United States v. Riley

UNITED STATES OF AMERICA, v. DERRICK RILEY and DONALD BROWN, Defendants.

96 CR 149 (RJD)

20 CV 2201 (RJD)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

May 26, 2021

MEMORANDUM & ORDER

DEARIE, District Judge.

Before the Court is a joint application by defendants Derrick Riley and Donald George Brown for habeas relief under 28 U.S.C. §2255. They seek to vacate their several convictions under 18 U.S.C. §924(c) (Riley has four, Brown has seven) on the basis of United States v. Johnson, 135 S. Ct. 2551 (2015), and United States v. Davis, 139 S. Ct. 2319 (2019), arguing that certain of the charged §924(c) predicates no longer qualify as crimes of violence. Also before the Court are separate motions by each defendant (Riley through counsel, Brown pro se), premised on certain narcotics-based counts of conviction, for a reduction in sentence pursuant to §404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).

For the reasons to be discussed, the joint motion for federal habeas relief and the motions for sentence reduction are denied in their entirety.

BACKGROUND

Following a seven-week jury trial on a 42-count Superseding Indictment (S-5), a jury convicted Derrick Riley of a host of serious criminal offenses, including conspiracy, racketeering, murder in aid of racketeering, money laundering, the running of a narcotics-based continuing criminal enterprise ("CCE") under 21 U.S.C. §848, and multiple firearm counts in connection with these crimes in violation of 18 U.S.C. §924(c), all committed in his role as leader of the violent Brooklyn drug gang known as the "Nineties Posse." The jury also convicted co-defendant Donald George Brown, Riley's principal deputy and enforcer, of many of the same crimes. Together, these defendants were found responsible for six murders.

Riley was sentenced principally to five concurrent life sentences on his CCE, racketeering and murder convictions, while Brown, who was convicted of several additional murders, was sentenced principally to eight concurrent life terms.¹ For each defendant's Section 924(c) convictions, the Court also imposed the then-required additional stacked terms running consecutively to each other and to the life terms, resulting in aggregate sentences of life plus 125 years for Brown and life plus 65 years for Riley.

The judgments of conviction, entered on April 26, 1999 (Brown) and December 16, 1999 (Riley), were affirmed by the Second Circuit. United States v. Brown, Nos. 99-1230(L), 99-1762, 2002 WL 34244994 (2d Cir. April 26, 2002).² The Supreme Court denied certiorari.Riley v. United States. 537 U.S. 933 (Oct. 7, 2002) (No. 02-5847); Brown v. United States, 537 U.S. 913 (Oct 7, 2002) (No. 02-5402).

DISCUSSION

I.The Motions Under 28 U.S.C. §2255

A. Procedural History

The defendants' current application for federal habeas relief is their second, this Court having initially denied habeas relief in a 2010 Memorandum and Order. Brown v. United States, 2010 WL 2594640 (E.D.N.Y. June 23, 2010).³ On June 9, 2016, within a year of the Supreme Court's Johnson decision, the defendants filed separate §2255 petitions first raising the claims now before the Court. ECF Nos. 440, 441. By orders dated July 20, 2017, this Court dismissed those filings as successive petitions over which the Court lacked jurisdiction. ECF Nos. 446, 447. The common practice of transfer to the Second Circuit was not necessary, however, because Riley and Brown had also filed motions there seeking leave to file their successive applications here; the Circuit had initially stayed those motions pending decisions in otherJohnson-based cases then pending in the Supreme Court and Second Circuit. By mandate dated May 15, 2020, the Second Circuit terminated its stay and granted Riley and Brown leave to file their successive §2255 motions on the basis of their argument that two of the predicates for certain of their §924(c) convictions—conspiracy to commit murder and conspiracy to commit robbery—were no longer categorical crimes of violence after Johnson and Davis. Brown v. United States, No. 16-2201 (L) (2d Cir. May 15, 2020), ECF No. 477.

The Circuit's mandate also included this important caveat:

We acknowledge that Petitioners' §924(c) conviction might still be supported by a valid predicate, even if one of the predicates is no longer valid after Johnson and Davis. However, making that determination in the present case would require detailed review of the criminal proceedings and factfinding that the district court is better suited to perform... . [T]hat type of detailed review and factfinding is generally inappropriate in a gatekeeping proceeding where the Court only needs to determine whether a prima facie showing has been made and the Court is statutorily required to reach a decision quickly.

Id. at 2.

The Circuit also acknowledged that it had "not examined all of the Petitioners' challenges to their §924(c) convictions," and that it did not have the entire record before it, having relied only on the parties' submissions and the presentence reports. Id.

B. Relevant Features of the Record

Relevant to the Davis-based motion for §2255 relief, Brown's seven §924(c) convictions are Counts 5, 8, 10, 14, 18, 21, and 30; Riley was convicted on four of the same counts—5, 8, 21, and 30. The charging language is as follows:

Count 5 (Brown and Riley): using a firearm in connection with the crimes charged in Count 3, conspiracy to murder Donovan Brown in aid of racketeering, and Count 4, the murderof Brown in aid of racketeering. S-5 at ¶¶ 51-56.⁴ The murder and murder conspiracy were also charged as Racketeering Act Number 1 under Count 1. Id. at ¶¶ 13-15.

Count 8 (Brown and Riley): using a firearm in connection with the crimes charged in Count 6, conspiracy to murder Mark Walters in aid of racketeering, and Count 7, the murder of Walters in aid of racketeering. Id. at ¶¶ 57-61. The murder and murder conspiracy were also charged as Racketeering Act Number 2 under Count 1. Id. at ¶¶ 16-18.

Count 10 (Brown): using a firearm in connection with the crime charged in Count 9, the murder of Renne Harris in aid of racketeering. Id. at ¶¶ 62-64. This murder was also charged as Racketeering Act Number 3 under Count 1. Id. at ¶ 19.

Count 14 (Brown): using a firearm in connection with the crimes charged in Count 12, conspiracy to murder Paul Smith in aid of racketeering, and Count 13, the murder of Smith in aid of racketeering. Id. at ¶¶ 66-70. The murder and murder conspiracy were also charged as Racketeering Act Number 4 under Count 1. Id. at ¶¶ 20-22.

Count 18 (Brown): using a firearm in connection with the crimes charged in Count 15, conspiracy to murder Hugh Walker and Mark Walker in aid of racketeering; Count 16, the murder of Hugh Walker in aid of racketeering; and Count 17, the murder of Mark Walker in aid of racketeering. Id. at ¶¶ 71-75. These two murders and the murder conspiracy were also charged as Racketeering Act Number 5 under Count 1. Id. at ¶¶ 23-26.

Count 21 (Brown and Riley): using a firearm in connection with the crimes charged in Count 19, conspiracy to murder "suspected members of a rival organization based in the vicinityof Sheffield and Livonia Avenues, Brooklyn, New York," in aid of racketeering; and Count 20, assault with a deadly weapon of "suspected members of a rival organization, in the vicinity of Sheffield and Livonia Avenues, Brooklyn, New York," in aid of racketeering, 18 U.S.C. §1959(a)(3). Id. at ¶¶ 78-82. The same conduct was charged as Racketeering Act Number 6 under Count 1. Id. at ¶¶ 27-29.

Count 30 (Brown and Riley): using a firearm in connection with the crimes charged in Count 27, Hobbs Act robbery conspiracy, and Count 29, substantive Hobbs Act robbery, both in violation of 18 U.S.C. §1951. Id. at ¶¶ 89, 91-92. The same conduct was charged as Racketeering Act Numbers 8 and 9 under Count 1. Id. at ¶¶ 34-35.

C. Legal Standard

The principles announced in and since Davis and Johnson are well established and require little discussion. As summarized by the Second Circuit, "[a]lthough prior to the Supreme Court's decision in Davis, 139 S. Ct. 2319, §924(c) also contained an alternative definition of crime of violence in subpart (c)(3)(B), 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 (2d Cir. 2021) (quoting, 18 U.S.C. §924(c)(3)) (emphases omitted).

Under this post-Davis standard, it is established, as the defendants recognize, that both assault in aid of racketeering and murder in aid of racketeering continue to qualify as crimes of violence for §924(c) purposes,⁵ while conspiracy to commit murder, as the governmentconcedes, does not. ECF 485 at 5-6.⁶

Finally, although neither the Supreme Court nor the Second Circuit has yet addressed in a binding precedential decision the post-Davis status of §924(c) convictions resting on both valid and invalid predicates, the Circuit has, in several summary orders, plainly rejected the theory that Riley and Brown advance here, namely, that the presence of one invalid predicate automatically invalidates the §924(c) conviction. See, e.g., United States v Minaya, 841 F. App'x. 301, 303-05 (2d Cir. Jan. 22, 2021) (upholding §924 conviction "rest[ing] on one valid predicate crime...and one arguably invalid predicate crime" because nature of charges and review of record left "no doubt that a rational juror would have convicted [the defendant] on the §924(c) charge even had [the valid predicate] been the sole predicate charged");⁷ Cooper v. United States, No. 16-1925, Dkt. 42, at 1 (2d Cir. Feb. 20, 2019) ("[a]lthough Petitioner's §924(c) and (j) convictions were predicated on several crimes of violence, they also were predicated on drug trafficking crimes....[and] [b]ecause Petitioner's predicate drug trafficking crimes were not affected byJo...