United States v. Floyd

1

UNITED STATES OF AMERICA v. ROBERT LEANDER FLOYD

CRIMINAL ACTION No. 98-504

United States District Court, E.D. Pennsylvania

May 8, 2023

MEMORANDUM

Juan R. Sanchez, Chief Judge

Defendant Robert Leander Floyd moves to set aside the judgment and correct his sentence in this case pursuant to 28 U.S.C § 2255 on the grounds that his convictions and sentences under 18 U.S.C. §§ 924(c)(1) and (e) did not involve “violent felonies” or “crimes of violence.” Because this argument is meritless, his motion shall be denied.

CASE HISTORY

On September 24, 1998, Floyd was charged in a grand jury indictment with armed bank robbery in violation of 18 U.S.C § 2113(a), (d) (Count One), use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1) (Count Two), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(e) (Count Three). These charges arose out of Floyd's use of a gun to rob the CoreStates Bank at 259 South Easton Road in Glenside, Pennsylvania on August 13, 1998, and having been in possession of two loaded firearms when he was arrested at a shopping mall in Cheltenham Township, PA for the robbery on September 2, 1998.

At the time he committed the offenses at issue in this case, Floyd was nearly 35 years old and had a criminal record dating back to 1982, when he was 19. Pre-sentence Investigation Report (“PSR”) 5-6. Specifically, Floyd's record included convictions for aggravated assault, simple assault possession of an instrument of crime and recklessly endangering another person on November 4, 1982, robbery on January 24, 1985, and possession of a controlled substance on January 28, 1994, all in the Philadelphia County Court of Common Pleas, and convictions for two armed bank robberies in the U.S. District Court for the Middle District of Pennsylvania on May 21, 1985. Floyd also had several parole violations for using cocaine and being in possession of firearms.^[1]PSR 5-8. Floyd's jury trial in this case commenced on March 29, 1999 before the Honorable Charles R. Weiner and ended in his conviction on all three counts on April 1, 1999. Based upon his prior convictions, Floyd was sentenced under the Armed Career Criminal Act to 290 months' incarceration on Counts One and Three to run concurrently, 60 months' imprisonment on Count Two to be served consecutively to the sentence on the other two counts, and five years of supervised release. Floyd was also ordered to pay $21,754 in restitution and a $300 special assessment. J. 2-5, ECF No. 26. He did not appeal.

Floyd filed this motion pursuant to § 2255 on June 29, 2016^[2] based on the Supreme Court's holding in Johnson v. United States, 576 U.S. 591 (2015), that the “residual clause” definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”) was unconstitutionally vague.^[3] More particularly, Floyd asserts he does not qualify for armed career criminal status because he does not have the required three prior convictions which qualify as predicate offenses under the remaining clauses of the ACCA. Def.'s Mot. Correct Sentence Under § 2255 at 3, ECF No. 73. Floyd also argues his two convictions and sentences under 18 U.S.C. § 924(c) should be set aside because the residual clause in § 924(c)(3)(B) is similarly unconstitutionally vague.^[4] Floyd contends he therefore does not have the predicate “crimes of violence” necessary to sustain his sentence under § 924(c)(1)(A)(i) to the consecutive five-year term of imprisonment or to qualify him for the sentencing enhancements under U.S.S.G. §§ 2K2.1, 4B1.1, and 4B1.2.^[5] Id. 6-8.^[6]

LEGAL STANDARDS

Prisoners in federal custody are permitted under 28 U.S.C. § 2255(a) to “move the court which imposed the sentence to vacate, set aside or correct the sentence” and to “claim the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” While the remedy available under § 2255 is comprehensive, it does not encompass all claimed errors in conviction and sentencing. United States v. Addonizio, 442 U.S. 178, 185 (1979). Unless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack is drastically limited, and an error of fact or law will not provide a basis for collateral attack unless it is “objectively ascertainable” and constituted “a fundamental defect which inherently results in a complete miscarriage of justice.” Id.; see also, United States v. Eakman, 378 F.3d 294, 300-01 (3d Cir. 2004).

The standards and processes for adjudicating § 2255 motions are set forth in subsection (b), as follows:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

§ 2255(b). As the preceding language suggests, “a district court has discretion whether to order a hearing when a defendant brings a motion to vacate sentence pursuant to 28 U.S.C. § 2255,” but there are limitations on the exercise of that discretion. United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). “A district court is required to hold an evidentiary hearing unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.” United States v. Scripps, 961 F.3d 626, 631-632 (3d Cir. 2020). Determining whether a hearing is necessary involves a two-pronged inquiry. “First, the district court ‘must consider as true all appellant's nonfrivolous factual claims.'” Id. (citation omitted). “Second, it ‘must determine whether, on the existing record, those claims that are nonfrivolous conclusively fail to show'” any entitlement to relief. United States v. Arrington, 13 F.4th 331, 334 (3d Cir. 2021) (quoting United States v. Dawson, 857 F.2d 923, 927 (3d Cir. 1988)). If the motion “alleges any facts warranting relief under § 2255 that are not clearly resolved by the record,” the district court is “obliged to follow the statutory mandate to hold an evidentiary hearing.” United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005). Finally, in considering a motion to vacate a defendant's sentence, “the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.” Gov't. of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Bald assertions and conclusory allegations do not provide sufficient grounds to merit an evidentiary hearing. United States v. Donahue, 792 Fed.Appx. 165, 168 (3d Cir. 2019). “Vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court.” United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).

DISCUSSION

Because it is clear from the motion, the record, and the available files that Floyd is not entitled to relief under § 2255 the Court will dispose of the motion without holding an evidentiary hearing.

As noted, Floyd is challenging his convictions and the sentences imposed on him pursuant to §§ 924(c)(1) and (e) on the grounds that his prior convictions were not for “violent felonies” or “crimes of violence” within the meaning of the ACCA or § 924(c).^[7] Since the Davis decision, a “crime of violence” is now defined only under the “elements” clause of § 924(c)(3)(A) to mean “an offense that is a felony and . . . has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” And, under 18 U.S.C. § 924(c)(1)(D), “[n]otwithstanding any other provision of law,” no term of imprisonment imposed under this subsection shall run concurrently with any other term of imprisonment imposed, “including any term of imprisonment imposed for the crime of violence during which the firearm was used, carried, or possessed.”

Prior to his conviction and sentence in this case, Floyd had a criminal record dating back to 1982 which included convictions in the Philadelphia Court of Common Pleas for committing the crimes of aggravated assault, simple assault possession of an instrument of crime and recklessly endangering another person on November 4, 1982, robbery on January 24, 1985, and possession of a controlled substance on January 28, 1994, and convictions in the U.S. District Court for the Middle District of Pennsylvania for committing two armed bank robberies on February 13 and February 15, 1985 in Roslyn and Stroudsburg, Pennsylvania which were consolidated for sentencing purposes. PSR 5-6. There is no question that the use of a gun to rob a bank is a crime of violence. Indeed, in applying the categorical approach^[8]to the subsections of the statute which Floyd was convicted of violating, 18 U.S.C. §§ 2113(a) and (d),^[9] the Third Circuit has determined that the conduct proscribed thereunder is categorically a crime of violence under the elements clause of § 924(c)(3), as the least culpable...