Leone v. United States

• Decision Date: 24 August 2016
• Docket Number: Criminal Case No. 95-00960-Cr-Lenard,CASE NO. 16-22200-CIV-LENARD/WHITE
• Citation: 203 F.Supp.3d 1167
• Parties: Salvatore LEONE, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Florida

203 F.Supp.3d 1167

Salvatore LEONE, Movant,

v.UNITED STATES of America, Respondent.

CASE NO. 16-22200-CIV-LENARD/WHITE

Criminal Case No. 95-00960-Cr-Lenard

United States District Court, S.D. Florida.

Signed August 24, 2016

Michael Caruso, Federal Public Defender's Office, Miami, FL, for Movant.

Brian Jay Shack, United States Attorney's Office, Miami, FL, for Respondent.

SUA SPONTE NON-FINAL ORDER DISMISSING WITHOUT PREJUDICE MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (D.E. 5)

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Movant Salvatore Leone's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Motion," D.E. 5), filed June 24, 2016. This is Leone's second Motion under Section 2255. See Leone v. United States , Case No. 00-03831-Civ-Lenard (S.D. Fla. filed Oct. 11, 2000). Magistrate Judge Patrick A. White issued a Report and Recommendation, ("Report," D.E. 11), on June 30, 2016, recommending that the Court grant Movant's Motion. For the reasons stated herein, the Court dismisses Movant's Motion to Vacate and rejects the Report as moot.

I. Introduction

In November of 1996, Movant was adjudicated guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Leone , 95-00960-Cr-Lenard (S.D. Fla. Nov. 6, 1996). The Court sentenced Movant under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), to 327 months' imprisonment, to be followed by five years of supervised release. See id.

An individual adjudicated guilty of being a felon in possession of a firearm under 18 U.S.C. § 922(g) is subject to a maximum sentence of ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, if the defendant has three prior convictions for a "violent felony or a serious drug offense," the ACCA enhances the sentence to a mandatory minimum fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). The ACCA defines the term "violent felony" as any crime punishable by a term of imprisonment exceeding one year that:

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

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B). Subsection (i) is referred to as the "elements clause"; subsection (ii)'s first nine words are referred to as the "enumerated clause"; and subsection (ii)'s final thirteen words are referred to as the "residual clause." See In re Rogers , 825 F.3d 1335, 1338 (11th Cir.2016).

In Johnson v. United States , the United States Supreme Court held that the ACCA's residual clause is unconstitutionally vague. ––– U.S. ––––, ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). In Welch v. United States , the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. ––– U.S. ––––, ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

Movant argues that after the Supreme Court's decision in Johnson , he no longer qualifies for an ACCA enhancement. (Mot. at 2.) Accordingly, he seeks an Amended Judgment imposing a sentence of 120 months' imprisonment, which would entitle him to immediate release. (Joint Stipulation, D.E. 8 at 2.)

II. Background

On June 10, 1996, a jury found Movant guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Leone , 95-00960-Cr-Lenard, D.E. 87 (S.D. Fla. June 10, 1996) (hereafter "95-00960-Cr-Lenard, [Docket Entry] (Date)"). The United States Probation Office issued a Presentence Investigation Report ("PSI") listing twenty-one prior convictions¹ and recommending that Movant receive a sentence enhancement pursuant to the ACCA, 18 U.S.C. § 924(e).² Movant filed objections to the PSI in which he conceded that his prior burglary convictions "are considered ‘violent felonies' under the [ACCA]," but argued that a sentence at the low end of the guidelines range was appropriate. 95-00960-Cr-Lenard, D.E. 96 (Sept. 20, 1996). Leone objected solely to any upward departure of the guidelines range.³ See Tr. of Nov. 1, 1996 Sentencing Hr'g at 3:16-20, 95-00960-Cr-Lenard, D.E. 111 (Mar. 7, 1997). At the November 1, 1996 sentencing hearing, the Court adopted the factual findings and guideline applications contained in the PSI and sentenced Movant as an armed career criminal pursuant to the ACCA, the PSI, and the governing law to 327 months' imprisonment, to be followed by five years of supervised release. See id. at 26:4-13, 29:7-9; see also 95-00960-Cr-Lenard, D.E. 106 (Nov. 15, 1996).

On October 11, 2000, Movant filed his first Motion under 28 U.S.C. § 2255. See Leone v. United States , 00-03831-Civ-Lenard (Oct. 11, 2000) (hereafter "00-03831-Civ-Lenard, [Docket Entry] (Date)"). On December 18, 2000, Movant filed an Amended 2255 Motion challenging the Court's subject matter jurisdiction over his criminal case and alleging ineffective assistance of counsel. 00-03831-Civ-Lenard, D.E. 9 (Dec. 18, 2000). On August 1, 2002, the Court adopted the Report of Magistrate Judge Charlene Sorrentino and denied Movant's first 2255 Motion. 00-03831-Civ-Lenard, D.E. 16 (Aug. 1, 2002).

After the Supreme Court issued its decision in Welch , 136 S.Ct. at 1257, Movant filed an application under Section 2255(h) seeking permission from the Court of Appeals to file a second or successive 2255 motion. On June 15, 2016, the Eleventh Circuit Court of Appeals granted Movant's application to file a second or successive 2255 motion, finding that because the district court made no explicit findings at the time of sentencing, Leone had "made a prima facie showing that he has raised a claim that meets the statutory criteria set forth in 28 U.S.C. § 2255 [.]" (D.E. 1 at 9.)

On June 24, 2016, Movant, who is now represented by counsel, filed the instant 2255 Motion. (D.E. 5.) In his Motion, Movant argues that the Court enhanced his sentence under the ACCA's residual clause, the Supreme Court in Johnson declared the residual clause to be unconstitutionally vague, and his prior burglary convictions do not qualify as "violent felonies" under the ACCA's "enumerated" or "elements" clauses. (D.E. 5.) Movant bases his argument on the legal assumption that Descamps v. United States , ––– U.S. ––––, 133 S. Ct. 2276, 186 L.Ed.2d 438 (2013) and Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2257, 195 L.Ed.2d 604 (2016), apply retroactively when determining whether his prior convictions qualify as predicate offenses under the ACCA's elements and enumerated clauses. (See id. at 5–17.)

On June 29, 2016, the United States filed a response agreeing that Movant's sentence should be vacated. (D.E. 7.) Therein, the Government stated that, after Johnson , Movant has at most two qualifying predicate offenses under the ACCA: (1) a Florida conviction for the sale, purchase, or delivery of cocaine that qualifies as a "serious drug offense," and (2) a Florida obstruction of justice conviction that could possibly constitute a "violent felony," although the "sentencing record lacks sufficient Shepard Documents to support Leone's obstruction as a violent felony." (Id. ¶ 5.) However, the Government agreed that none of the remaining convictions qualify as either a "serious drug offense" or a "violent felony." (Id. )

Also on June 29, 2016, the Parties filed a Joint Stipulation requesting that the Court grant the Motion and enter an Amended Judgment reflecting a statutory maximum sentence of 120 months' imprisonment, which would entitle Movant to immediate release. (D.E. 8.) On June 30, 2016, Judge White issued a Report recommending that the Court grant Movant's 2255 Motion, based entirely upon the Government's concession. (D.E. 11.)

Because the Report and the Parties failed to address the discrete issues raised herein, and given the Court's duty to determine whether it has jurisdiction over this matter, see In re Morgan , 717 F.3d 1186, 1193 (11th Cir.2013) ("The bar on second or successive motions is jurisdictional, so [courts] must determine whether an application to file a second or successive motion is based on a claim involving ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable...’ "), on July 15, 2016, the Court ordered the Parties to file supplemental briefing. (D.E. 13.) The Court specifically ordered the Parties to brief "whether the Court should retroactively apply Descamps ... and Mathis ... when determining whether the Movant has satisfied the requirements of § 2255(h), and alternatively when considering the merits of his [2255 Motion]." (Id. at 2.)

On July 20, 2016, Movant filed a supplemental brief in which he continues to argue that the Court must apply Descamps to determine whether the predicate offenses would still qualify for an ACCA enhancement under the elements or enumerated clause. (D.E. 16 at 3-4.) Movant's supplemental brief did not address whether his convictions would have qualified under the elements or enumerated clause at the time of sentencing if the Court were to find that Descamps and Mathis are inapplicable to the 2255(a) and (h) analyses.

On July 27, 2016, the Government filed a supplemental brief withdrawing its prior concession and opposing Movant's 2255 Motion. (D.E. 17.) It now argues that "Descamps and its progeny[ ] play no role in the District Court's determination as to whether the requirements of Section 2255(h) have been met." (Id. at 5.)

On August 3, 2016, Movant filed a Reply to the Government's supplemental brief. (D.E. 19.) He essentially repeats the same argument contained in his own supplemental brief—specifically, that his claims satisfy the requirements of Section 2255(h) because under the Eleventh Circuit's clear/unclear test, see In re Rogers , 825 F.3d 1335 (11th Cir.2016), it is unclear whether he was sentenced using the...