United States v. Campbell

647 F.Supp.3d 76

UNITED STATES of America v. George CAMPBELL, Defendant.

91 CR 1219-5 (RJD)

21 CV 2320 (RJD)

United States District Court, E.D. New York

Signed October 21, 2022

Benjamin A. Saltzman, United States Attorney's Office for the Eastern District, New York, NY, Michael Robotti, Erin Argo, Lindsay K. Gerdes, Government Attorneys, Lisa Klem, Adam Toporovsky, Andrew Grubin, Jennifer M. Sasso, Charles Gerber, United States Attorney's Office, Criminal Division, Brooklyn, NY, David J. Lizmi, Margaret Schierberl, Robert Marshal Pollack, Genny Ngai, DOJ-USAO, Brooklyn, NY, for United States of America in 91 CR 1219.

George Campell, Otisville, NY, Pro Se.

MEMORANDUM & ORDER

DEARIE, District Judge.

Before the Court are two applications by defendant George Campbell. The first is a successive motion under 28 U.S.C. § 2255 that the Second Circuit granted him leave to file. Campbell asks this Court to vacate the "stacked" sentences imposed on his seven convictions of firearms offenses under 18 U.S.C. § 924(c), which account for 125 years of his total sentence of 150 years, on the ground that the convictions are no longer supported by valid crime-of-violence predicates in light of Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ("Johnson II"), and United States v. Davis, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019)

The second, here by virtue of limited remand from the Second Circuit, is to reconsider Campbell's motion under 18 U.S.C. § 3582(c)(1)(A)(i) for a reduction in sentence on the ground that the Congressional decision to outlaw the stacking of § 924 sentences in a single prosecution, coupled with Campbell's rehabilitation, are extraordinary and compelling circumstances. This Court initially denied relief because, pursuant to an extradition treaty with Costa Rica, Campbell will serve only 50 of the 150 years imposed.

For the reasons set forth below, the Court (i) denies the § 2255 motion to vacate, and (ii) upon reconsideration, grants the § 3582(c)(1)(A)(i) motion, reducing Campbell's sentence to time served effective November 1, 2023.

BACKGROUND

Campbell was tried in 1999 and convicted, by a jury, of fifteen counts, including conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371 (count 1); three counts of armed robbery of post offices, in violation of 18 U.S.C. § 2114(a) (counts 6, 10, and 12); four counts of armed robbery of banks, in violation of 18 U.S.C. § 2113(a) and (d) (counts 8, 14, 16, and 22); and seven counts of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Three of the seven firearms counts (counts 7, 11, and 13) are predicated on the post office robberies while the other four (counts 9, 15, 17, and 23) are predicated on the bank robberies. The convictions are the result of Campbell's participation in a gang known as the Forty Thieves that committed a series of armed robberies of banks and post offices from May 1991 through October 1991.¹ Campbell was a "core member of the gang," United States v. Campbell, 300 F.3d 202, 205 (2d Cir. 2002) (affirming conviction), cert. denied, 538 U.S. 1049, 123 S.Ct. 2114, 155 L.Ed.2d 1090 (2003), and participated actively in the violence committed. For example, during one of the postal robberies, Campbell pistol-whipped a postal vehicle driver who was later hospitalized for head and rib injuries; during several of the bank robberies, he directed an employee, at gunpoint, to open the vault; and during one bank robbery, armed with two firearms, he forced customers and employees to the floor and fired two rounds of bullets when leaving. PSR ¶¶ 31-37.

The Court initially sentenced Campbell to concurrent terms of thirty years on the conspiracy and seven substantive robbery counts, along with the then-mandatory consecutive terms of five years on the first 924(c) count plus twenty years on each of the other six counts, for a total sentence of 155 years. ECF No 594 (Judgment dated July 26, 2000). The Second Circuit affirmed the conviction but remanded for resentencing to account for an incorrectly calculated Sentencing Guidelines range. Campbell, 300 F.3d at 213. At resentencing, the Court modified the sentence for the seven robbery counts (imposing concurrent terms of 25 rather than 30 years) and for the conspiracy count (imposing five rather than 30 years, concurrently) but did not disturb the stacked sentences initially imposed on the firearms counts. See ECF No. 644 (Amended Judgment dated May 15, 2003). The total modified sentence was therefore 150 instead of 155 years. Id. In accordance with an extradition treaty between the United States and Costa Rica, however, Campbell will serve only fifty years, and both the original and amended judgments include language directing the Bureau of Prisons, in compliance with the treaty, to release Campbell at the fifty-year mark. See Judgment; Amended Judgment; see also Campbell, 300 F.3d at 210-12 (discussing scope of extradition treaty). That release is projected to occur on or about June 27, 2046, when Campbell would be 80 years of age.

DISCUSSION

I. The Section 2255 Motion

When granting Campbell leave to file this instant motion, the Second Circuit ruled that Campbell had made only a "prima facie showing" that his proposed motion satisfies the requirements of § 2255(h) with respect to his claim that his § 924(c) convictions predicated on § 2114 postal robberies are unconstitutional. Campbell v. United States, 16-2017 (Con.), 2021 WL 2644465, at *1 (2d Cir. Apr. 26, 2021). The Circuit's order directs this Court to "determine, in the first instance, whether § 2114 postal robbery remains a 'crime of violence' " for purposes of § 924(c) "under the modified categorical approach, that is, whether the least culpable conduct punishable under § 2114 (or, if it is divisible, its relevant component) involves 'the use, attempted use, or threatened use of physical force.' " Id. (quoting 18 U.S.C. § 924(c)(3)(A)).

A. "Crime of Violence" under 18 U.S.C. § 924(c)

Section 924(c) provides for enhanced penalties for a defendant who uses, carries or possesses a firearm "during and in relation to any crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). Formerly, the statute defined a "crime of violence" as an offense that is a felony and

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3).

Davis, applying the principles announced in Johnson II, held that subsection (B), the so-called "residual clause," is unconstitutionally vague. 139 S. Ct. at 2336. As a result, "for purposes of § 924(c) a 'crime of violence is now defined only as a felony that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." United States v. McCoy, 995 F.3d 32, 52 (2d Cir. 2021) (cleaned up). "Physical force" in this context means "violent force" or "force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("Johnson I"); see also Stokeling v. United States, — U.S. —, 139 S. Ct. 544, 553, 202 L.Ed.2d 512 (2019) ("In the wake of Johnson [I], the Court has repeated its holding that 'physical force' means 'force capable of causing physical pain or injury.' ") (internal quotation omitted).

B. Modified Categorical Approach

To determine whether an offense is a crime of violence for this purpose, courts generally employ the "categorical approach," which requires that we "identify the minimum criminal conduct necessary for conviction under a particular statute by looking only to the statutory definitions—i.e., the elements—of the offense, and not to the particular underlying facts." Hylton v. Sessions, 897 F.3d 57, 60 (2d Cir. 2018) (cleaned up). Some statutes, however, as flagged in the Circuit's order granting leave here, are considered "divisible" because they "list elements in the alternative, and thereby define multiple crimes," Mathis v. United States, 579 U.S. 500, 505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), or because they list alternative offense conduct "carry[ing] different punishments." Id. at 518, 136 S.Ct. 2243. The so-called "modified categorical approach," as the Circuit's order reflects, is applied to such statutes. See Mathis, 579 U.S. at 518, 136 S.Ct. 2243; Campbell, 2021 WL 2644465, at *1. Under the modified approach, courts look beyond the statute to certain documents, such as the indictment and jury instructions or plea agreement, that signal which of the statute's offenses the defendant was charged and convicted of committing. Mathis, 579 U.S. at 505, 136 S.Ct. 2243; Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013); Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Divisibility is ordinarily determined on the face of the statute. Mathis, 579 U.S. at 518, 136 S.Ct. 2243.

C. Section 2114(a) Armed Post Office Robbery

Section 2114 provides:

(a) Assault - A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned

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