James v. United States

• Decision Date: 08 January 2020
• Docket Number: Civil Case No. 1:16-cv-00477-MAT,Criminal Case No. 1:07-cr-00139-MAT
• Parties: GARY N. JAMES, Jr., Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of New York

GARY N. JAMES, Jr., Movant, v. UNITED STATES OF AMERICA, Respondent.

Civil Case No. 1:16-cv-00477-MAT

Criminal Case No. 1:07-cr-00139-MAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

January 8, 2020

DECISION AND ORDER

I. Introduction

Represented by counsel, Gary N. James, Jr. ("James") has filed a motion to set aside or correct his sentence under 28 U.S.C. § 2255 ("§ 2255") pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), and a supplemental § 2255 motion pursuant to United States v. Davis, 139 S. Ct. 2319 (2019).¹ For the reasons discussed below, James's § 2255 motion and supplemental § 2255 motion are denied.

II. Factual Background and Procedural History

In an Indictment returned on June 20, 2007, James was charged, along with co-defendants Jermaine Ellison ("Ellison") and Alphonso Moody ("Moody"), of violating a number of federal criminal statutes in connection with their armed robbery of a person cooperating withfederal law enforcement. The victim of the robbery was in possession of $1,500 in government funds intended to be used to purchase a TEC-DC9, 9 mm. caliber semiautomatic pistol from James, Ellison, and Moody. However, they determined that they were going to rob the cooperator of the $1,500 instead of selling him the weapon. The robbery took place on January 11, 2007, in a Wal-Mart parking lot in Niagara Falls. Ellison acted as the driver and lookout, while James and Moody effectuated the robbery. During the course of the robbery, James shot the cooperator in the left leg. Then, while attempting to flee the scene, James fired one shot from the pistol he was carrying, narrowly missing one of the law enforcement officers.

James was named in Counts 1 through 9 of the Indictment; he eventually pleaded guilty to Counts 1, 4, 7, and 9. The instant § 2255 motion challenges Count 9, which charged a violation of 18 U.S.C. § 924(c)(1)(A)(iii) ("§ 924(c)(1)(A)(iii)") as follows:

On or about the 11th day of January, 2007, in Niagara Falls, New York, in the Western District of New York, the defendant, GARY N. JAMES, Jr., during and in relation to crimes of violence for which he may be prosecuted in a court of the United States, namely, violations of Title 18, United States Code, Sections 111 and 1114 committed in the manner set forth in Counts 7 and 8 of this Indictment, the allegations of which are incorporated herein by reference, did knowingly and unlawfully use and carry, and in furtherance of said crimes of violence did knowingly and unlawfully possess, a firearm, to wit, an Iver Johnson Arms, Inc., Model TP22, .22 caliber, semiautomatic pistol, bearing serial number AE73105, and in the course of said carrying, use and possession did discharge said firearm.

Indictment at 10-11 (ECF #18) (emphases supplied).

Count 8 charged a violation of 18 U.S.C. § 111(a) and (b) as follows:

On or about the 11th day of January, 2007, in Niagara Falls, New York, in the Western District of New York, the defendant, GARY N. JAMES, Jr., did knowingly and unlawfully forcibly assault, resist, oppose, impede, intimidate and interfere with Special Agent Jeffrey Brannigan of United States Immigration and Customs Enforcement and Special Agent Huy Khuu of the Bureau of Alcohol, Tobacco, Firearms and Explosives, while they were engaged in and on account of the performance of their official duties, and in the commission of these acts did use a deadly and dangerous weapon, that is, an Iver Johnson Arms, Inc., Model TP22, .22 caliber, semiautomatic pistol, bearing serial number AE73105.

Indictment at 9-10 (ECF #18).

Finally, Count 7 charged a violation of 18 U.S.C. § 1114 as follows:

On or about the 11th day of January, 2007, in Niagara Falls, New York, in the Western District of New York, the defendant, GARY N. JAMES, Jr., did willfully and unlawfully attempt to kill, with malice aforethought, Special Agent Jeffrey Brannigan of United States Immigration and Customs Enforcement, while he was engaged in and on account of the performance of his official duties, by discharging a firearm, to wit, an Iver Johnson Arms, Inc., Model TP22, .22 caliber, semiautomatic pistol, bearing serial number AE73105, at Special Agent Jeffrey Brannigan, which acts had the tendency to produce death.

Indictment at 9 (ECF #18).

James entered into a Plea Agreement (ECF #59) dated August 6, 2008, which recited that he was agreeing to plead guilty to Counts 1, 4, 7, and 9 of the Indictment. Count 1 charged a violation of 18 U.S.C. § 2114 (a) and 2, (Assault with Intent to Rob), whichcarries a maximum possible sentence of a term of imprisonment of 25 years and a term of supervised release of 5 years; Count 4, which charges a violation of 18 U.S.C. § 111(a)(1) and (b)(2) (Assault of a Person Assisting an Officer of the United States) and carries a maximum possible sentence of 20 years' imprisonment and a term of supervised release ("SR") of 3 years; Count 7, which charges a violation of 18 U.S.C. § 1114 (Attempted Murder of an Officer of the United States) and carries a maximum possible sentence of 20 years' imprisonment and a 3-year term of SR; and Count 9, which charges a violation of 18 U.S.C. § 924 (c)(1)(A)(iii) (Use and Carrying of a Firearm during or in relation to a Crime of Violence and the unlawful Possession of a Firearm in furtherance of a Crime of Violence) and carries a consecutive, mandatory term of at least 10 years to life in prison plus a 5-year term of SR.

James and the Government "agree[d] to [certain] facts, which form[ed] the basis for the entry of the plea of guilty including relevant conduct," and which included the following:

d) At approximately 8:00 p.m. [on January 11, 2007,] [James], Moody and Ellison arrived at the Wal-Mart Parking lot, in the vehicle being driven by Ellison. Upon arrival at the Wal-Mart parking lot, [James], Moody and Ellison went to the front of the Wal-Mart. [James] went to the [confidential informant] CI's car and returned with the CI. Ellison had left and entered the Wal-Mart, while Moody had remained and met [James] and the CI. [James] retrieved the above described Tec-9 9 from Ellison's car, and he, Moody and the CI went to and entered the CI's vehicle. While in the vehicle, [James] displayed the Tec-9 to the CI and when the CI produced the money to purchase the firearm, [James] grabbed the CI from behind, pointed the above-described Iver Johnsonpistol at the CI's head and demanded the money. At this time Moody forcibly took the money and a cell phone from the CI. After Moody took the money [James] shot the CI in the left leg.

e) After shooting the CI, [James] and Moody exited the vehicle, as ICE agents, ATF agents and Niagara Falls Police officers converged upon the scene. As [James] was running from the vehicle, attempting to escape, ICE and ATF agents, who were wearing clothing emblazoned with the word "Police" in large letters, exited their vehicles, yelled words to the effect of "Police" and "Stop, Police" and began to pursue [James]. [James] at this time turned and, with a depraved indifference to human life, fired one shot from the Iver Johnson pistol at the law enforcement officers who were pursuing him. The bullet struck the vehicle that the ICE and ATF agents were exiting, on the front drivers side panel about 3 inches from Special Agent Jeff Brannigan, who was exiting the vehicle at the time. The bullet then traveled up and off the driver's side mirror, again inches from Agent Brannigan. Agent Huy Khuu, ATF, who was already out of the vehicle and who had begun to pursue [James], was also in the line of fire and saw the muzzle flash from [James]'s pistol and heard the projectile go by him.

f) After his arrest, [James] stated that he[,] Moody and Ellison intended to rob the CI, that [he] had shot the CI and that he had shot at the law enforcement officers, although he claimed not to realize that they were law enforcement officers at that time. . . .

Plea Agreement at 5-7 (ECF #59).

James pleaded guilty on September 10, 2008, to Counts 1, 4, 7 and 9. See ECF Minute Entry dated 9/10/2008 (unnumbered entry); Transcript of 9/10/2008 Proceedings (ECF #130). On January 19, 2009, James filed a pro se motion to withdraw his plea based on ineffective assistance of trial counsel but subsequently withdrew it.

James was sentenced on June 2, 2009, to 210 months'imprisonment on the convictions for Counts 1, 4 and 7, to be served concurrently with each other; 120 months' imprisonment on the convictions for Count 9, to be served consecutively to all sentences, for a total of 330 months' imprisonment. In addition, James was sentenced to 5 years' SR on the convictions for Counts 1 and 9, and 3 years' SR on the convictions for Counts 4 and 7, with all terms to be served concurrently with standard and special conditions. Counts 2, 3, 5, 6 and 8 were dismissed on the Government's motion. See ECF Minute Entry dated 6/02/2009 (unnumbered entry); Judgment (ECF #100).

James filed a pro se § 2255 motion (ECF #104) in April 2011. This was terminated on December 6, 2011, due to James's failure to comply with a scheduling order (ECF #5). See ECF Minute Entry dated 12/06/2011 (unnumbered entry).

Following the Supreme Court's issuance of the Johnson decision, James, through counsel, filed his original § 2255 motion (ECF #120) on June 8, 2016. On November 7, 2019, James filed his supplemental § 2255 motion (ECF #142) based on the Supreme Court's decision in Davis. James contends that his conviction on Count 9 for violating § 924(c)(1)(A)(iii) must be vacated in light of Davis because Count 7 is no longer a crime of violence within the residual clause, § 924(c)(3)(B), and the validity of Count 9 depends solely on the validity of County 7. The Government has filed responses to the motions (ECF ##148, 149) arguing that Count9 is based on two predicate crimes, Counts 7 and 8, even though James only pleaded guilty to Count 7. Since James makes no argument that Count 8 is not a crime of violence under the elements clause, § 924(...