Tobias v. United States, 3:16-cv-1092 (MPS)

THEODORE TOBIAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 3:16-cv-1092 (MPS)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

August 18, 2017

MEMORANDUM AND ORDER

Theodore Tobias has filed a motion to vacate his sentence under 28 U.S.C. § 2255 ("Section 2255"). On July 26, 2000, Judge Dominic J. Squatrito sentenced Mr. Tobias to 270 months of imprisonment as a result of convictions after a jury trial for Hobbs Act Robbery under 18 U.S.C. § 1951(a), conspiracy to commit Hobbs Act Robbery under 18 U.S.C. § 1951, and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) ("Section 924(c)"). Applying the 1998 edition of the then-mandatory U.S. Sentencing Guidelines (the "Guidelines"), later made advisory by the Supreme Court's landmark decision in United States v. Booker, 543 U.S. 220 (2005) ("Booker"), Judge Squatrito determined that Mr. Tobias's prior robbery convictions qualified as crimes of violence under the residual clause of the Guidelines' career offender provision, U.S.S.G. § 4B1.2 ("Section 4B1.2"). Mr. Tobias was therefore considered a career offender under U.S.S.G § 4B1.1 ("Section 4B1.1") and subject to an enhanced Guidelines range of 270-322 months of imprisonment. Judge Squatrito sentenced Mr. Tobias to 270 months (22 ½ years), the bottom of the Guidelines range, along with 3 years of supervised release. Mr. Tobias is currently incarcerated at FCI Fairton, with an estimated release date in December of 2017.

Mr. Tobias now argues that the residual clause of the mandatory Guidelines' career offender provision is void for vagueness under the recent Supreme Court cases of Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson") and Welch v. United States, 136 S. Ct. 1257 (2016) ("Welch"), and that his claim is not barred by the even more recent case of Beckles v. United States, 137 S. Ct. 886 (2017) ("Beckles"). Johnson held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), was void for vagueness under the due process clause. Welch made the rule in Johnson retroactive to cases on collateral review. Finally, Beckles held that the residual clause of Section 4B1.2 of the advisory Guidelines was not void for vagueness, because the advisory Guidelines are not subject to vagueness challenges. Separately, Mr. Tobias argues that his conviction for use of a firearm during a crime of violence should be vacated, because Hobbs Act Robbery is not a crime of violence under Section 924(c).

For the reasons explained below, Mr. Tobias's Section 2255 petition is DENIED. The residual clause of Section 4B1.2 of the mandatory, pre-Booker Guidelines is not void for vagueness as applied to Mr. Tobias, because the authoritative commentary to the 1998 Guidelines expressly designated robbery as a crime of violence. And Hobbs Act Robbery qualifies as a crime of violence under Section 924(c) and Second Circuit precedent.

I. BACKGROUND

A. Conviction, Sentencing, and Direct Appeal

On November 11, 1997, Mr. Tobias robbed an attendant at the registration desk of the Fairfield Inn in Windsor Locks, Connecticut, stealing $269 at gunpoint. (Pre-Sentence Report ("PSR"), ECF No. 28 ¶¶ 7-10.) The police arrested him the same day. (Id. ¶ 11.) On June 11, 1999, a federal jury found Mr. Tobias guilty of Hobbs Act Robbery under 18 U.S.C. § 1951(a),conspiracy to commit Hobbs Act Robbery under 18 U.S.C. § 1951, and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) ("Section 924(c)"). (ECF No. 1-1.)

In advance of sentencing, the U.S. Probation Office prepared a Pre-Sentence Report ("PSR"). The PSR described Mr. Tobias's prior Connecticut state convictions, including convictions for first and second degree robbery. (PSR ¶¶ 33, 37.) Based on these convictions, and relying on the 1998 edition of the Guidelines Manual,¹ the Probation Office determined that the "career-offender enhancement" applied under Section 4B1.1. (Id. ¶¶ 20, 27.) The Probation Office explained:

Under Section 4B1.1, the defendant qualifies as a Career Offender, being that he was at least 18 years old at the time of the instant offense; the instant offense, Bank Robbery [sic], is a felony that is a crime of violence; and the defendant has at least two felony convictions. On November 29, 1988, the defendant was convicted of Robbery II, and on June 23, 1993, he was convicted of Robbery I.

(Id. ¶ 27.)²

Under Section 4B1.1, to qualify as a career offender, the defendant must have "at least two prior felony convictions of either a crime of violence or a controlled substance offense." The 1998 Guidelines defined a "crime of violence" as follows:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Section 4B1.2. Clause 1 ("has as an element...") is known as either the "force clause" or the "elements clause." The beginning of clause 2 ("is burglary... explosives") is known as the "enumerated clause." The end of clause 2 ("or otherwise involves...") is known as the "residual clause." The commentary to Section 4B1.2 (note 1) in the 1998 Guidelines Manual further explained that "'Crime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." (emphasis added).

Based on the career offender enhancement, the Probation Office calculated a total offense level of 32. (PSR ¶¶ 27-29.) (Without the enhancement, the Probation Office calculated an offense of 22. (Id. ¶ 26.)) Given an offense level of 32 and a criminal history category of VI, the Probation Office determined a Guidelines range of 210-262 months of imprisonment on the Hobbs Act robbery and conspiracy convictions, plus a consecutive 60 months on the Section 924(c) count. (Id. ¶ 82.) Mr. Tobias's resulting "effective" Guidelines range was 270-322 months. (Id.)

On July 26, 2000, Judge Squatrito sentenced Mr. Tobias to a total of 270 months of imprisonment, 3 years of supervised release, and a $300 special assessment. (ECF No 1-1.) Judgment was entered on August 7, 2000. (Id.) Mr. Tobias appealed, but the Court of Appeals affirmed, United States v. Tobias, 33 F. App'x 547 (2d Cir. 2002), and the U.S. Supreme Court denied his petition for a writ of certiorari. Tobias v. United States, 538 U.S. 933 (2003).

B. Previous Petitions

On January 23, 2006, Mr. Tobias filed a pro se "application for writ of audita querela," arguing that he was entitled to resentencing under Booker. (Case 3:06-cv-123, ECF No. 1.) Judge Squatrito denied the writ on February 7, 2006, stating that the petition "patently lack[ed] merit."(Id., ECF No. 2.) On January 7, 2013, Mr. Tobias filed a pro se "Letter-Motion, Actual Innocence Claim." (Id., ECF No. 8.) Judge Squatrito construed this filing as a motion for relief under Section 2255, and denied it on July 15, 2013, because Mr. Tobias had "not alleged any specific constitutional error" and had "not identified any 'new reliable evidence'" that would support an innocence claim. (Id., ECF No. 9.)

C. The Instant Petition

On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA was void for vagueness, in violation of the Due Process Clause of the Fifth Amendment. On April 18, 2016, the Supreme Court in Welch held that Johnson had announced a new substantive rule that applied retroactively on collateral review. Relying on those cases, on May 24, 2016, Mr. Tobias filed a motion for leave to file a successive Section 2255 motion with the Court of Appeals, and on June 26, 2016, filed the Section 2255 motion in this case. (ECF Nos. 1, 3.) Mr. Tobias argued that his sentence for Hobbs Act robbery and conspiracy should be vacated in light of Johnson, because the residual clause of Section 4B1.2 was identical to the residual clause of the ACCA, and that his conviction under Section 924(c) should also be vacated. (ECF No. 1.)

On September 12, 2016, the Court of Appeals granted Mr. Tobias leave to file a successive petition, writing:

[Petitioner] argues, inter alia, that Johnson v. United States, 135 S. Ct. 2551 (2015), has invalidated a certain provision of the United States Sentencing Guidelines, entitling him to a sentence reduction. Upon due consideration, it is hereby ORDERED that the motion is GRANTED. See Blow v. United States, --F.3d--, 2016 WL 3769712. For present purposes, we have not examined Petitioner's other proposed claims.

(ECF No. 8.) The Court of Appeals directed me to stay the proceeding, pending a decision by the Supreme Court in Beckles, "in which the Supreme Court will likely decide whether Johnson applies retroactively to United States Sentencing Guidelines § 4B1.2(a)(2)." (Id.)

The Supreme Court decided Beckles on March 6, 2017, holding that "the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause." Beckles, 137 S. Ct. at 890. Both Justice Ginsburg and Justice Sotomayor concurred in the judgment, explaining that they would have decided the case on the ground that the residual clause was not void for vagueness as applied to the petitioner, because "the official commentary to the career-offender Sentencing Guideline expressly designated his offense of conviction—possessing a sawed-off shotgun as a felon—a 'crime of violence.'" Id. at 897-98 (Ginsburg, J, concurring); see also id. (Sotomayor, J., concurring) ("Johnson affords Beckles no relief, because the commentary under which he was sentenced was not unconstitutionally vague.") Justice Sotomayor also noted that the Court had "at least [left] open the question whether defendants...