UNITED STATES OF AMERICA,
v.
MAILK FOLKS, Defendant.
16-CR-323
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
July 2, 2019
ORDER ON MOTION TO VACATE CONVICTION
| Parties: | Appearances: |
| For United States | Andrey Spektor United States Attorney's Office Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6475 |
| For Defendant | Mitchell A. Golub M. Golub PLLC 225 Broadway, Suite 1515 New York, NY 10007 212-566-2242 |
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JACK B. WEINSTEIN, Senior United States District Judge:
I. Introduction ............................................................................................................................. 1
II. Background ............................................................................................................................. 1
III. Law .......................................................................................................................................... 2
IV. Application of Law to Facts .................................................................................................... 3
V. Conclusion ............................................................................................................................... 4
I. Introduction
It is a crime to brandish a firearm in furtherance of a crime of violence. The offense carries a seven-year mandatory minimum term of incarceration.
Defendant Malik Folks ("Folks" or "Defendant") was sentenced to the mandatory minimum for that offense following his participation in a robbery in Brooklyn, New York. He stipulated to participating in a Hobbs Act robbery and conspiracy to commit Hobbs Act robbery. Defendant now moves to vacate his conviction, arguing that neither of the offenses of which he stipulated commission are crimes of violence. The government disagrees.
Defendant is correct that one of the offenses—conspiracy to commit Hobbs Act robbery—is not a crime of violence, but Hobbs Act robbery is. This is sufficient to sustain his conviction. Defendant's motion is denied.
II. Background
In 2016, Folks, together with others, broke into an apartment in Brooklyn and robbed a family at gunpoint. United States v. Rivera, 281 F. Supp. 3d 269, 273 (E.D.N.Y. 2017). He was charged with (1) Hobbs Act robbery, (2) conspiracy to commit Hobbs Act robbery, and (3) brandishing a firearm in furtherance of a crime of violence. Id. at 274-75. Defendant ultimately pled guilty to Count Three. Id. at 275. He stipulated to participation in two crimes of violence—Hobbs Act robbery and conspiracy to commit Hobbs Act robbery. Id. He did not plead guilty to either offense. Id.
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Constrained by a mandatory minimum term of incarceration, this court—despite its concerns about the excessive statutory mandatory minimum—sentenced him to the minimum term of 84 months' incarceration. Id. at 288; see id. at 271 ("Statutorily mandated incapacitory sentences are usually unnecessary to increase public safety, or prevent recidivism; they place a tremendous financial burden on society through excessive incarceration." (citation omitted)).
In April 2019, Defendant moved pro se for modification of his sentence. See Mot. Modification Sentence Pursuant 18 U.S.C. § 3582(c)(2), Apr. 4, 2019, ECF No. 215. Counsel was appointed to prosecute the motion. He argues that Defendant's conviction should be vacated because neither Hobbs Act robbery nor conspiracy to commit Hobbs Act robbery are crimes of violence. See Letter from M. Golub, May 5, 2019, ECF No. 219....
