United States v. Serrano

UNITED STATES OF AMERICA v. SAMUEL SERRANO, Defendant.

SAMUEL SERRANO, Petitioner v. UNITED STATES OF AMERICA, Respondent

Nos. 15 Cr. 608-4 (KPF), 20 Civ. 9887 (KPF)

United States District Court, S.D. New York

May 6, 2022

OPINION AND ORDER

KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE

Samuel Serrano, who is presently housed at the Federal Correctional Institution at Ray Brook, New York (“FCI Ray Brook”), was sentenced by this Court on racketeering and firearms charges to an aggregate term of 138 months' imprisonment in January 2017. Mr. Serrano did not appeal from his conviction or sentence, but later filed a pro se motion for resentencing that this Court denied as untimely in July 2018. Thereafter, with the assistance of counsel, Mr Serrano filed (i) a motion pursuant to 28 U.S.C. § 2255 seeking vacatur of one of his counts of conviction and resentencing, and (ii) a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). For the reasons set forth in the remainder of this Opinion, this Court denies Mr Serrano's Section 2255 motion and grants in part his Section 3582(c)(1)(A)(i) motion.

BACKGROUND^[1]

A. The Charging Instruments and the Guilty Plea

Indictment 15 Cr. 608 (KPF) (the “Indictment”) was filed under seal on September 3, 2015, and unsealed six days later. (Dkt. #1, 2). Broadly speaking, the Indictment detailed criminal activities undertaken by the Taylor Avenue Crew (or the “Crew”), described as a “criminal organization whose members and associates engaged in, among other activities, narcotics trafficking, attempted murder, and murder” (Dkt. #1 at ¶ 1), while embroiled in a violent, years-long dispute with the rival Leland Avenue Crew (see, e.g., id. at ¶¶ 1-9). Mr. Serrano was charged in three of the eight counts of the Indictment with racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count One); narcotics conspiracy, in violation of 21 U.S.C. § 846 (Count Five); and the use, carrying, and discharge of a firearm during and in relation to, and possession in furtherance of, the racketeering conspiracy charged in Count One, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 (Count Seven).

Superseding Indictment S3 15 Cr. 608 (KPF) was filed on April 15, 2016. (Dkt. #73). Mr. Serrano was again charged with racketeering conspiracy (Count One) and narcotics conspiracy (Count Eight), but this time the firearms count was modified to charge him with the use, carrying, and discharge of a firearm during and in relation to, and possession in furtherance of, the racketeering conspiracy charged in Count One and the narcotics conspiracy charged in Count Eight (Count Fifteen). (Id.).

Mr. Serrano pleaded guilty to Counts One and Fifteen of the S3 Indictment on July 28, 2016. (Dkt. #121 (plea transcript)). He did so pursuant to a written plea agreement with the Government (the “Plea Agreement” (Dkt. #472-1 at 30-37)) that made clear, among other things, that (i) his plea to Count Fifteen was to the lesser-included offense of using, carrying, or possessing a firearm, but not discharging it; and (ii) Mr. Serrano's use, carrying, or possession of a firearm was in relation to both a crime of violence (the Count One racketeering conspiracy) and a qualifying narcotics trafficking offense (the Count Eight narcotics conspiracy). (Id. at 30, 31). Also in the Plea Agreement, the parties stipulated to a range under the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) of 168 to 195 months' imprisonment, which included a mandatory minimum term under Count Fifteen of 60 months' imprisonment that was to be imposed consecutive to any term of imprisonment imposed on Count One. (Id. at 34).

During Mr. Serrano's plea allocution, the Court discussed with him the offenses to which he proposed to plead guilty, viz., Counts One and Fifteen, and had the prosecutor outline the elements of each offense. With particular respect to Count Fifteen, the prosecutor explained as follows:

Then with respect to Count 15, the elements are, first, that the defendant committed a crime for which he might be prosecuted in a court of the United States, here, narcotics trafficking and the racketeering conspiracy; second, that the defendant knowingly used or carried or possessed a firearm during and in relation to or in furtherance of these crimes, or aided and abetted others in doing the same.

(Dkt. #121 at 14-15 (emphasis added)). Later in the proceeding, the Court directed Mr. Serrano's attention to the specific paragraph of the Plea Agreement that discussed the lesser-included offense of Count Fifteen to which he proposed to plead guilty; that paragraph also referenced both the racketeering and narcotics trafficking conspiracies. (Id. at 22-23). And the Court reviewed with Mr. Serrano his waiver of his right to appeal and to collaterally challenge certain components of his sentence, including any sentence of imprisonment within or below the stipulated Guidelines range of 168 to 195 months' imprisonment. (Id. at 25).

When asked by the Court to explain what he had done that made him believe that he was guilty of the offenses charged in Counts One and Fifteen of the S3 Indictment, Mr. Serrano began as follows:

From in or around 2012 through September, 2015, in the Southern District of New York, I was a member of Taylor Ave Gang. When I was a member, I agreed to with others to participate in activities, including possession of a firearm and drug dealing crack cocaine. On March 4[, 2012], I participated in a shooting in the Bronx. I fired a gun through an apartment building.

(Dkt. #121 at 27). The Court then asked several clarifying questions concerning Mr. Serrano's conduct, which prompted the following exchange:

THE COURT: So Taylor as an organization engaged in narcotics trafficking, among other things; is that correct?

THE DEFENDANT: Yes.

THE COURT: And they sold crack cocaine?

THE DEFENDANT: Yes.

THE COURT: And they sold it in the Bronx?

THE DEFENDANT: Yes.

THE COURT: In addition, in order to protect their territory or to aid them in continuing their operations, Taylor also had people in the organization use guns, correct?

THE DEFENDANT: Yes.

THE COURT: So is it fair to say that there were threats of violence or actual violence in order to protect or preserve the Taylor Avenue Crew?

THE DEFENDANT: Yes.

THE COURT: In part, that was because there were rivalries with other groups, such as the Leland Avenue Crew; is that fair to say, as well, sir?

THE DEFENDANT: Yes.

THE COURT: So you told me a few moments ago that you agreed with others [in] Taylor to do things. So what you did as part of your agreement was to sell crack cocaine?

THE DEFENDANT: Yes.

THE COURT: Did you also agree to use or carry or possess a gun in connection with Taylor's activities?

THE DEFENDANT: Yes.

THE COURT: Separately, you mentioned that in connection with these activities, you once, in March of 2012, fired a gun through a door; is that correct?

THE DEFENDANT: Yes.

THE COURT: Working backwards, sir. When you agreed with others in Taylor to engage in these activities, did you know that what you were doing was wrong and illegal?

THE DEFENDANT: Yes, I did.

THE COURT: And when you possessed the gun in connection with these activities, and when you fired the gun, did you also know that what you were doing was wrong and illegal?

THE DEFENDANT: Yes.

(Id. at 28-29).^[2]

The Court also asked the Government to outline the evidence that it would introduce if Mr. Serrano were to proceed to trial, which included

rap videos from YouTube that involved the defendant and other members of the Taylor Avenue Crew displaying gang signs and rapping about shootings and dealing drugs, multiple cooperating witnesses who would testify that the defendant sold crack cocaine on Taylor Avenue for the Taylor Avenue Crew as far back as 2012 and in the 2014 to 2015 time period, testimony from NYPD officers regarding the defendant's prior arrests during the conspiracy period for crack sales and crack cocaine possession, and also cooperating witnesses, law enforcement testimony, and video regarding the March, 2012 shooting.

(Dkt. #121 at 32-33). Mr. Serrano acknowledged listening to this recitation of evidence. (Id. at 33). At the conclusion of the proceeding, the Court accepted Mr. Serrano's guilty plea. (Id. at 34).

B. The Sentencing

The Probation Office prepared a Presentence Investigation Report in anticipation of Mr. Serrano's sentencing. (Dkt. #142 (Final Presentence Investigation Report (“PSR”))). After discussing at some length the rivalry between the Taylor and Leland Avenue Crews, and the escalating acts of violence that marked that rivalry, the PSR addressed the roles of each of the defendants charged in the instant case. (PSR ¶¶ 38-64). Mr. Serrano was described as (i) a “Taylor Avenue Crew member who personally distributed crack cocaine on Taylor Avenue ” (ii) who “carried guns in connection with his membership in the Taylor Avenue Crew, ” (iii) who once “brandished a firearm to threaten an individual with whom members of the Taylor Avenue Crew had a dispute, ” and (iv) who attempted to kill a member of the Leland Avenue Crew by firing two shots into an apartment where he believed the Leland member was staying. (Id. at ¶¶ 47-48).^[3]

In his sentencing submission, Mr. Serrano acknowledged that “[h]e was involved with a gang that engaged in violence and drug-dealing.” (Dkt. #176 at 9; see also id. at 10 (“[Mr. Serrano's] role in drug-dealing was limited to streetlevel sales, as opposed to high-volume trafficking.”)). The Government, in its sentencing submission, reiterated that the firearms charge in Count Fifteen pertained to both the racketeering conspiracy charged in Count One and the narcotics conspiracy charged in Count...