Speed v. United States

• Decision Date: 27 October 2020
• Docket Number: 04 cr 336 (PKC),10 cv 3333 (PKC)
• Parties: ROBERT SPEED, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of New York

ROBERT SPEED, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

10 cv 3333 (PKC)

04 cr 336 (PKC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 27, 2020

OPINION AND ORDER

CASTEL, U.S.D.J.:

Petitioner Robert Speed moves to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. (Doc 114.) Speed argues, inter alia, that in light of the rules announced by the Supreme Court in Johnson v. United States, 576 U.S. 591 (2015) and United States v. Davis, 139 S. Ct. 2319 (2019), his conviction for possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three) cannot stand because the Court must assume that the predicate "crime of violence" was RICO conspiracy (Count Two), which no longer qualifies as a "crime of violence" under the statute. Speed alternatively argues that even if the Court were to consider the substantive RICO count (Count One) as the predicate offense, it also does not qualify as a "crime of violence" and thus warrants vacatur of the Count Three conviction, and re-sentencing. For the reasons set forth below, Speed's motion will be denied.

BACKGROUND

On November 9, 2005, a jury convicted Speed of seven counts of an eight-count indictment. (Superseding Indictment (Doc 55); Trial Tr. (Doc 114, Ex. 4) at 1811-16.) Speed was convicted on Count One, a substantive racketeering charge, in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1962(c); Count Two, racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); Count Three, possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A)(ii) and 2; Count Four, unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); Count Five, conspiracy to transport stolen goods in interstate commerce and to sell stolen goods, in violation of 18 U.S.C. § 371; Count Six, interstate transportation of stolen property, in violation of 18 U.S.C. § 2314 and 2; and Count Seven, possession and sale of stolen property, in violation of 18 U.S.C. § 2315 and 2. (Presentence Investigation Report ("PSR") (Doc 114, Ex. 1).) The jury acquitted Speed on Count Eight, which charged a Hobbs Act conspiracy in violation of 18 U.S.C. § 1951(a). (Doc 55; Amended Judgment (Doc 75).)

At trial, the Court instructed the jury on Count Three, in relevant part:

To find the defendant Robert Speed guilty of the crime in the indictment, the government must prove each of the following elements beyond a reasonable doubt.

First, that the defendant committed a crime of violence for which he might be prosecuted in a court of the United States.

Second, that between in or about 1995 and in or about January 2002, Robert Speed used, carried or possessed a firearm or aided and abetted others to do so.

Third, that the defendant did so unlawfully, willfully and knowingly.

Fourth, that the defendant used and carried the firearm during and in relation to a crime of violence, namely, the offenses charged in Counts 1 and 2, or that the defendant possessed the firearm in furtherance of any such crime of violence.

Although not a required element of the charge, you will also be asked whether the defendant brandished a firearm during and in relation to a crime of violence.

The first element that the government must prove beyond a reasonable doubt is that the defendant committed a crime of violence for which he might be prosecuted in a court of the United States.

As I have already instructed you, the defendant is charged in Count 1 with, among other things, participating in a racketeering enterprise that committed robberiesand conspired to commit robberies, and in Count 2 the defendant is charged with conspiring to participate in the RICO enterprise.

I instruct you the crimes of Count 1 and Count 2 are crimes of violence. It is for you to determine whether the government has proven beyond a reasonable doubt that the defendant committed the crimes of violence charged in Count 1 and Count 2.

Further, Count 1 of the indictment charges that the defendant committed several different conspiracies to commit robbery and robberies. You may find the defendant is guilty of more than one of the conspiracies to commit robbery, robberies and/or robberies. However, you need not find that the defendant is guilty in one of the conspiracies to commit robberies or one of the robberies to find that the defendant committed a crime of violence, but you must be unanimous with respect to the crime of violence that you find the defendant committed.

Finally, in order for you to find the defendant guilty of Count 3 in connection with the crime of violence in Count 1, you must further find that the defendant used or carried a firearm during and in relation to or possessed a firearm in furtherance of one or more of the conspiracies to commit robberies or one or more of the robberies in Count 1.

(Doc 114, Ex. 4 at 1736-37.)

The Court adopted a Sentencing Guidelines range of 408 to 489 months' imprisonment. (PSR at 48; Doc 114, Ex. 2 at 62.) On May 19, 2006, the Court sentenced Speed to a total of 420 months' imprisonment. (Doc 114, Ex. 2 at 63-65.) Specifically, and as is relevant here, Speed received a sentence of 84 months' imprisonment on Count Three, to run consecutively to the other counts. (Id. at 65.)

Speed moved for a judgment of acquittal on Count Three pursuant to Rule 29, Fed. R. Crim. P., asserting that the government failed to prove venue in this District. The Court denied Speed's motion. (Doc 64.) Speed also moved for relief pursuant to section 2255, and the Court denied his motions. (Docs 88, 90, 94.)

On June 14, 2016, Speed filed a "placeholder" petition to vacate his sentence again pursuant to 18 U.S.C. § 2255, and simultaneously filed a motion in the United States Court of Appeals for the Second Circuit for permission to proceed with a successive section 2255motion based on the Supreme Court's decision in United States v. Johnson, 576 U.S. 591 (2015). (Docs 98, 99, 100, 102.) The Second Circuit granted his motion. (Speed v. United States, 16-1863, Doc 26.) After stays of the motion pending the outcome of various cases before the Supreme Court and the Second Circuit, a briefing schedule was set on July 19, 2019. (Doc 113.)

DISCUSSION

A. Legal Framework

Section 924(c)(1)(A)(ii) provides, in relevant part:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . .

if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years . . . .

Section 924(c)(3) defines a "crime of violence" as "an offense that is a felony and"

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

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Subsection (A) is referred to as "the elements clause" and subsection (B) is referred to as "the residual clause." United States v. Davis, 139 S. Ct. 2319, 2324 (2019). In Davis, the Supreme Court held that the residual clause of section 924(c) is unconstitutionally vague. Id. at 2336. The Court had previously held that a similar residual clause of the Armed Career Criminal Act ("ACCA"), at issue in Johnson v. United States, 576 U.S. 591, 597 (2015) was unconstitutionally vague, finding that the clause "[left] great uncertainty about how to estimate the risk posed by a crime," as it "tie[d] the judicial assessment of risk to a judicially imagined 'ordinary case' of acrime, not to real-world facts or statutory elements." The Supreme Court further noted that "the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony." Id. at 598; see Davis, 139 S. Ct. at 2325-26 (discussing Johnson). In order for a conviction under 18 U.S.C. § 924(c) to stand, therefore, the predicate offense must be a "crime of violence" as defined by the elements clause, 18 U.S.C. § 924(c)(3)(A).

Determining whether an offense is a "crime of violence" requires a "categorical approach," as opposed to a case-specific approach. Davis, 139 S. Ct. at 2328; United States v. Barrett, 937 F.3d 126, 128 (2d Cir. 2019) (describing the Supreme Court's holding in Davis). Under the categorical approach, "courts may look only to the statutory definitions—i.e., the elements—of a defendant's prior offenses, and not to the particular facts underlying those convictions." Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks and citation omitted) (emphasis in original); United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006) ("Under this categorical approach, we focus on the intrinsic nature of the offense rather than on the circumstances of the particular crime."). "Consequently, only the minimum criminal conduct necessary for conviction under a particular statute is relevant." Acosta, 470 F.3d at 135.

Where a statute has "a more complicated (sometimes called 'divisible') structure," and lists alternative elements, "thereby defin[ing] multiple crimes," courts may employ a "modified categorical approach" whereby they "look[] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).

B. Speed Did Not Procedurally Default

The government argues that Speed cannot raise a...