United States v. Sellers In the 1

13‐4431‐cr
United States v. Sellers
In the 1
United States Court of Appeals 2
For the Second Circuit 3
4
August Term, 2014 5
No. 13‐4431‐cr 6
U NITED S TATES OF AMERICA, 7
Appellee, 8
v. 9
JAMELL S ELLERS, 10
Defendant‐Appellant. 11
12
Appeal from the United States District Court 13
for the Eastern District of New York. 14
No. 12‐cr‐643 ― Sterling Johnson, Jr., Judge. 15
16
17
A RGUED: D ECEMBER 9, 2014 18
D ECIDED: A PRIL 27, 2015 19
20
21
Before: C ABRANES , L OHIER , and D RONEY, Circuit Judges. 22
23
24
25
26

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Appeal from the judgment of the United States District Court 1
for the Eastern District of New York (Johnson, J.), sentencing Jamell 2
Sellers principally to fifteen years’ imprisonment for violating 18 3
U.S.C. § 922(g)(1). The district court imposed a statutory mandatory 4
minimum of fifteen years after concluding that Sellers was an armed 5
career criminal under 18 U.S.C. § 924(e), part of the Armed Career 6
Criminal Act (“ACCA”). We hold that Sellers’s drug conviction 7
under New York law that resulted in a youthful offender 8
adjudication does not qualify as a predicate conviction under the 9
ACCA. Therefore, the ACCA mandatory minimum does not apply. 10
Accordingly, we REMAND to the district court for resentencing. 11
12
13
B ARRY D. L EIWANT, Federal Defenders of New 14
York, Inc., Appeals Bureau, New York, NY, for 15
Defendant‐Appellant. 16
A LIXANDRA E. S MITH (Jo Ann M. Navickas, on the 17
brief) Assistant United States Attorneys, for 18
Loretta E. Lynch, United States Attorney for the 19
Eastern District of New York, Brooklyn, NY, for 20
Appellee. 21
22
D RONEY , Circuit Judge: 23
Jamell Sellers was sentenced to fifteen years’ imprisonment 24
for being a felon in possession of a firearm and ammunition under 25
18 U.S.C. § 922(g)(1) and under 18 U.S.C. § 924(e)(1) of the Armed 26

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Career Criminal Act (“ACCA”).1 Judgment was entered on 1
November 20, 2013, in the United States District Court for the 2
Eastern District of New York (Johnson, J.). 3
Sellers contends that the application of the ACCA was error, 4
arguing that his 2001 state conviction for criminal sale of a 5
controlled substance does not qualify as one of the “three previous 6
convictions” necessary to apply the ACCA because he was 7
adjudicated as a youthful offender (“YO”) for that offense under 8
New York law. See 18 U.S.C. § 924(e)(1). Therefore, he appeals his 9
sentence of the ACCA’s statutory mandatory minimum of fifteen 10
years’ imprisonment. 11
We hold that a drug conviction under New York law that was 12
replaced by a YO adjudication is not a qualifying predicate 13
conviction under the ACCA because it has been “set aside” within 14
1 Sellers was also sentenced to four years of supervised release and a $100 special
assessment.

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the meaning of 18 U.S.C. § 921(a)(20) and New York law. 1
Accordingly, we REMAND to the district court for resentencing. 2
BACKGROUND 3
An indictment was returned on October 9, 2012, in the U.S. 4
District Court for the Eastern District of New York, alleging that on 5
September 11, 2012, Sellers possessed a firearm and ammunition and 6
had previously been convicted of a crime punishable by a term of 7
imprisonment exceeding one year, in violation of 18 U.S.C. 8
§ 922(g)(1). Sellers had been arrested by two New York City police 9
officers responding to a 911 call that a man with a handgun was 10
standing in front of a building in Brooklyn. The officers saw a man 11
who fit the description in the 911 call and, as he began walking away 12
from them, saw the handgun in his pants. Sellers was arrested, and 13
a loaded Taurus 9 mm semiautomatic pistol was seized. 14
On May 16, 2013, Sellers moved for a ruling by the district 15
court that he would not be sentenced under the ACCA if he were to 16
plead guilty. Violations of § 922(g)(1) are punishable by a maximum 17

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sentence of ten years, and there is no mandatory minimum. 18 1
U.S.C. § 924(a)(2). However, the ACCA imposes a fifteen‐year 2
mandatory minimum sentence if a person violates § 922(g)(1) and 3
has “three previous convictions by any court referred to in section 4
922(g)(1) of this title for a violent felony or a serious drug offense, or 5
both, committed on occasions different from one another.” Id. 6
§ 924(e)(1). Sellers argued that he did not qualify as an armed career 7
criminal because one of his three prior criminal convictions – from 8
when he was 17 years old – had been replaced by a YO adjudication 9
under New York law. 2 10
The Government opposed Sellers’s motion, contending that 11
resolution of the ACCA issue was premature. The Government also 12
argued that Sellers was an armed career criminal because Sellers’s 13
2 Sellers pled guilty in 2001 to criminal sale of a controlled substance on school grounds
in violation of New York Penal Law § 220.44. After his guilty plea, he was adjudicated a
YO under New York law and sentenced to five years’ probation. In 2004, Sellers was
convicted of criminal sale of a controlled substance, and his term of probation was
revoked. Sellers was resentenced to sixteen months’ to four years’ imprisonment for his
2001 conviction.

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YO adjudication for the drug offense was not excluded from 1
consideration as a “previous conviction” under the ACCA. 2
On June 7, 2013, at a status conference three days before trial 3
was to begin, the district court declined to rule on the ACCA issue, 4
reasoning that doing so would “place the court in a position of 5
negotiat[ing]” with the parties. Appellant App. 47. Sellers then pled 6
guilty that day to the one‐count indictment without a plea 7
agreement. During the plea colloquy, Sellers acknowledged that 8
(1) he had two prior felony convictions and (2) he had a third 9
conviction that resulted in a New York YO adjudication and did not 10
qualify as a conviction under the ACCA. Sellers was informed by 11
the district court that if he was found to have three qualifying 12
convictions, the ACCA would trigger the statutory mandatory 13
minimum of fifteen years and a maximum of life in prison. After 14
Sellers stated that he understood, the district court accepted Sellers’s 15
plea. 16

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The Pre‐Sentence Report (“PSR”) calculated Sellers’s 1
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range to be 168 2
to 210 months based on a Criminal History Category V and a total 3
offense level of 31, which included upward adjustments due to his 4
ACCA status. Because of the ACCA’s statutory mandatory 5
minimum, the PSR concluded that the Guidelines range increased to 6
180 to 210 months. See 18 U.S.C. § 924(e)(1). 7
Sellers filed objections to the PSR, including the portions of 8
the PSR which adopted the Government’s position that the statutory 9
mandatory minimum of fifteen years under the ACCA applied. 10
Sellers also disputed his points calculation for Criminal History V, 11
arguing that no points should be assigned for the YO adjudication, 12
and thus his Criminal History Category should be IV instead of V. 13
He also disputed the application of a Sentencing Guidelines offense 14

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level enhancement for ACCA‐sentencing under U.S.S.G. § 4B1.4.3 1
Sellers advocated for a Guidelines range of 57 to 71 months’ 2
imprisonment. In response, the Government argued that his 2001 3
conviction satisfied the ACCA and also should be counted under the 4
Guidelines for determining his Criminal History Category and for 5
applying the offense level enhancement. 6
On October 17, 2013, the district court sentenced Sellers to the 7
ACCA statutory mandatory minimum of fifteen years’ 8
imprisonment, concluding that the ACCA applied to Sellers 9
notwithstanding his YO adjudication. Sellers once again objected to 10
the ACCA mandatory minimum and the effects of the ACCA 11
determination on his Guidelines calculation. 12
Judgment was entered on November 20, 2013, and Sellers filed 13
a timely notice of appeal on the same day. 14
3 “A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C.
§ 924(e) is an armed career criminal.” U.S.S.G. § 4B1.4(a). Sellers’s offense level
increased from 24 to 33 based on that enhancement. Id. § 4B1.4(b)(3)(B).

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DISCUSSION 1
We consider two issues on this appeal. First, we determine 2
the requirements for a prior conviction for a “serious drug offense” 3
to qualify as a “previous conviction” under the ACCA. Second, we 4
evaluate Sellers’s YO adjudication for his drug offense in New York 5
to decide whether it was a “previous conviction” that would qualify 6
as an ACCA predicate conviction. 7
I. Standard of Review 8
The burden is on the government to prove the existence of a 9
qualifying conviction when seeking a sentencing enhancement 10
under the ACCA. United States v. Rosa, 507 F.3d 142, 151 (2d Cir. 11
2007). “The questions of what documents a district court may rely 12
on to determine the nature of a prior conviction and of the scope of a 13
district court’s authority to make factual findings are questions of 14
law, which we review de novo.” Id. (internal citations omitted). 15
Likewise, “[w]e review de novo questions of law relating to a district 16
court’s application of the ACCA.” See United States v. Brown, 629 17

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F.3d 290, 293, 294 (2d Cir. 2011) (reviewing de novo whether the 1
defendant’s prior conviction constitutes a “violent felony” for ACCA 2
purposes). We review for clear error the “district court’s factual 3
findings regarding the nature of the prior offense.” Id. at 293. 4
II. Qualifying Convictions Under the ACCA 5
The first question is what prior convictions qualify as 6
“previous convictions” under the ACCA. “As in all statutory 7
construction cases, we begin with ‘the language itself [and] the 8
specific context in which that language is used.’” McNeill v. United 9
States, 131 S. Ct. 2218, 2221 (2011) (alteration in original) (quoting 10
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). 11
Here, the relevant gateway to the application of the ACCA is 12
the violation of the felon in possession of a firearm statute, 18 U.S.C. 13
§ 922(g)(1). See 18 U.S.C. § 924(e). The single predicate conviction 14
necessary for a violation of § 922(g)(1) is a conviction “in any court 15
of[] a crime punishable by imprisonment for a term exceeding one 16

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year.” Id. § 922(g)(1). However, a “crime punishable by 1
imprisonment for a term exceeding one year” is further defined in 18 2
U.S.C. § 921(a)(20) as excluding “[a]ny conviction which has been 3
expunged, or set aside or for which a person has been pardoned or 4
has had civil rights restored.” Id. § 921(a)(20). Thus, § 922(g)(1) 5
excludes certain prior felony convictions. 6
Once the elements of § 922(g)(1) have been satisfied, the 7
ACCA’s increased mandatory minimum period of fifteen years’ 8
imprisonment applies if the defendant has three prior convictions 9
for violent felonies or serious drug offenses. Id. § 924(e)(1). The 10
ACCA, in describing the three prior convictions necessary for its 11
application, states that they must be “previous convictions by any 12
court referred to in section 922(g)(1),” thus adopting the § 922(g)(1) 13
definitional reference to § 921(a)(20), including its exclusions. 14
The Government argues, however, that the phrase “referred to 15
in section 922(g)(1)” in § 924(e)(1) modifies “any court” rather than 16

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“three previous convictions.” According to the Government, 1
§ 924(e)(1)’s cross reference to § 922(g)(1), therefore, means only that 2
the serious drug offense or violent felony must be a conviction in a 3
domestic court rather than a foreign court, and that § 921(a)(20)’s 4
definition of a “crime punishable by imprisonment for a term 5
exceeding one year” – with its exclusions – does not apply. We find 6
this argument unpersuasive. 7
Because § 922(g)(1) does not define “any court,” the 8
Government’s proposed construction would leave the cross 9
reference in § 924(e)(1) with no useful purpose. In order to give 10
meaning to § 924(e)(1)’s cross reference, we conclude that the phrase 11
“referred to in section 922(g)(1)” modifies “three previous 12
convictions” in § 924(e)(1). See United States v. Menasche, 348 U.S. 13
528, 538‐39 (1955) (“It is our duty to give effect, if possible, to every 14
clause and word of a statute . . . .” (internal quotation marks 15
omitted)). Accordingly, the convictions necessary for applying the 16

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ACCA invoke the further definition of “crime[s] punishable by 1
imprisonment for a term exceeding one year” in § 921(a)(20), which 2
excludes certain convictions, including those that have been “set 3
aside.” 18 U.S.C. § 921(a)(20); see United States v. Parnell, 524 F.3d 166, 4
169 (2d Cir. 2008) (per curiam) (“Convictions that are ‘set aside’ are 5
expressly exempted from the calculation of defendant’s previous 6
convictions under the ACCA . . . .”). 7
This application of the definition in § 921(a)(20) to “previous 8
convictions” in § 924(e)(1) follows the approach taken by the Fourth 9
and Ninth Circuits. See United States v. Collins, 61 F.3d 1379, 1382 10
(9th Cir. 1995) (“Section 924(e) thus incorporates the definition of 11
‘crime punishable by imprisonment for a term exceeding one year,’ 12
found in section 921(a)(20), and its exclusion of any conviction for 13
which the defendant’s civil rights have been restored.”); United 14
States v. Clark, 993 F.2d 402, 403 (4th Cir. 1993) (“[T]o bring a 15
defendant under the provisions of § 924(e) the government must 16

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show . . . the convictions are of the type referred to in 1
§ 922(g)(1) . . . . That section refers to conviction in any court of ‘a 2
crime punishable by imprisonment for a term exceeding one year,’ a 3
term in turn defined in . . . 18 U.S.C. § 921(a)(20).” (emphasis 4
added)). 5
As mentioned above, predicate convictions in § 924(e)(1) must 6
be either a “violent felony” or a “serious drug offense” as defined in 7
§ 924(e)(2). The Government also contends that even if the 8
definitional language in § 921(a)(20) (and its exclusions) applies to 9
the ACCA, it applies only to a “violent felony” and not a “serious 10
drug offense.” The Government points out that § 924(e)(2)(B) 11
includes as part of its definition of a “violent felony” “any crime 12
punishable by imprisonment for a term exceeding one year . . .” – 13
the language also found in § 922(g)(1) and § 921(a)(20) – while a 14
“serious drug offense” as defined in § 924(e)(2)(A) does not include 15
this language. However, the repetition of the phrase “crime 16

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punishable by imprisonment for a term exceeding one year” in the 1
definition of “violent felony” in § 924(e)(2)(B) and its absence in the 2
definition of “serious drug offense” in § 924(e)(2)(A) does not 3
demonstrate that Congress intended to make the cross reference in 4
§ 924(e)(1) to § 922(g)(1) (and to § 921(a)(20) and its exemptions) 5
inapplicable to “serious drug offense[s].” 6
The specific definition of “serious drug offense” states that a 7
prior drug conviction qualifies only if it was a federal or state 8
conviction “for which a maximum term of imprisonment of ten 9
years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(i), (ii). 10
Congress chose to count only more serious drug offenses with 11
maximum statutory imprisonment terms of ten years or more as 12
qualifying ACCA predicates. Repeating § 922(g)(1)’s one‐year 13
language in § 924(e)(2)(A)’s “serious drug offense” definition would 14
have contradicted Congress’ choice to count only those drug 15
offenses with at least ten‐year maximum statutory penalties. 16

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Applying § 921(a)(20)’s exclusions of certain prior felony convictions 1
to “serious drug offense” is consistent not only with the plain 2
language of the statute, but also with this statutory framework. 3
Therefore, we conclude that a conviction for a serious drug offense 4
that is excluded under § 921(a)(20) is not a qualifying conviction 5
under § 924(e)(1). 6
III. A Conviction That Is “Set Aside” 7
The next issue is whether Sellers’s New York YO adjudication 8
rendered his prior guilty plea to the underlying drug offense a 9
conviction that has been “set aside” under § 921(a)(20).4 The 10
language of that section provides that a prior offense does not 11
qualify as a conviction if it “has been expunged[] or set aside” or the 12
offender “has been pardoned or has had civil rights restored.” 18 13
4 As Sellers points out, the Government is raising for the first time the issue of whether
the YO adjudication “set aside” his conviction based on its effect under New York law.
“Arguments raised for the first time on appeal are deemed waived.” Millea v. Metro‐N.
R.R. Co., 658 F.3d 154, 163 (2d Cir. 2011). “But appeals courts may entertain additional
support that a party provides for a proposition presented below.” Eastman Kodak Co. v.
STWB, Inc., 452 F.3d 215, 221 (2d Cir. 2006). Because the issue is purely legal and does
not bear on facts specific to Sellers’s conviction, we decline to consider the argument
waived. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994).

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U.S.C. § 921(a)(20). This provision exempts from the ACCA 1
otherwise qualifying convictions. See Logan v. United States, 552 U.S. 2
23, 31‐32 (2007) (discussing the § 921(a)(20) exemptions in the 3
context of ACCA‐enhanced sentencing). We conclude that under 4
New York law, Sellers’s YO adjudication for a drug offense operates 5
to “set aside” his prior drug conviction because (1) § 921(a)(20) 6
specifically requires the district court to apply state law in making 7
that determination and (2) New York law deems such YO 8
adjudications to “set aside” convictions and does not consider YO 9
adjudications predicate convictions for sentencing enhancements in 10
New York State courts. 11
A. Section 921(a)(20) 12
1. The Meaning of “Set Aside” 13
Section 921(a)(20) sets out four ways an otherwise qualifying 14
conviction is excluded from consideration as a predicate conviction 15
under the ACCA: expungement, pardon, setting the conviction 16
aside, or restoration of civil rights. 18 U.S.C. § 921(a)(20). “Each 17

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term describes a measure by which the government relieves an 1
offender of some or all of the consequences of his conviction.” 2
Logan, 552 U.S. at 32. 3
Two of the four exclusions are relevant in the analysis here: 4
setting aside and expunging a prior conviction. “Set aside” means 5
to “annul or vacate” a judgment or an order. Black’s Law Dictionary 6
1580 (10th ed. 2014). By contrast, “expunge” means to “remove from 7
a record,” and “expungement of record” is the actual “removal of a 8
conviction . . . from a person’s criminal record.” Id. at 702. 9
We have previously recognized differences in the treatment of 10
convictions that are “set aside” and convictions that are expunged. 11
A “set aside” conviction, unlike an expunged conviction, “does not 12
eliminate all trace of the prior adjudication and allows consideration 13
of youthful offender adjudications in later proceedings[.]” See 14
United States v. Matthews, 205 F.3d 544, 548 (2d Cir. 2000); see also id. 15
at 546, 548 (holding that defendant’s New York YO adjudication 16

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“simply ‘set aside’” his prior conviction but did not “expunge” the 1
conviction for purposes of U.S.S.G. § 4A1.2); see also United States v. 2
Cuello, 357 F.3d 162, 167 (2d Cir. 2004) (describing Matthews’s 3
conclusion that a YO adjudication was not an “expunged” 4
conviction for the purposes of U.S.S.G. § 4A1.2 because “New York’s 5
youthful offender law evinced an intent only to ‘set aside’ a 6
conviction for the purposes of avoiding stigma, rather than to erase 7
all record of the conviction or to preclude its future use by courts”). 8
While a “set aside” conviction may still be considered for certain 9
purposes because it has not been fully expunged, see, e.g., Matthews, 10
205 F.3d at 548‐49, it is nonetheless excluded from consideration as a 11
predicate conviction under the ACCA, see 18 U.S.C. § 921(a)(20), 12
because of the particular language of that definitional statute. 13
2. The Requirement To Apply State Law 14
Section 921(a)(20) is explicit in requiring district courts to 15
apply state law in evaluating prior state convictions. Section 16
921(a)(20) states that “[w]hat constitutes a conviction of [a crime 17

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punishable by imprisonment for a term exceeding one year] shall be 1
determined in accordance with the law of the jurisdiction in which 2
the proceedings were held” and that “[a]ny conviction which has 3
been . . . set aside . . . shall not be considered a conviction for 4
purposes of this chapter.” 18 U.S.C. § 921(a)(20). 5
This language in § 921(a)(20) distinguishes our treatment of 6
New York YO adjudications as potential ACCA predicate 7
convictions from that of our earlier decisions that analyzed the 8
impact of such adjudications under another federal criminal statute 9
and the Sentencing Guidelines. 10
We previously held, for instance, that a New York YO 11
adjudication qualifies as a “prior conviction for a felony drug 12
offense [that] has become final” under 21 U.S.C. § 841(b) and thereby 13
increases the statutory mandatory minimum for certain drug 14
offenses. United States v. Sampson, 385 F.3d 183, 194‐95 (2d Cir. 15
2004). Although in Sampson we reviewed the New York YO statutes 16

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to determine the practical impact of a YO adjudication, we applied 1
federal law to determine whether a prior New York felony drug 2
conviction replaced by a YO adjudication constituted a “final” 3
felony drug offense under 21 U.S.C. § 841(b). See id. at 194‐95 4
(discussing 21 U.S.C. §§ 802(44), 841(b)). Unlike 18 U.S.C. 5
§ 921(a)(20), however, neither 21 U.S.C. § 841(b) nor the definition of 6
“felony drug offense” in 21 U.S.C. § 802(44) excludes otherwise 7
qualifying convictions that have been “set aside” under state law. 8
The ACCA’s incorporation of 18 U.S.C. § 921(a)(20)’s 9
exclusion for convictions “set aside” under state law also warrants 10
treating New York YO adjudications differently in the ACCA‐ 11
predicate conviction context than in our previous decisions 12
interpreting certain provisions in the U.S. Sentencing Guidelines. In 13
United States v. Matthews, we held that a prior New York YO 14
adjudication should be counted in determining the defendant’s 15
criminal history under U.S.S.G. §§ 4A1.1 and 4A1.2. Matthews, 205 16

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F.3d at 546, 548‐49. Sentencing Guideline 4A1.2(j) specifically states 1
that only prior convictions that have been “expunged” will not be 2
counted in making a criminal history determination, and an 3
application note to U.S.S.G. § 4A1.2 expressly states that prior 4
convictions that have merely been “set aside” should be counted. 5
U.S.S.G. § 4A1.2, cmt. n.10. We held that New York convictions 6
replaced by YO adjudications were not “expunged” and therefore 7
should be counted under the Guidelines in calculating the 8
defendant’s criminal history. Matthews, 205 F.3d at 548. We 9
concluded that although “New York courts do not use youthful 10
offender adjudications as predicates for enhanced sentencing . . . 11
[that] does not restrict federal courts from taking them into account 12
when imposing sentences under the Guidelines.” Id. 13
Similarly, in United States v. Driskell, we held that an 14
attempted murder conviction that was replaced by a New York YO 15
adjudication constituted an “adult conviction” for calculating a 16

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defendant’s criminal history under U.S.S.G. §§ 4A1.1 and 4A1.2(d). 1
United States v. Driskell, 277 F.3d 150, 151, 157‐58 (2d Cir. 2002). As 2
in Matthews, the relevant Guidelines provisions for calculating 3
criminal history did not exclude convictions that had been “set 4
aside” under state law. 5
In United States v. Cuello, a felon‐in‐possession sentencing 6
appeal under 18 U.S.C. § 922(g)(1), we also held that a prior New 7
York controlled substance conviction later replaced by a YO 8
adjudication should be counted as a prior felony conviction in 9
determining a base offense level under U.S.S.G. § 2K2.1. Cuello, 357 10
F.3d at 164‐65, 168‐69. We observed that an application note to 11
U.S.S.G. § 2K2.1 indicated that the district court should look to state 12
law to determine whether a conviction for an offense committed 13
prior to age 18 is “classified as an adult conviction.” Id. at 165 14
(quoting U.S.S.G. § 2K2.1, cmt. n.5 (2003), now appearing in U.S.S.G. 15
§ 2K2.1, cmt. n.1 (emphasis omitted)). We held that, although New 16

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York did not label a YO adjudication an “adult conviction,” New 1
York nonetheless functionally treated the defendant’s YO 2
adjudication as such for the purposes of U.S.S.G. § 2K2.1 because the 3
defendant was tried and convicted in an adult forum and served his 4
sentence in an adult prison. Id. at 168‐69. Notably, however, as in 5
Matthews and Driskell, the relevant Guidelines did not provide that 6
such convictions would be excluded from consideration if state law 7
provided that they be deemed “set aside.” 8
Finally, in United States v. Parnell, we concluded that a district 9
court should consider a New York YO adjudication that replaced an 10
attempted burglary conviction when applying the Career Offender 11
Guideline enhancement, U.S.S.G. § 4B1.1, because the attempted 12
burglary conviction qualified as a “prior felony conviction” under 13
that section of the Guidelines. Parnell, 524 F.3d at 170‐71. We 14
specifically distinguished the ACCA definition of qualifying 15
convictions under 18 U.S.C. § 921(a)(20), which excludes convictions 16

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that have been “set aside,” because that definition applied only to 1
the ACCA and not to the Career Offender Guideline. Id. at 170. 2
Thus, we held that U.S.S.G. §§ 4B1.1 and 4B1.2 (the definitional 3
section for the Career Offender Guideline), which do not exclude 4
“set aside” convictions, allow district courts to consider YO 5
adjudications when calculating the number of prior felony 6
convictions for purposes of the Career Offender Guideline 7
enhancement. Id. at 170‐71. 8
Because the ACCA specifically excludes prior drug 9
convictions that have been “set aside” and requires district courts to 10
apply state law in making that determination, Sampson, Matthews, 11
Driskell, Cuello, and Parnell are inapposite here. We must follow 12
New York law to determine whether Sellers’s conviction has been 13
“set aside” or whether it qualifies as a predicate conviction under 14
the ACCA. 18 U.S.C. §§ 921(a)(20), 924(e)(1). 15

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B. Youthful Offender Adjudication Under New York 1
Law 2
Under New York law, the adjudication of “youthful offender” 3
may be available to convicted defendants alleged to have committed 4
their crimes when they were at least 16 and less than 19 years old. 5
See N.Y. Crim. Proc. Law §§ 720.10(1), (2), 720.20(1). “Courts have 6
the discretion to designate an eligible convicted defendant a 7
‘youthful offender’ if ‘in the opinion of the court the interest of 8
justice would be served by relieving the eligible youth from the onus 9
of a criminal record . . . .’” Cuello, 357 F.3d at 165 (alteration in 10
original) (quoting N.Y. Crim. Proc. Law § 720.20(1)). 11
As the Government correctly points out, a conviction is 12
therefore a prerequisite to a YO adjudication. See N.Y. Crim. Proc. 13
Law § 720.20(1). But “[a] youthful offender adjudication is not a 14
judgment of conviction for a crime or any other offense.” N.Y. Crim. 15
Proc. Law § 720.35(1). The New York Court of Appeals has 16
interpreted a YO adjudication as replacing the underlying 17

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conviction. See People v. Calderon, 588 N.E.2d 61, 67 (N.Y. 1992) (“As 1
the youthful offender law makes clear, the youthful offender finding 2
is substituted for, and becomes, in essence, the conviction of the 3
eligible youth[.]” (emphasis added)).5 Accordingly, although Sellers 4
pled guilty to a drug related offense prior to his YO proceedings, 5
after his YO finding and the imposition of his YO sentence, under 6
New York law, the YO adjudication replaced Sellers’s prior 7
conviction. See N.Y. Crim. Proc. Law § 720.10(4)‐(6). 8
The effect of the YO adjudication in the New York courts is 9
controlling when determining the status of Sellers’s conviction “in 10
accordance with the law of the jurisdiction in which the proceedings 11
5 Under New York law, a sentence following a YO adjudication can be modified, but the
YO adjudication can be revoked only under limited circumstances. See People v. Gary
O’D., 461 N.Y.S.2d 65, 66 (App. Div. 1983) (holding that while New York law “permits
the court to revoke the sentence of probation and to impose an amended sentence,” the
court was “not empowered to convert a youthful offender adjudication into a judgment
of conviction” (internal citation omitted)). Under New York law, revocation is possible
only if the YO adjudication was obtained through fraud or deceit. See Calderon, 588
N.E.2d at 67 (“[A]bsent evidence of fraud or misrepresentation there is no inherent
power in the court to revoke a youthful offender finding once the proceeding is
terminated by entry of judgment, nor is any such power granted by statute.“); People v.
Allen A., 860 N.Y.S.2d 19, 20 (App. Div. 2008).

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were held.” 18 U.S.C. § 921(a)(20). In New York, once a court 1
determines a person is a youthful offender, the court “must direct 2
that the conviction be deemed vacated and replaced by a youthful 3
offender finding.” N.Y. Crim. Proc. Law § 720.20(3) (emphasis 4
added); see also N.Y. Penal Law § 60.02 (describing a youthful 5
offender finding as “substitut[ing] for a conviction”). As previously 6
explained, “set aside” in 18 U.S.C. § 921(a)(20) means to “annul or 7
vacate,” and here the plain language of N.Y. Crim. Proc. Law 8
§ 720.20(3) uses “vacated.” The plain language of both 18 U.S.C. 9
§ 921(a)(20) and N.Y. Crim. Proc. Law § 720.20(3) therefore indicates 10
that under the law of New York, a YO adjudication is a conviction 11
that has been “set aside” or “vacated.” 12
The effect New York courts give to a YO adjudication in 13
subsequent state prosecutions further supports excluding Sellers’s 14
YO adjudication as an ACCA‐predicate conviction. Although in 15
New York YO adjudication records are still available to New York’s 16

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department of corrections and community supervision and 1
probation departments, N.Y. Crim. Proc. Law § 720.35(2), and New 2
York courts may consider YO adjudications when evaluating 3
criminal history and in parole and bail determinations, see Cuello, 4
357 F.3d at 166 (examining the YO adjudication scheme), New York 5
law also provides that YO adjudications may not be used as 6
predicates for sentencing enhancements, including for “multiple 7
offender sentencing,” which is similar to the ACCA. People v. 8
Meckwood, 980 N.E.2d 501, 502 (N.Y. 2012); People v. Kuey, 631 N.E.2d 9
574, 576 (N.Y. 1994).6 10
For these reasons, we hold that Sellers’s YO adjudication 11
under New York law is not a predicate conviction under the ACCA. 12
6 Our only sister court to address the issue, the First Circuit, concluded that “it was not
blatant error for the sentencing court to take [a defendant’s] juvenile adjudication into
consideration for the purpose of applying the ACCA” because “juvenile adjudications
[under Massachusetts law] are not ‘set aside’ for the purpose of imposing sentence in
later criminal proceedings.” United States v. Ellis, 619 F.3d 72, 75 (1st Cir. 2010) (per
curiam). As discussed above, New York treats YO adjudications differently, and we are
bound to give effect to New York’s treatment of YO adjudications here.

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CONCLUSION 1
For the foregoing reasons, we hold that a prior drug 2
conviction that has been “set aside” under New York law is not a 3
predicate conviction under the ACCA. We further hold that a New 4
York youthful offender adjudication “set[s] aside” a defendant’s 5
underlying conviction as a matter of New York law. Thus, Sellers’s 6
youthful offender adjudication under New York law does not 7
qualify as a “previous conviction[] . . . referred to in section 8
922(g)(1)” under the ACCA. See 18 U.S.C. § 924(e)(1). The district 9
court erred in imposing the ACCA’s mandatory minimum sentence. 7 10
We REMAND to the district court for resentencing. 11
7 Because we hold that Sellers was not an armed career criminal subject to the statutory
mandatory minimum of § 924(e)(1), we note that Sellers is also ineligible for the
enhancement he received under U.S.S.G. § 4B1.4, which applies to defendants who are
subject to enhanced sentences under the ACCA. See U.S.S.G. § 4B1.4(a).

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