United States v. Johnson

• Decision Date: 12 November 2016
• Docket Number: 15–CR–32 (BMC)
• Parties: UNITED STATES of America, v. Terence JOHNSON, Defendant.
• Court: U.S. District Court — Eastern District of New York

220 F.Supp.3d 264

UNITED STATES of America,

v.Terence JOHNSON, Defendant.

15–CR–32 (BMC)

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

Signed November 12, 2016

Karen L. Koniuszy, United States Attorney's Office, Brooklyn, NY, for United States of America.

Jan Alison Rostal, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge

Defendant was found guilty on May 31, 2016 of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), based on a bench trial on stipulated facts that he possessed a firearm on January 10, 2015 and that prior to that date, he had been convicted of a crime punishable by imprisonment for a term exceeding one year. He is awaiting sentencing.

Defendant has objected to the Presentence Investigation Report's ("PSR") calculation of his advisory United States Sentencing Guidelines' ("U.S.S.G.") sentencing range of fifty-seven to seventy-one months. His objections are twofold.

First, the PSR used an enhanced base offense level of twenty-four. That was based on its conclusion that defendant committed the instant offense subsequent to sustaining two felony convictions that constituted crimes of violence. Defendant argues that the use of the enhanced base offense level is improper because his prior New York conviction for attempted robbery in the second degree is not a crime of violence.

Alternatively, defendant argues that if the Court finds that defendant's conviction for attempted robbery is a crime of violence under the 2016 Guidelines Manual, then the use of the 2016 Guidelines would violate the prohibition of ex post facto sentences under Article I, Section 9 of the Constitution. Defendant asserts that the 2016 Guidelines Manual applies a higher sentencing range than the 2014 Guidelines, which were in effect on January 10, 2015, the day he committed the offense.

I find that defendant's prior convictions are crimes of violence under the 2016 Guidelines Manual, but that to apply the 2016 Guidelines would result in a Guidelines range higher than the 2014 Guidelines Manual. I therefore will use the 2014 Guidelines, resulting in a lower Guidelines range.

BACKGROUND

In anticipation of defendant's sentencing, the Probation Department, in the PSR, calculated a base offense level of twenty-four, based on its conclusion that defendant had sustained two predicate convictions under U.S.S.G. § 2K2.1(a)(2) : (1) a December 2009 conviction for attempted robbery in the second degree in violation of New York Penal Law § 160.10 ; and (2) a June 2009 conviction for robbery in the third degree, in violation of New York Penal Law § 160.05. After applying in an addendum a three-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), the Probation Department calculated an adjusted offense level of twenty-one.

The guideline for defendant's conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) is U.S.S.G. § 2K2.1. Section 2K2.1(a)(2) provides for an enhanced base offense level of twenty-four, "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." Application Note 1 of the commentary to § 2K2.1 instructs that " ‘crime of violence’ has the meaning given to that term in [U.S.S.G.] § 4B1.2(a) and Application Note 1 of the commentary to § 4B1.2."

DISCUSSION

I. Defendant's Prior Convictions for Robbery and Attempted Robbery are Crimes of Violence Under the 2016 Guidelines Manual

The first issue is whether defendant's prior convictions for robbery in the third degree and attempted robbery in the second degree are crimes of violence under the 2016 Guidelines Manual, such that defendant is subject to an enhanced base offense level of twenty-four. Section 4B1.2 in the 2016 Guidelines Manual defines "crime of violence" as any state or federal offense punishable by more than one year imprisonment if it:

(1) has an element the use, attempted use, or threatened use of physical force against the person of another; or

(2) is murder, voluntary manslaughter kidnapping, aggravated assault, a forcible sex offense, robbery, arson, or extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 584(a) or explosive material as defined in 18 U.S.C. 841(c).

U.S.S.G. § 4B1.2(a). Section 4B1.2(a)(1) is referred to as the "force clause" and § 4B1.2(a)(2) is referred to as the "enumerated offense clause." Application Note 1 of the commentary to § 4B1.2 states that " ‘crime of violence’ ... include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses."

Importantly, the 2016 Guidelines Manual includes robbery as an enumerated felony. Where a specific offense is listed as a qualifying felony, "then the trial court need find only that the state statute corresponds in substance to the generic meaning" of that enumerated felony. Taylor v. United States , 495 U.S. 575, 599, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). Applying this principle here, if New York's robbery offense "corresponds substantially to the generic meaning of robbery, then the offense qualifies categorically as a crime of violence for Guidelines enhancement purposes." United States v. Walker , 595 F.3d 441, 445–46 (2d Cir. 2010) (internal quotation marks omitted). Defendant concedes that New York's robbery offense corresponds substantially to the generic meaning of robbery and that his prior conviction for robbery in the third degree qualifies as a crime of violence under the 2016 Guidelines Manual.

However, defendant argues that his prior conviction for attempted robbery in the second degree is not a crime of violence because Application Note 1, instructing that "crime of violence" includes attempt offenses, effectively broadens the scope of the Guideline beyond its language. Because the Sentencing Commission was not authorized to promulgate commentary that expands the definition of "crime of violence," defendant asserts that the commentary must be disregarded in favor of the text, which does not list attempted robbery as a crime of violence. The Government responds by arguing that: (1) Application Note 1 is controlling because it merely interprets § 4B1.2(a) ; and (2) the Second Circuit has previously rejected the argument that the Sentencing Commission exceeded its statutory authority by including offenses for attempt, and other inchoate crimes, as crimes of violence in commentary.

"Commentary in the Sentencing Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States , 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993) ; see also United States v. Pedragh , 225 F.3d 240, 244 (2d Cir. 2000) ("[C]ommentary is ‘binding authority,’ unless it is inconsistent with the underlying guideline.") (quoting United States v. Jackson , 60 F.3d 128, 131 (2d Cir. 1995) ). For example, in United States v. Mingo , 340 F.3d 112 (2d Cir. 2003), the Second Circuit applied accompanying application notes, defining "gross receipts" in U.S.S.G. § 2F1.1 to include " ‘all property, real or personal, tangible or intangible, which is obtained directly or indirectly,’ " as "binding commentary." (internal citation omitted).

Although the Second Circuit previously held in United States v. Jackson , 60 F.3d 128 (2d Cir. 1995), that Application Note 1 of the commentary to § 4B1.2, including offenses for aiding and abetting, conspiracy, and attempt, is "binding authority," the Court's decision was based on an interpretation of a previous version of the Guidelines. As discussed below, previous versions of § 4B1.2(a)(2), including the 1995 Guidelines Manual at issue in Jackson , contained language that a crime of violence was one that "involve[d] conduct that presents a serious potential risk of physical injury to another." This clause, known as the residual clause, is absent from the 2016 Guidelines Manual. Because the Jackson opinion is unclear as to whether the residual clause factored into the Court's finding, Jackson is not helpful in interpreting the amended language in § 4B1.2(a) in the 2016 Guidelines Manual.

However, even under the amended 2016 Guidelines Manual, Application Note 1 is controlling because it interprets the enumerated offenses listed in § 4B1.2(a)(2). Application Note 1 explains that the term "robbery" includes convictions for aiding and abetting, conspiring, and attempting to commit robbery. I see nothing inconsistent between the text of § 4B1.2(a), listing robbery as an enumerated offense, and Application Note 1, instructing that convictions for attempted robbery are included. The language of the Guideline leaves it an open question as to whether an attempt to commit the crime is included within the crime itself. The Application Note answers that question. Thus, defendant's prior conviction for attempted robbery in the second degree is a crime of violence under the 2016 Guidelines Manual.

Because defendant's convictions for robbery and attempted robbery are both crimes of violence under the 2016 Guidelines Manual, the PSR correctly calculates defendant's base offense level as twenty-four, his total offense level as twenty-one, and his recommended sentencing range of fifty-seven to seventy-one months' imprisonment under the 2016 Guidelines Manual.

II. Application of the Ex Post Facto Clause

Defendant next argues that sentencing him under the 2016 Guidelines Manual violates the ex post facto clause because, even if his previous convictions are crimes of violence under the 2016 Guidelines Manual, as I have found, they are not crimes of violence under the 2014 Guidelines Manual, which would result in a lower Guidelines range. To avoid such a violation, defendant asserts that the 2014 Guidelines...