United States v. Walker

314 F.Supp.3d 400

UNITED STATES of America,

v.Shameke WALKER, Defendant.

15–CR–388

United States District Court, E.D. New York.

Signed May 17, 2018

Andrey Spektor, Lindsay Gerdes, United States Attorney's Office, 271 Cadman Plaza East, Brooklyn, NY 11201, for The United States of America.

Michael Hueston, 16 Court Street, Suite 3301, Brooklyn, NY 11241, for Shameke Walker.

MEMORANDUM & STATEMENT OF REASONS

Jack B. Weinstein, Senior United States District Judge

Table of Contents

I. Introduction...405

A. The Crime...405

B. Rule 29 Motion...405

C. Statutory and Guidelines Sentencing Enhancements...406

D. Sentence...406

II. Facts...406

A. Event...406

B. Walker's Criminal History...407

III. Law...407

A. Motion for a Judgment of Acquittal...407

i. Hobbs Act Robbery, 18 U.S.C. § 1951...407

ii. Multiplicity...407

iii. Hobbs Act and Double Jeopardy...408

B. Sentencing Enhancements Under Federal Law and the Guidelines...410

i. Armed Career Criminal Act, 18 U.S.C. § 924(e)...410

ii. Career Offender Guidelines, U.S.S.G. § 4B1.1...411iii. Categorical Approach...411

iv. Modified Categorical Approach...412

IV. Application of Law to Facts...413

A. Multiplicity...413

B. Armed Career Criminal Act; New York Second Degree Robbery...414

C. Career Offender Guidelines...415

i. Hobbs Act Robbery...415

ii. Possessing, Brandishing, and Discharging a Firearm During a Crime of Violence, 18 U.S.C. § 924(c)...416

iii. Felon in Possession of Ammunition, 18 U.S.C. § 922(g)(1)...417

V. 18 U.S.C. § 3553(a) Considerations and Guidelines Calculation...417

A. Walker's Background...417

B. Statutory Sentencing Range and Guidelines Calculation...417

i. Offense Level Calculation...418

ii. Criminal History Calculation...419

iii. Total Calculation...419

VI. Conclusion...419

I. Introduction

A. The Crime

During the robbery of a bodega in Brooklyn, New York, Shameke Walker ("Walker") fired at a store clerk with a revolver. The bullet missed the clerk, but pierced the leg of an uninvolved security guard standing across the street.

Walker was arrested and charged with four counts: (1) Hobbs Act Robbery, 18 U.S.C. § 1951(a) ; (2) committing physical violence in furtherance of a Hobbs Act Robbery, 18 U.S.C. § 1951(a) ; (3) possessing, brandishing, and discharging a firearm during a crime of violence, 18 U.S.C. § 924(c) ; and (4) being a felon in possession of ammunition, 18 U.S.C. § 922(g)(1).

Under federal law, Walker could not be charged with attempted murder or assault, as he could have been under New York State law, for the shooting of the security guard. Taylor v. United States , ––– U.S. ––––, 136 S.Ct. 2074, 2082–83, 195 L.Ed.2d 456 (2016) (Thomas, J., dissenting) ("The Constitution expressly delegates to Congress authority over only four specific crimes ... Given these limited grants of federal power, it is 'clea[r] that Congress cannot punish felonies generally.' ") (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428, 5 L.Ed. 257 (1821) (Marshall, C. J.) ). The Government attempted to avoid this issue by charging Walker twice under the Hobbs Act—once for robbery and once for violence in furtherance of the robbery.

B. Rule 29 Motion

In mid-trial motions, Walker argued that Count One, Hobbs Act Robbery, and Count Two, violence in furtherance of Hobbs Act Robbery, were multiplicitous, violating his Fifth Amendment protection against double jeopardy. Trial Tr. 533:3–9, Jul. 14, 2018 ("Count One and Count 2 both charge Hobbs Act Robbery, 18 U.S.C. 1951. It is not that there are two subsections, it is not Part A and Part B or Clause 1 and Clause 2 ... both of those charges charge the exact same statute. When we look at the facts in the case and the language of the statute, they do so in exactly the same way."). The court reserved decision on the motion, letting all four counts go to the jury. Walker was found guilty as charged. See ECF No. 115, Jul. 15, 2016; ECF No. 118, Jul. 18, 2016.

Because the elements of proof required for Hobbs Act Robbery are sufficient to prove violence in furtherance of Hobbs Act Robbery, Count Two is dismissed as multiplicitous. United States v. Ansaldi , 372 F.3d 118, 124 (2d Cir. 2004) ("An indictment is multiplicitous if it charges the same crime in two counts.").

C. Statutory and Guidelines Sentencing Enhancements

Walker argues that his prior and current offenses do not designate him as an Armed Career Criminal, 18 U.S.C. § 924(e), nor do they qualify for a sentence enhancement under the Career Offender Guidelines, U.S.S.G. § 4B1.1.

Walker has a long history of violent and criminal acts. Under the sentencing Guidelines and federal law, however, he is not subject to a sentence enhancement as a violent predicate offender.

Mandatory minimum statutes constitute the basis for a major category of excessive federal sentences. Whenever it is reasonable to do so based on the language of the applicable statute, we should construe it against mandatory minimum sentences. United States v. Dossie , 851 F.Supp.2d 478, 478 (E.D.N.Y. 2012) ("[Mandatory Minimums] strip criminal defendants of the due process rights we consider fundamental to our justice system.").

The rule of lenity is particularly useful in moderating excessive mandatory minimum sentences. See Rewis v. United States , 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971) ("Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity."). Neither the Armed Career Criminal Act nor the Career Offender Guidelines are applicable to Walker.

D. Sentence

Walker is sentenced to 10 years on Count Three, brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c), to run consecutive to a sentence of time served on Count One, Hobbs Act Robbery, 18 U.S.C. § 1951(a), and Count Four, felon in possession of ammunition, 18 U.S.C. § 922(g)(1).

Walker has been in custody since July 15, 2015. Presentence Report ("PSR") at 1. The sentence of time served on Counts One and Four amounts to approximately 34 months' incarceration. Walker's combined term of imprisonment will be almost 13 years. He is sentenced to five years' supervised release.

II. Facts

A. Event

In the early morning of June 13, 2015, Walker entered a convenience store; he was armed with a handgun. Trial Tr. 11:24–12:4, Jul. 11, 2016. Drawing his gun, he demanded cash from the store clerk, Barry Almontaser. Id. at 172:12–14, Jul. 12, 2016. Walker stole two telephones, two cartons of cigarettes, and $700 from the register. Id. at 172:15–20. While Walker was pocketing the stolen items, the store clerk, in an attempt to stop him from leaving, cut a rope used to hold the front glass door open. Id. at 174:7–25.

As the store clerk was shutting the door from the outside, Walker shot once at him through the glass. Id. at 175:16–17.

The bullet shattered the glass door, narrowly missed the store clerk, and traveled across the street hitting a security guard in the leg. Evidence that the bullet hit a security guard was excluded at trial as unduly prejudicial. See Old Chief v. United States , 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ; Hr'g Tr. at 33:25–34:20, Jun. 22, 2016 ("You are going to have [evidence that] the bullet went through the window after the gun was shot, and from the direction it went across the street. But I am not going to allow in evidence that a civilian was shot. That prejudices the case entirely.").

The store clerk ran from the scene; Walker nonchalantly pedaled away on his bike with the stolen goods. Id. at 176:22–25.

B. Walker's Criminal History

The government argues that three of Walker's prior convictions are relevant in considering sentence enhancements under the Armed Career Criminal Act and Career Offender Guidelines. See Gov't Sentencing Mem., ECF No. 138.

1. In 1991, Robbery in the Second Degree (Aided by Another), New York Penal Law § 160.10(1). Walker was sentenced to 54 months' incarceration. PSR at ¶ 37.

2. In 1999, Strong Arm Robbery, South Carolina Penal Law § 16–11–330(A). Walker was sentenced to 10 years' incarceration. PSR at ¶ 42.

3. In 2010, Aiding and Abetting Assault with a Dangerous Weapon with Intent to do Bodily Harm, 18 U.S.C. § 113(a)(3). This crime took place while Walker was incarcerated at a federal penitentiary. PSR at ¶ 45. He was sentenced to 18 months in prison. Id.

III. Law

A. Motion for a Judgment of Acquittal

Under Federal Rule of Criminal Procedure 29, a defendant may move for a judgment of acquittal on the theory that the Government's evidence is insufficient to sustain a conviction. Where the motion is made before the close of all the evidence, "the court may reserve decision on the motion, proceed with the trial ... submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty ... If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 29(b).

i. Hobbs Act Robbery, 18 U.S.C. § 1951

18 U.S.C. § 1951(a) provides:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

Under this section, "robbery" is defined as:

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

18 U.S.C. § 1951(b)(1).

ii. Multiplicity

The Fifth Amendment to the United States Constitution provides that no person shall "twice be put in jeopardy of life or limb" for the...