Boykin v. United States

MARCO BOYKIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

16 CV 4185 (CM)

S11 10 CR 391-61 (CM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 18, 2020

ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C. § 2255

McMahon, C.J.:

Marco Boykin was named in fifteen counts of a thirty-count superseding indictment, S11 10 CR 391 (CM)- three of them capital counts. Boykin ultimately pleaded guilty to three of those counts: Racketeering Conspiracy, in violation of 18 U.S.C. § 1962(d) (Count Two); Narcotics Conspiracy, in violation of 21 U.S.C. § 846 (Count Eighteen); and using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the conspiracy to commit murder and murder charged in Counts Three and Four, which firearm was discharged, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) & (c)(1)(C)(i) and 2. (Count Twenty-Five).

Boykin was sentenced to a term of 335 months' imprisonment (235 months' on Count Two, 120 months' on Count Eighteen, those sentences running concurrent; and 120 months' on Count Twenty-Five, running consecutive to the aggregate 235 months' imposed on Counts Two and Eighteen). He is currently serving his sentence in a United States Penitentiary; his projected release date is 2037.

Before the Court is Boykin's motion filed pursuant to 28 U.S.C. § 2255, asking the Court to set aside his conviction and sentence on Count Twenty-Five (the § 924(c) firearms offense), in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) and its progeny, most particularly, United States v. Davis, 139 S. Ct. 2319 (2019).¹ In Davis, the Supreme Court held that § 924(c)(3)(B)—commonly referred to as the "risk-of-force clause" or "residual clause" of Section 924(c)'s definition of a crime of violence—was unconstitutionally vague. United States v. Davis, 139 S. Ct. at 2336. Boykin argues that, since the risk of force clause is unconstitutional, "his conviction for participation in a racketeering conspiracy under 18 U.S.C. § 1962(c) can no longer qualify as a 'crime of violence' to support his conviction for discharging a firearm in the commission of a 'crime of violence.'" (Defendant's Motion at 1).

The Government asks the Court to deny Boykin's motion on the merits, as well as for procedural default, since Boykin waived his right to appeal in his plea agreement, and no appeal was ever filed.

It is not necessary to address the Government's procedural attack on the petition, because Boykin's Johnson/Davis claim fails on its merits.

While Boykin is of course correct that § 924(c)(3)(B) was held by the Supreme Court to be unconstitutionally vague, his argument fails, nonetheless. That is because Boykin's § 924(c) conviction was not predicated on the racketeering conspiracy with which he was charged; it was predicated on two other crimes: (1) conspiracy to murder, as charged in Count Three, and (2) the actual murder of Lamont Young in aid of racketeering, as charged in Count Four. See Indictment S11 10 CR 391 (CM). And while it is unclear whether Johnson/Davis effectively excludes allconspiracies—even a conspiracy to murder—from serving as a predicate crime of violence for a § 924 (c) firearms conviction, murder itself is a crime of violence under§ 924(c)(3)(A), the constitutionality of which was not affected by the ruling in Davis. Contrary to Boykin's strained argument, the crime of murder has always been understood to be a crime of violence- indeed, the ultimate crime of violence.

Background

Marco Boykin was one of the leaders of the Bloods in Newburgh, engaging in, assisting, and directing frequent violence, up to and including murder, helping to flood the streets of Newburgh, New York, with crack cocaine, and engaging in other crimes in furtherance of the Bloods enterprise. The charges against him and his ultimate convictions stem from his gang activities.² He was named in 15 of the 30 counts of indictment S11 10 Cr. 391 (CM), which charged him and others with:

(1) engaging in a racketeering enterprise, in violation of 18 U.S.C. §§ 1961 and 1962(c) (Count One);

(2) participating in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count Two);

(3) participating in conspiracy to murder Lamont Youngin aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count Three);

(4) murdering Lamont Young in aid of racketeering, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (Count Four);

(5) participating in a conspiracy to murder Tyrik Legette in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count Five);

(6) murdering Tyrik Legette in aid of racketeering, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (Count Six);(7) participating in a conspiracy to murder members of a rival gang known as the "Crips" in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count Eleven);

(8) assaulting and attempting to murder members of a rival gang known as the "Crips" in aid of racketeering, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1959(a)(3) & (a)(5) and 2 (Count Twelve);

(9) attempting to assault and murder members of a rival gang known as the "Latin Kings" in aid of racketeering, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1959(a)(5) & (a)(6) and 2 (Count Fifteen);

(10) participating in a conspiracy to distribute and possess with intent to distribute 280 grams and more of crack cocaine, in violation of 21 U.S.C. § 846 (Count Eighteen);

(11) using and carrying firearms during and in relation to, and possessing firearms in furtherance of, the crack-cocaine-distribution conspiracy charged in Count Eighteen, which firearms were discharged, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 (Count Twenty-One);

(12) using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the conspiracy to commit murder and assault and attempted murder charged in Counts Eleven and Twelve, which firearm was discharged, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) & (c)(1)(C)(i) and 2 (Count Twenty-Three);

(13) using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the conspiracy to commit murder and murder charged in Counts Three and Four, which firearm was discharged, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) & (c)(1)(C)(i) and 2 (Count Twenty-Five);

(14) using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the conspiracy to commit murder and murder charged in Counts Three and Four, which firearm was discharged, and aiding and abetting the same, thus causing the death of Lamont Young, in violation of 18 U.S.C. §§ 924(j) and 2 (Count Twenty-Six);

(15) using and carrying firearms during and in relation to, andpossessing firearms in furtherance of, the assault and attempted murder charged in Count Fifteen, which firearm was discharged, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) & (c)(1)(C)(i) and 2 (Count Twenty-Seven).

Three of the counts—Counts Four, Six, and Twenty-Six—were capital counts. Two of the counts—Counts Four and Six—carried mandatory life sentences.

Boykin ultimately pleaded guilty, pursuant to a plea agreement, to Count Two (racketeering conspiracy), Count Eighteen (crack-cocaine distribution conspiracy), and Count Twenty-Five (the § 924(c) firearms charge). The Indictment predicated Count Twenty Five, not on the racketeering conspiracy charged in Count Two, as defendant contended in his original motion, but on the conspiracy to murder Lamont Young (charged in the indictment as Count Three) and on the actual murder of Lamont young (charged in the indictment as Count Four).

As part of his plea, Boykin also admitted to participating in the murder of Tyrik Legette, which was charged as a part of the racketeering enterprise that was the Newburgh Bloods (Count One), and to the crime of attempted murder of members of the rival Crips gang- all as part of his participation in the racketeering conspiracy charged in Count Two. (Plea Agreement 1 n.1). However, that conspiracy and its underlying acts were not the predicate for the 924(c) charged in Count Twenty-Five.

Boykin also agreed that:

Should the conviction(s) following the defendant's plea(s) of guilty pursuant to this Agreement be vacated for any reason, then any prosecution that is not time-barred by the applicable statute of limitations on the date of the signing of this agreement (including any counts that the Government has agreed to dismiss at sentencing pursuant to this Agreement) may be commenced or reinstated against the defendant, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement or reinstatement of such prosecution. It is the intent of this Agreement to waive all defenses based on the statute of limitations with respect to any prosecution that is not time-barred on the date that this Agreement is signed.

(Plea Agreement 10). Thus, if Boykin were to "win" his motion (that is, have his conviction and sentence on Count Twenty-Five vacated and that count dismissed), he would be facing possible prosecution on the counts the Government agreed to forgo in the plea agreement, including the three capital counts (Counts Four, Six and Twenty-Six) and the two counts carrying mandatory life sentences (Counts Four and Six).³

In his plea allocution, Boykin made clear that Count Twenty-Five was predicated on both the actual murder and the conspiracy pursuant to which the murder plan was hatched and carried out:

THE COURT: Did you have any involvement in the murder or attempted murder of others for purposes of assisting the Bloods' business in Newburgh?

THE DEFENDANT: Yes.

THE COURT: In the course of any of

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