United States v. Roebuck

UNITED STATES OF AMERICA, v. RANDALL ROEBUCK, JR., Defendant.

Case No.: 4:11cr20/RH/CAS

Case No.: 4:13cv612/RH/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

January 31, 2017

REPORT AND RECOMMENDATION

Defendant Randall Roebuck, through appointed counsel, filed an amended Motion to Correct Sentence Under 28 U.S.C. § 2255 and a supplement thereto contending that he is entitled to sentencing relief pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF Nos. 70, 74). The Government filed a response in opposition, and Defendant filed a reply. (ECF Nos. 75, 78). This case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a review of the record and the arguments presented, it is the opinion of the undersigned that Defendant has not raised any issue requiring an evidentiary hearing and that the § 2255 motion should be denied. See Rules Governing Section 2255 Cases 8(a) and (b).

BACKGROUND

Defendant Randall Roebuck, Jr., was convicted after a jury trial of possessing a firearm and ammunition as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (ECF Nos. 1, 21). Defendant's final Presentence Investigation Report ("PSR") reflected a base offense level of 20 and a two level adjustment because the firearm in his possession had been reported stolen for an Adjusted Offense Level of 22. (ECF No. 31, PSR ¶¶ 15, 16, 20). Pursuant to the Armed Career Criminal Act, ("ACCA"), 18 U.S.C. § 924(e), a person who has three previous convictions for a violent felony, a serious drug offense, or both, is classified as an armed career criminal, and is subject to a mandatory minimum fifteen year penalty. Additionally, the sentencing guidelines provide for an enhanced sentence for such an individual. U.S.S.G. § 4B1.4(a) and (b)(3)(B). Roebuck qualified for these enhanced penalties due to prior convictions for Aggravated Assault with a Deadly Weapon, Armed Robbery with a Firearm; Armed Carjacking; False Imprisonment (two charges); Armed Robbery with a Deadly Weapon, Burglary of a Dwelling with Person Assaulted. (ECF No. 31, PSR ¶ 21). As a result of the Chapter Four enhancement, his offense level became 33. Roebuck's criminal history category was VI, yielding a guidelines range of 235 to 293 months. The court sentenced him at the low end of this range to a term of 235 months imprisonment, followed by five years of supervised release. (ECF No. 36). Defendant appealed, challenging the assessment of criminal history points for some of his prior convictions. The Eleventh Circuit affirmed (ECF No. 55), and the Supreme Court denied Defendant's petition for certiorari on October 7, 2013. (ECF No. 59).

Defendant timely filed a pro se motion to vacate pursuant to 28 U.S.C. § 2255 in November of 2013. (ECF No. 60). The Government responded and Defendant filed a reply. (ECF Nos. 64, 65). While the motion was pending, the Supreme Court issued its decision in Johnson v. United States, 135 S. Ct. 2551 (2015) invalidating the so-called "residual clause" of the Armed Career Criminal Act. Defendant requested the appointment of counsel to assess his eligibility for relief under Johnson, which request the undersigned denied as moot in light of the standing order of appointment of the Federal Public Defender for this same purpose. (ECF Nos. 66, 67). The Office of the Federal Public Defender filed a Motion to Withdraw and for Substitution of Counsel because Defendant's original motion included allegations of ineffectiveness against an attorney from that office who had represented Defendant at trial. (ECF No. 68). The district court granted the motion and appointed William Edward Bubsey, Esq. to represent Defendant. (ECF No. 69). Mr. Bubsey filed a "placeholder" amended motion to vacate, followed by a supplement thereto. (ECF Nos. 71, 74). Defendant's amended motion did not reallege the claims raised in his original motion, and as such they are deemed abandoned. Local Rule 15.1(A). Roebuck now alleges that after Johnson, he no longer qualifies as an armed career criminal and that he is entitled to resentencing without the application of the ACCA enhancement. The Government opposes the motion.

ANALYSIS

Pursuant to the Armed Career Criminal Act, ("ACCA"), a person who has three previous convictions for a violent felony, a serious drug offense, or both is subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). The statutory definition of a violent felony under the ACCA is an offense that either "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the elements clause] or (ii) is burglary, arson, or extortion, involves the use of explosives [known as the enumerated offenses clause] or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the residual clause]." 18 U.S.C. § 924(e)(2)(B)(i) and (ii). An individual subject to ACCA's enhanced penalties also is subject to a greater guidelines range pursuant to U.S.S.G. § 4B1.4. Defendant was sentenced to a term of 235 months imprisonment. Absent the application of the ACCA enhancement, he would have faced a maximum sentence of ten years imprisonment. See 18 U.S.C. § 924(a)(2).

In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court ruled that the ACCA's "residual clause" was unconstitutionally vague. Johnson, 135 S. Ct. at 2563. Thus, a prior conviction can only qualify as a "violent felony" if it falls within the elements clause or is one of the enumerated offenses.

Defendant's ACCA sentence was based on four of Defendant's prior convictions. These convictions were: (1) two post-April 24, 1997¹convictions for armed robbery with a firearm, in violation of § 812.13(2)(a), Florida Statutes (PSR ¶¶ 26, 29); a post-April 24, 1997 conviction for armed carjacking in violation of § 812.13(2)(a), Florida Statutes (PSR ¶ 28); and a post July 1, 1975 conviction for aggravated assault with a deadly weapon, in violation of § 784.021(1)(a) (PSR ¶ 25). (See also ECF No. 48 at 2-4). The Government concedes that none of these convictions was for an enumerated crime, but argues that each qualifies as a violent felony under the elements clause.

1. Florida Armed Robbery with a Firearm

Defendant pleaded nolo contendere and was adjudicated guilty for two separate incidents of armed robbery with a firearm. (ECF No. 31, PSR ¶¶ 26, 29). Although the offense conduct in the two incidents took place in April and March of 1997 respectively, the convictions occurred on August 22, 1997, after the Florida Supreme Court's Richardson decision, noted above. The Eleventh Circuit held in United States v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016), that the defendant's six August 13, 1997 Florida convictions for armed robbery with a firearm qualified as violent felonies under the ACCA's elements clause. Seabrooks, 839 F.3d 1326, 1332, 1340-41 (11th Cir. 2016); Seabrooks, 839 F.3d at 1346 (Baldock, J., concurring); Seabrooks, 839 F.3d at 1346, 1350-51 (Martin, J., concurring). The court has since held that even armed robbery convictions that occurred before the Florida Supreme Court clarified the definition of robbery under Florida law in Robinson are violent felonies under the ACCA's elements clause. See United States v. Fritts, 841 F.3d 937 (11th Cir. 2016).

Defendant appears to concede in his reply that the Seabrooks decision is controlling, although he disagrees with the basis for that decision. (ECF No. 78 at 6-10). Defendant contends that the case upon which Seabrooks relied, United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011), did not address the arguments he raises herein, to wit, that it is impossible to know in any given case which means of committing robbery: (1) force, (2) violence, (3) assault, or (4) putting in fear, was used. See Clark v. State, 43 So. 3d 814, 816 n.3 (Fla 1st DCA 2010) (citing Horn v. State, 677 So. 2d 320, 323 (Fla. 1st DCA 1996)). Defendant argues that a Florida robbery conviction does not require proof of "violent force" capable of causing physical pain or injury to another person as required by Curtis Johnson v. United States, 559 U.S. 133 (2010). Rather, he notes that it can be sustained by the application of any level of force sufficient to overcome the victim's resistance, however weak, and that other types of force, such as giving a victim a substance to make him incapable of resisting, possession of an unseen firearm, or force used against third parties during the course of the taking, can provide a basis for conviction. Lockley, Defendant argues, did not address the "force" issues he raises here, and therefore the Seabrooks' court's reliance on Lockley renders that precedent invalid with respect to his claim.

The Seabrooks court provided two alternative bases for its decision. It also relied, alternatively, on another Eleventh Circuit case which held that a 1974 Florida conviction for armed robbery was "undeniably a conviction for a violent felony" under the ACCA's elements clause. Seabrooks, 839 F.3d at 1339 (quoting United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006)).

This court cannot disregard Seabrooks based on Defendant's disagreement with one portion of its analysis. Therefore, Defendant's Florida convictions for armed robbery with a firearm, contained in paragraphs 26 and 29 of the PSR, continue to qualify as ACCA predicate convictions after Johnson.

2. Florida Armed Carjacking

Defendant also had an August 1997, conviction for armed carjacking that was used to support the ACCA enhancement. (ECF No. 31 at ¶ 28). No case has specifically addressed whether Florida carjacking is a violent crime under the ACCA after Johnson. However, comparison of the Florida robbery and the Florida...