Diaz v. United States

ALEXY DIAZ, Movant, v. UNITED STATES OF AMERICA, Respondent.

Civil Case No. 1:16-cv-0323-MAT

Criminal Case No. 1:11-cr-0381-MAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

August 30, 2016

DECISION AND ORDER

INTRODUCTION

Alexy Diaz ("Diaz" or "Movant"), represented by counsel, has filed his first Motion to Correct the Sentence (Dkt #248) pursuant to 28 U.S.C. § 2255 ("Section 2255"). Diaz asserts that his sentence is unconstitutional based on Johnson v. United States, 135 S. Ct. 2551 (2015) ("2015 Johnson").¹

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On August 6, 2014, Diaz appeared before United States District Judge Richard J. Arcara and pled guilty to the offense of being in possession of a firearm/armed career criminal in violation of 18 U.S.C. §§ 922(g)(1), 924(e). At the sentencing hearing on February 27, 2015, Judge Arcara found Diaz to be an Armed Career Criminal ("ACC") under 18 U.S.C. § 924(e) ("Armed Career Criminal Act" or "ACCA") based upon certain findings in the Pre-Sentence Report("PSR"). Specifically, Judge Arcara found that Movant had at least three qualifying prior convictions, namely, (1) a New York State conviction for attempted second-degree robbery, (2) a New York State conviction for third-degree robbery, and (3) a New York State conviction for attempted third-degree criminal possession of a controlled substance. See PSR ¶¶ 37, 46-48. Judge Arcara determined that the robbery convictions both qualified as "violent felonies" under the ACCA. After taking into account the downward departure based on United States Sentencing Guidelines ("USSG" or "Guidelines") § 5K1.1 and other relevant factors, Judge Arcara imposed a sentence of 100 months in the custody of the Bureau of Prisons.

Respondent has filed a Memorandum of Law in Opposition (Dkt #256) to the Section 2255 Motion. Movant filed a Reply (Dkt #259) based on the newly-decided Second Circuit case, United States v. Corey Jones, No. 15-1518-cr, ___ F.3d ___, 2016 WL 3923838 (2d Cir. July 21, 2016). Respondent filed a Sur-Reply (Dkt #261), and Movant filed a Supplemental Reply (Dkt #262). The matter was submitted on the papers on August 24, 2016.

On August 25, 2016, Respondent sent a letter (Dkt #264) to the Court indicating that it was withdrawing any reliance on the appeal waiver provision in Diaz's plea agreement as a defense to the § 2255 Motion, and emphasizing that its withdrawal of the defense was specific to Diaz's case.

For the reasons discussed below, the Court grants the relief requested in the Section 2255 Motion.

DISCUSSION

I. The ACCA's Residual Clause

For a federal defendant who has at least three prior convictions "for a violent felony, or a serious drug offense, or both," the ACCA increases his or her sentence from a statutory maximum of ten years to a statutory minimum of fifteen. 18 U.S.C. § 924(e)(1). Under the ACCA, a prior conviction qualifies as a "violent felony" if it is "punishable by imprisonment for a term exceeding one year" and it:

(i) [h]as as an element the use, attempted use, or threatened use of physical force against another [i.e., the force clause]; or

(ii) [i]s burglary, arson, extortion, involves the use of explosives [i.e., enumerated offenses] or otherwise involves conduct that presents a serious potential risk of physical injury to another [i.e., the residual clause].

18 U.S.C. § 924(e)(2)(B) (emphasis supplied).

On June 26, 2015, the Supreme Court held that the residual clause referenced in 18 U.S.C. § 924(e)(2)(B)(ii) was unconstitutionally void for vagueness in all applications. 2015 Johnson, 135 S. Ct. at 2562-63. Therefore, in order for an offense to constitute a "violent felony," it must qualify either as an enumerated offense specified in § 924(e)(2)(B)(ii), or qualify under § 924(e)(2)(B)(i)'s force clause. Recently, the Supreme Court held that 2015 Johnson announced a new substantive rule thatapplies retroactively to cases on collateral review. Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257, 1268 (2016).

II. Overview of the Parties' Contentions

Movant posits that his robbery offenses only qualify as ACCA "violent felonies" under the residual clause voided by 2015 Johnson, and therefore his Armed Career Criminal sentence is unconstitutional. See 28 U.S.C. § 2255(a) (permitting relief where, inter alia, "the sentence was imposed in violation of the Constitution or laws of the United States" and "the sentence was in excess of the maximum authorized by law"). Respondent argues that Movant does not have a viable claim under 2015 Johnson, because his "robbery convictions were long held to be violent felonies under the force clause of § 924(e) and not the residual clause," and therefore there remains a constitutional basis for imposing an Armed Career Criminal sentence. According to Respondent, because 2015 Johnson did not invalidate the force clause, that case "ha[s] nothing to do with [M]ovant's sentence[,]" and Movant cannot rely on it for relief. See Resp't Sur-Reply at 9 (Dkt #261); see also id. at 6-7 (collecting cases).

III. Movant's Prior Convictions

A. The Third-Degree Robbery Conviction

Diaz was convicted of third-degree robbery under New York Penal Law ("P.L.") § 160.05, which provides that "[a] person is guilty of robbery in the third degree when he forcibly stealsproperty." N.Y. PENAL LAW § 160.05. "Robbery" is not an enumerated offense under the ACCA. See 18 U.S.C. § 924(e)(2)(B)(ii). Therefore, in order for Movant's third-degree robbery conviction to qualify as a violent felony, it must fit within the force clause of the ACCA, which requires it to have, as "an element[,] the use, attempted use, or threatened use of physical force against another[.]" 18 U.S.C. § 924(e)(2)(B)(i) (emphasis supplied). Interpreting the ACCA in 2010 Johnson, the Supreme Court stated that "in the context of a statutory definition of 'violent felony,' the phrase 'physical force' means violent force—that is, force capable of causing physical pain or injury to another." 2010 Johnson, 559 U.S. at 140 (emphasis in original). "Correspondingly, force that is not 'capable of causing physical pain or injury to another,' i.e. less-than-'violent,' cannot qualify a crime as a violent felony for use as an ACCA predicate." Jones, 2016 WL 3923838, at *3 (quoting 2010 Johnson, 559 U.S. at 140; internal citation omitted). Thus, the question the Court must answer is whether a defendant who "forcibly steals property" necessarily uses "force capable of causing physical pain or injury to another[,]" 2010 Johnson, 559 U.S. at 140.

New York's robbery statute defines "forcible stealing" as follows:

the use[] or threaten[ed] [] immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to thetaking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in conduct which aids the commission of the larceny.

N.Y. PENAL LAW § 160.00. While robbery under New York law does contain an element of force, the statutory definition quoted above makes clear that "violent physical force," as contemplated by 2010 Johnson, is not a necessary component of the crime. This point is further illustrated by New York's decisional law. See, e.g., People v. Bennett, 631 N.Y.S.2d 834, 834 (1st Dep't 1995) ("Defendant's guilt was proven by legally sufficient evidence that he and three others formed a human wall that blocked the victim's path as the victim attempted to pursue someone who had picked his pocket, allowing the robber to get away. The requirement that a robbery involve the use, or the threat of immediate use, of physical force (Penal Law § 160.00) does not mean that a weapon must be used or displayed or that the victim must be physically injured or touched[.]") (citation omitted).

Last month, the Second Circuit considered whether first-degree robbery in New York, defined in P.L. §§ 160.00 and 160.15, is a "crime of violence" under the Career Offender Guideline of the United States Sentencing Guidelines ("USSG" or "Guidelines"), see USSG § 4B1.2(a)(1). In so doing, the Circuit examined the relationship between USSG § 4B1.2(a)(1)'s definition of "crime of violence" and the ACCA's term, "violent felony," asexplicated by the Supreme Court in 2010 Johnson. See Jones, 2016 WL 3923838, at *2. Noting that in defining "crime of violence," USSG §-4B1.2(a)(1) "uses language identical to that in the ACCA's definition of 'violent felony[,]'" Jones 2016 WL 3923838, at *2, the Second Circuit held that 2010 Johnson's analysis of ACCA's term, "violent felony," applied to its analysis of the Career Offender Guideline's use of the term, "crime of violence." Id. The Circuit canvassed New York caselaw and found that the State courts uniformly have interpreted "forcible stealing," as used in the robbery statutes, so that "it does not always involve 'force capable of causing physical pain or injury to another,'" Jones, 2016 WL 3923838, at *5 (quoting 2010 Johnson, 559 U.S. at 140). In the end, the Second Circuit was "compelled to conclude in the wake of [2010] Johnson that a New York robbery conviction involving forcible stealing, absent other aggravating factors, is no longer necessarily a conviction for a 'crime of violence' within the meaning of the Career Offender Guideline." Jones, 2016 WL 3923838, at *5. Further, the Second Circuit found that the less-than-violent force which can satisfy some sections of the first-degree robbery statute does not become violent force as contemplated by 2010 Johnson, even if the perpetrator is armed with a deadly weapon. Jones, 2016 WL 3923838, at *5. The Supreme Court, in 2010 Johnson, confirmed that the focus of the inquiry under the ACCA's force clause is not the risk of injury, but the "nature of the forceemployed." Jones, 2016 WL 3923838, at *6. Although possession of a deadly weapon increases the likelihood that a robbery defendant will injure a...