apply retroactively to Waite’s underlying offense conduct, which was
consistent with this Court’s precedent at the time. See United States v. Acoff, 634
F.3d 200, 202 (2d Cir. 2011). Accordingly, the district court determined that Waite’s
narcotics conspiracy conviction had a mandatory minimum sentence of 20 years
instead of 10 years.
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 § 924(c) counts – that it had originally
imposed in 2011.
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 18 U.S.C. § 924(c).
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 § 924(c) “stacking,” whereby multiple § 924(c) charges in the
same indictment could yield enhanced consecutive mandatory minimum
sentences under § 924(c)(1)(C) if a defendant was convicted on more than one of
the charged § 924(c) counts. See United States v. Eldridge, 2 F.4th 27, 40 (2d Cir.
2021). When Waite was originally sentenced in 2011 (and when he was
resentenced in March 2018), his second and subsequent § 924(c) convictions each
carried an additional 25-year mandatory minimum consecutive sentence. If Waite
had been sentenced after passage of the First Step Act, however, his second and
subsequent § 924(c) convictions would have required consecutive mandatory
minimum sentences of five years each.2 See 18 U.S.C. § 924(c)(1)(A)(i); see also id.
2 Although Waite’s superseding indictment alleged that a gun was either brandished or fired in
the commission of each of the four predicate crimes of violence – which would have yielded
seven- or ten-year consecutive sentences, respectively, see 18 U.S.C. § 924(c)(1)(A)(ii)–(iii) – the
jury was not asked to issue a special verdict finding that the guns were brandished or fired.
Consequently, the mandatory minimum consecutive sentence for each would now be five years.
§ 924(c)(1)(C) (as amended by Section 403(a) of the First Step Act, 132 Stat. at 5221–
22). The upshot is this: if Waite were convicted of precisely the same charges and
sentenced for the first time today, he would face a mandatory minimum term of
30 years’ imprisonment rather than 115 years’ imprisonment.3
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
§ 924(c)’s definitions of a predicate crime of violence, the so-called “residual
clause,” 18 U.S.C. § 924(c)(3)(B), was unconstitutionally vague. 139 S. Ct. at 2323–
24, 2336. After Davis, only offenses that qualify as crimes of violence under the
still-valid “elements clause,” 18 U.S.C. § 924(c)(3)(A), can serve as predicate crimes
of violence under § 924(c)(1)(A). See Eldridge, 2 F.4th at 36.
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, 18 U.S.C. § 3006A. We also granted Waite’s request to submit
3 This calculation assumes that Waite was properly sentenced to a 10-year mandatory minimum
sentence on the narcotics conspiracy count, which Waite does not challenge on appeal.
a supplemental pro se brief raising additional arguments beyond those in his
counseled brief.4
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.” Fed. R. App. P. 4(b)(1)(A)–(b)(1)(A)(i). Waite’s notice of appeal was
dated March 3, 2018 – within 14 days of his judgment of conviction filed on March
2, 2018 – but it was not filed in the district court until September 5, 2018, because
Waite had originally mailed the notice of appeal from prison to the incorrect
4 In his pro se opposition to his original counsel’s Anders brief, Waite argued that his original
counsel “rendered ineffective assistance of appellate counsel to [Waite] in this instant appeal.”
Waite’s Anders Opp’n at 1. In his subsequently filed supplemental pro se brief, however, Waite
no longer presses that claim. To the extent that Waite still intends to raise his ineffective assistance
argument, we decline to address that issue on direct appeal, without prejudice to Waite raising it
in a collateral proceeding. See United States v. Gaskin, 364 F.3d 438, 467–68 (2d Cir. 2004) (“This
[C]ourt is generally disinclined to resolve ineffective assistance claims on direct review
. . . because the district court is ‘best suited to developing the facts necessary to determining the
adequacy of representation . . . .’” (quoting Massaro v. United States, 538 U.S. 500, 505 (2003))).
Under the rule established in Houston v. Lack, 487 U.S. 266 (1988), which has
since been codified in the Federal Rules, see Fed. R. App. P. 4(c)(1), “a pro se
prisoner’s notice of appeal is deemed ‘filed’ at the moment of delivery to prison
authorities for forwarding to the district court.” Walker v. Jastremski, 430 F.3d 560,
562 (2d Cir. 2005) (quoting Houston, 487 U.S. at 270). This Court has not yet
decided whether this so-called “prison mailbox rule” applies to a case such as
Waite’s, where (1) the prisoner is represented by counsel at the time the notice of
appeal is mailed; and (2) the untimely filing is due to the prisoner’s use of an
incorrect mailing address, rather than to delays in a prison’s mail system beyond
a prisoner’s control. But see id. at 563 (“Our cases cast considerable doubt on the
proposition that Houston applies to delays other than those that derive directly
from the fact of incarceration and from problems involving prison mail.”);
Knickerbocker v. Artuz, 271 F.3d 35, 37 (2d Cir. 2001) (declining to apply the prison
mailbox rule where, “unlike the situation addressed in Houston, the delay . . . [was]
not attributable to prison officials”).
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 § 924(c) convictions (on Counts 25, 26, 27, and 32 of
the fourth superseding indictment) on the grounds that (1) attempted Hobbs Act
robbery and (2) aiding and abetting an attempted or successful Hobbs Act robbery
no longer serve as valid predicate crimes of violence for a § 924(c) conviction after
the Supreme Court’s decision in Davis. Because Waite did not raise these
challenges to his convictions before the district court, as he concedes, we review
them only for plain error. See Eldridge, 2 F.4th at 36 (citing Fed. R. Crim. P. 52(b)).5
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 § 924(c) convictions were invalid
because, after Davis, attempted Hobbs Act robbery and attempted or actual Hobbs
Act robbery premised on an aiding-and-abetting theory did not constitute crimes
of violence under the still-valid “elements clause” of § 924(c). 995 F.3d at 55–57.
We were unpersuaded by both of these arguments. First, we held that attempted
Hobbs Act robbery “qualifies as a crime of violence under § 924(c)” even after
Davis. Id. at 57.6 Second, we concluded that a § 924(c) conviction predicated on
5 “Before an appellate court can correct an error not raised [in the district court], there must be
(1) error, (2) that is plain, and (3) that affects substantial rights.” Eldridge, 2 F.4th at 36 (internal
quotation marks omitted). “If all three conditions are met, an appellate court may then exercise
its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 36–37 (internal quotation marks
omitted). It is the defendant’s burden to establish each of these four requirements for plain-error
relief, “including that his substantial rights were affected.” Id. at 37 (citing Greer v. United States,
141 S. Ct. 2090, 2097 (2021)). Here, the standard of review is ultimately immaterial because we
conclude that the district court did not err in entering a judgment of conviction on Waite’s § 924(c)
6 We also reaffirmed our previous holding in United States v. Hill, 890 F.3d 51 (2d Cir. 2018), that
substantive Hobbs Act robbery is a crime of violence, explaining that “Hill’s conclusion . . . was
not eroded by the Supreme Court’s subsequent ruling in Davis.” McCoy, 995 F.3d at 54. In his
supplemental pro se brief, Waite appears to argue that his § 924(c) convictions predicated on
substantive Hobbs Act robbery (even in the absence of an aiding-and-abetting theory) are invalid
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’ § 924(c)
convictions based on their guilt as aiders and abettors of Hobbs Act robbery and
attempted robbery were not error. Id. at 58. Our decision in McCoy thus forecloses
Waite’s challenges to his convictions and sentence premised on Davis.7
C. Waite’s Eighth Amendment Challenge Based on the First Step Act
Waite next argues that, even if Davis does not render his § 924(c) convictions
invalid, his 115-year term of imprisonment violates the Eighth Amendment’s bar
on cruel and unusual punishments. We generally review de novo whether a
sentence violates the Eighth Amendment. See United States v. Varrone, 554 F.3d 327,
331 (2d Cir. 2009).8 Specifically, Waite claims that the passage of the First Step Act
in light of Davis. But Waite’s argument is squarely foreclosed by Hill and McCoy. See also United
States v. Barrett, 937 F.3d 126, 128 (2d Cir. 2019) (“Hobbs Act robbery . . . can be identified as a
crime of violence under § 924(c)(3)(A) applying the traditional, elements only, categorical
approach not at issue in Davis.”).
7 The Supreme Court recently granted certiorari on the question of whether attempted Hobbs Act
robbery remains a crime of violence following Davis. See United States v. Taylor, No. 20-1459, 2021
WL 2742792, at *1 (U.S. July 2, 2021). We remain bound by McCoy, however, “unless and until
[that decision is] reversed by the Supreme Court or by this court sitting en banc.” United States v.
Ng Lap Seng, 934 F.3d 110, 133 n.25 (2d Cir. 2019).
8 In a single footnote, the government argues that Waite’s Eighth Amendment challenge is barred
by the mandate rule because (1) even though Waite raised the challenge at his first sentencing, he
did not press it during his first appeal and (2) this Court issued a limited remand following that
appeal. See Gov’t Br. at 32 n.12. Because the government failed to develop this argument more
fully in its brief, however, we decline to address it here. See City of New York v. Mickalis Pawn
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.” U.S.
Const. amend. VIII. “In identifying cruel and unusual punishments, the Supreme
Court has not limited itself to historical conceptions of impermissible sanctions,
but has looked to the evolving standards of decency that mark the progress of a
maturing society.” United States v. Reingold, 731 F.3d 204, 210 (2d Cir. 2013)
(internal citation and quotation marks omitted). Accordingly, “[a] punishment
will be deemed ‘cruel and unusual’ not only when it is ‘inherently barbaric,’ but
also when it is ‘disproportionate to the crime.’” Id. (quoting Graham v. Florida, 560
U.S. 48, 59 (2010)); see also Harmelin v. Michigan, 501 U.S. 957, 997–98 (1991)
Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“We ordinarily deem an argument to be forfeited
where it has not been sufficiently argued in the briefs, such as when it is only addressed in a
footnote.” (internal citation and quotation marks omitted)).
(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).
9 As both this Court and the Supreme Court have recognized, Justice Kennedy’s concurrence in
Harmelin is “‘controlling’ in its discussion of constitutional proportionality,” under the rule
established in Marks v. United States, 430 U.S. 188 (1977). Reingold, 731 F.3d at 210 n.11 (quoting
Graham, 560 U.S. at 59); see also Marks, 430 U.S. at 193 (“When a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds.” (internal quotation marks 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 trafficking offenses integral to broader pattern of criminal
conduct); United States v. Snype, 441 F.3d 119, 152 (2d Cir. 2006) (affirming life
sentence for recidivist defendant convicted of violent bank robbery). Moreover,
as the First Circuit recently explained when rejecting an Eighth Amendment
challenge nearly identical to Waite’s, “[n]o circuit has held that consecutive
sentences under § 924(c) violate the Eighth Amendment.” United States v. RiveraRuperto, 852 F.3d 1, 18 (1st Cir. 2017) (internal quotation marks omitted) (collecting
cases and affirming 161-year sentence, 130 years of which were attributable to
mandatory minimum penalties under § 924(c)).10 In short, the gravity of Waite’s
10 We likewise reject Waite’s arguments, raised in his supplemental pro se brief, that the version
of § 924(c)(1) in effect when he was resentenced – which mandated consecutive 25-year terms for
each “second or subsequent conviction” under § 924(c), see 18 U.S.C. § 924(c)(1)(C)(i) (2011) – was
“unconstitutionally vague” and “unconstitutional because it unfairly target[ed] minorities,
specifically African-Americans, such as [Waite].” Waite’s Pro Se Br. at 9, 12. Waite’s vagueness
challenge is foreclosed by the Supreme Court’s decision in Deal v. United States, 508 U.S. 129
(1993), which held that the phrase “second or subsequent conviction” in a previous version of
§ 924(c)(1) was not “facially ambiguous.” Id. at 131; see also United States v. Hungerford, 465 F.3d
1113, 1117–18 (9th Cir. 2006) (rejecting claim that § 924(c)(1) was “unconstitutionally vague” in
light of Deal). As for Waite’s argument based on the disparate impact of § 924(c)(1), the only case
he cites in support is then-Judge Gleeson’s decision in United States v. Holloway, No. 01-cv-1017,
2014 WL 1942923 (E.D.N.Y. May 14, 2014), which Waite claims “concluded . . . that the stacking
penalty provision of [§ 924(c)] was unconstitutional, as it unfairly targeted black defendant[s].”
Waite’s Pro Se Br. at 11 n.2. But Judge Gleeson did not hold that § 924(c)(1) was unconstitutional;
rather, the defendant’s § 924(c) convictions were vacated on consent of the government and were
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 § 924(c)(1)(C)
through the First Step Act to eliminate the type of § 924(c) “stacking” that led to
his 115-year mandatory minimum sentence. See Eldridge, 2 F.4th at 40 (explaining
that, after passage of the First Step Act, “defendants whose § 924(c) convictions
resulted from a single prosecution . . . [are] no longer . . . subject to the enhanced”
mandatory consecutive penalty provided by § 924(c)(1)(C)). But this legislative
change does not transform what would otherwise be a constitutionally sound
sentence into a cruel and unusual one, for the simple reason that Congress
expressly declined to make the First Step Act’s amendment to § 924(c)(1)(C) fully
retroactive. See First Step Act, § 403(b), 132 Stat. at 5222 (providing that the First
not altered on constitutional grounds. See United States v. Holloway, 68 F. Supp. 3d 310, 314–16
(E.D.N.Y. 2014). Because here the government did not consent to vacating Waite’s § 924(c)
convictions as it did in Holloway, that decision (even if it were binding on us, which it is not)
provides no basis for vacating Waite’s sentence. Accord United States v. Owens, 996 F.3d 755, 757
n.1 (6th Cir. 2021).
Step Act’s amendments to § 924(c)(1)(C) apply only to an “offense that was
committed before the date of enactment of this Act, if a sentence for the offense
has not been imposed as of such date of enactment”); see also Eldridge, 2 F.4th at 40.
Indeed, if we were to accept Waite’s challenge to his sentence premised on
the First Step Act, every non-retroactive change in criminal penalties would risk
running afoul of the Eighth Amendment merely because those defendants
sentenced before the change faced different penalties than those sentenced after
the legislative change. But as the Supreme Court has explained, “disparities,
reflecting a line-drawing effort, will exist whenever Congress enacts a new law
changing sentences (unless Congress intends re-opening sentencing proceedings
concluded prior to a new law’s effective date).” Dorsey, 567 U.S. at 280. This is the
nature of Congress’s authority to decide the retroactive effect of new statutory
provisions. Unless Congress provides otherwise, diminished penalties in criminal
statutes do not apply retroactively by default. See id. at 272 (citing Act of Feb. 25,
1871, § 4, 16 Stat. 431, 432 (1871), codified at 1 U.S.C. § 109, the general “federal
saving statute”); see also Eldridge, 2 F.4th at 41 (contrasting “judicial
pronouncements of new constitutional rules of criminal procedure[, which] are to
be applied in cases on direct appeal,” with “congressional statutes to which the
general saving statute applies” (internal quotation marks omitted)). Thus, we
reject the contention that the passage of a new statute lessening the penalties
applicable to a crime suggests that pre-enactment sentences for the same crime run
afoul of the Eighth Amendment.
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 § 924(c).
The First Step Act marked a significant change in the mandatory minimum
sentences applicable for § 924(c) convictions, but Congress made a deliberate
choice not to give those amendments fully retroactive effect. That decision – no
less than the reforms to § 924(c) themselves – “represent[s] . . . the collective
wisdom of the . . . Legislature and, as a consequence, the . . . citizenry.” Reingold,
731 F.3d at 220 (internal quotation marks omitted). Accordingly, we will not
disturb that legislative choice, and we reject Waite’s Eighth Amendment challenge
to his sentence premised on the First Step Act.
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 § 924(c)(1)(C), which apply if a
sentence has not yet been “imposed” as of the effective date of the Act. See Eldridge,
2 F.4th at 40. Waite asserts that “the district court should have the opportunity to
reconsider its sentence de novo in light of . . . unwarranted sentencing disparities”
caused by the “unfortunate timing” of his resentencing. Waite’s Br. at 45–46. In
other words, because Waite would face a drastically reduced mandatory
minimum penalty if he were sentenced for the first time today, after the passage
of the First Step Act, Waite contends that “this Court should remand to the district
court for reconsideration of its sentence in light of the [First Step Act].” Id. at 49.
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 nowabrogated 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 decision
that affirmed the defendant’s original sentence. See United States v. Jones, No. 15-
1518-cr, slip op. at 21 (2d Cir. Sept. 11, 2017).
Nevertheless, after the Jones panel issued its second decision, “it was called
to [the Court’s] attention that 28 U.S.C. § 2106 permits affirmances and remands
for further proceedings in the interest of justice, and has been applied in criminal
situations.” Jones, 878 F.3d at 24 n.6 (Calabresi, J., concurring). Apparently
prompted by this revelation, the panel majority withdrew its second decision and
issued a third decision affirming the sentence, but also remanding to the district
court “for further consideration as may be just under the circumstances.” Id. at 20.
The lead opinion in Jones does not explain why the interest of justice warranted
remanding to the district court. But in a separate concurrence, Judge Calabresi,
joined by Judge Hall, wrote that remand was warranted because, “as a result of
timing quirks . . . , Jones receive[d] a very, very high sentence in contrast with
almost every similarly situated defendant.” Id. at 24 (Calabresi, J., concurring).
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 § 924(c) convictions, was enacted nine
months after he was resentenced. He argues that we should therefore take a
similar course to the one taken in Jones: affirm Waite’s sentence yet remand for
further resentencing “in the interest of justice.” Id. at 24 n.6 (Calabresi, J.,
concurring). We decline to do so. For at least three reasons, Waite’s case is
distinguishable from Jones, and we conclude that remanding for resentencing
would be improper based on the circumstances presented here.
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 18 U.S.C. § 3742(g)(1), the district court was at least
empowered to impose a different sentence on remand. Here, by contrast, it is an
open question in this Circuit whether the First Step Act’s amendments to § 924(c)
“stacking” apply when a defendant is resentenced after a remand from this Court.
See Eldridge, 2 F.4th at 41 n.17. Our sister circuits have divided on that question,
see id. (collecting cases), so it is not a foregone conclusion that Waite would be
entitled to a different mandatory minimum sentence on remand.11
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 years before the passage of the First Step Act and its amendment to
§ 924(c)(1)(C). If, at that original sentencing, the district court had applied the Fair
11 Moreover, even if we were to hold that § 403(a) of the First Step Act applies on remand after a
defendant’s original sentence has been vacated, it does not automatically follow that the same
would be true if we were to affirm yet remand, as this Court did in Jones. Cf. United States v. Bethea,
841 F. App’x 544, 551 (4th Cir. 2021) (holding that the First Step Act’s amendments to
§ 841(b)(1)(A) applied at a resentencing because the “vacated sentence” imposed prior to
enactment of the First Step Act was “a legal nullity” (emphasis added)). Here, there is clearly no
vacated sentence.
Sentencing Act retroactively (which would have yielded a mandatory minimum
115-year sentence instead of a 125-year sentence), this case would have concluded
in 2016 when this Court affirmed Waite’s sentence in all other respects. See Lee,
660 F. App’x at 22–23. Thus, it is only through a series of highly unusual
developments that Waite’s case is still pending on direct review more than 10 years
after he was originally sentenced – far longer than the time between sentencing
and remand in Jones. See Jones, 878 F.3d at 13–14.
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 § 924(c) that eliminated “stacking.” Id.
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 § 924(c) convictions shortly before enactment of the First Step Act.
Id. at 411. The defendant then moved for the First Circuit to recall its mandate and
remand for resentencing in light of the First Step Act. Id. at 412. The First Circuit
denied the motion, reasoning that, “consistent with the usual practice in the
federal system, Congress did not intend the amendment in § 403(a) of the First
Step Act to compel the ‘re-opening [of] sentencing proceedings concluded prior to
[the] new law’s effective date.’” Id. at 413 (quoting Dorsey, 567 U.S. at 280). The
same logic applies here: even if we were to assume that Waite could claim the
benefits of § 403(a) of the First Step Act, remanding to the district court in the
absence of a defect in Waite’s conviction or sentence would improperly displace
Congress’s decision not to make § 403(a) of the First Step Act fully retroactive or
at least applicable to cases pending on direct appeal. Accordingly, we decline to
remand to the district court for resentencing in light of the First Step Act.

Outcome: 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:

(1) 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);

(2) that the passage of the First Step Act does not render Waite’s sentence
cruel and unusual in violation of the Eighth Amendment; and

(3) that the passage of the First Step Act does not otherwise warrant
remand to the district court for another resentencing.

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