United States v. Baylor

• Decision Date: 16 February 2016
• Docket Number: Criminal No. 3:11CR64
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES OF AMERICA v. TROY DOUGLAS BAYLOR, Petitioner.

UNITED STATES OF AMERICA v. TROY DOUGLAS BAYLOR, Petitioner.

Criminal No. 3:11CR64

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

February 16, 2016

MEMORANDUM OPINION

Troy Douglas Baylor, a federal inmate proceeding pro se, brings this motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion," ECF No. 130).¹ Baylor contends that, in conjunction with his conviction and sentencing, his trial and appellate counsel were ineffective,² the Court committed several errors, and the Government engaged in misconduct. Specifically, Baylor demands relief because:

Claim One: "Violation of 6th Amendment right under Alleyne [v. United States, 133 S. Ct. 2151 (2013)] when Court at sentencing determined which conviction was second or subsequent." (§ 2255 Mot. 4.)

Claim Two: "Court lacked jurisdiction over robbery, where . . . effect on interstate commerce was not properly established." (Id. at 5.)

Claim Three: "Outrageous government conduct/manufacturing evidence." (Id. at 7.)

Claim Four: "Cumulative error doctrine." (Id. at 8.)

Claim Five: "Violation of constitutional right of equal protection under law as prosecutor was aware of the disproportion of stacking § 924(c) on African Americans." (Mem. Supp. § 2255 Mot. 11, ECF No. 131.)

Claim Six: "Ineffective assistance of counsel." (Id. at 13.)

Claim Seven: "Petitioner asserts he is actually innocent of all his counts of conviction." (Id. at 14.)

The Government has responded, asserting that Baylor's claims lack merit. (ECF No. 145-1.) Baylor has filed a Reply. (ECF No. 150.) For the following reasons, Baylor's § 2255 Motion (ECF No. 130) will be DENIED.

I. PROCEDURAL HISTORY

On March 1, 2011, a grand jury charged Baylor with: conspiracy to interfere with commerce by threats and violence (Count One); interference with commerce by threats and violence (Counts Two, Five, Eight, and Eleven); use and carry of a firearm in furtherance of a crime of violence (Counts Three, Six, Nine, and Twelve); and possession of a firearm by a felon (Counts Four, Seven, Ten, and Thirteen). (Indictment 1-8, ECF No. 1.) On January 30, 2012, the Government filed a motion to dismiss Counts Five through Ten. (ECF No. 79.) The Court granted the Government's motion by Order entered on February 1, 2012. (ECF No. 81.) Following a jury trial, Baylor was convicted of all remaining counts. (ECF No. 88, at 1-3.) On April 24, 2012, the Court entered judgment against Baylor and sentenced him to a total of 624 months of imprisonment. (Am. J. 3, ECF No. 125.)

Baylor, through counsel, filed a Notice of Appeal to the United States Court of Appeals for the Fourth Circuit. (ECF No. 108.) On appeal, Baylor argued that "the district court abused its discretion by rejecting [his] proposed voir dire questions regarding eyewitness identification; excluding the testimony of [his] eyewitness identification expert; refusing [his] proposed jury instructions regarding eyewitness identification; and admitting certain testimony offered by the Government's DNA expert." United States v. Baylor, 537 F. App'x 149, 151 (4th Cir. 2013). Baylor also argued that "the Government presented insufficient evidence to support a findingthat the object used or carried during one of the robberies met the statutory definition of a 'firearm.'" Id. Alternatively, Baylor contended that the seven-year sentence imposed for one violation of 18 U.S.C. § 924(c) was "constitutionally infirm." Id. The Fourth Circuit affirmed this Court's judgment. Id. at 165. On December 2, 2013, the United States Supreme Court denied Baylor's petition for a writ of certiorari. Baylor v. United States, 134 S. Ct. 717 (2013).

II. ALLEYNE CLAIM

In Claim One, Baylor alleges that "[t]he Court violated [his] Sixth Amendment right under Alleyne [v. United States, 133 S. Ct. 2151 (2013)] when the Court, at sentencing, determined which of [his] convictions [under 18 U.S.C. § 924(c)] was second or subsequent." (Mem. Supp. § 2255 Mot. 2.) According to Baylor, "this Court improperly determined that the offense where the brandishing occurred was the 'first conviction' returned by the jury, leaving the offense where there was no sighting of a firearm as the second and subsequent conviction." (Id. at 4.) Baylor argues that "Alleyne makes clear that taking such findings away from the jury is a violation of [his] Sixth Amendment right of the jury determining all elements of [his] offense of conviction." (Id.)

Baylor was charged with and convicted of two separate violations of 18 U.S.C. § 924(c)(1)(A)(ii), for brandishing a firearm in relation to a crime of violence. (Am. J. 1.) Under 18 U.S.C. § 924(c), a defendant who brandishes a firearm during a crime of violence is subject to a consecutive mandatory minimum sentence of not less than seven years. 18 U.S.C. § 924(c)(1)(A)(ii).³ However, because Baylor was convicted of a second or subsequent § 924(c)charge, he was subject to a consecutive mandatory minimum penalty of twenty-five years for the second conviction. Id. § 924(c)(1)(C). A defendant who is convicted of more than one § 924(c) violation in a single judgment is properly sentenced to the enhanced mandatory consecutive twenty-five year term for his second § 924(c) conviction. See United States v. Robles, 709 F.3d 98, 101 (2d Cir. 2013) (citing cases for this proposition).

In Alleyne, the Supreme Court held "that any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." 133 S. Ct. at 2155. As explained below, Baylor is entitled to no relief under Alleyne. The Supreme Court has held that the Government need not allege prior convictions in an indictment and need not prove them beyond a reasonable doubt for a court to use those convictions for purposes of enhancing a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998). "Finding that a defendant's convictions were 'second or subsequent' [under 18 U.S.C. § 924(c)] is the same as finding that a defendant had a prior conviction, and the issue remains governed by Almendarez-Torres." United States v. King, 751 F.3d 1268, 1280 (11th Cir.) (citing United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013)), cert. denied, 135 S. Ct. 389 (2014); see Eberhart v. United States, Nos. 1:13CV851, 1:04CR392-1, 2015 WL 6690967, at *4 n.2 (M.D.N.C. Nov. 2, 2015) (citations omitted) (noting that "Alleyne does not require that a predicate conviction triggering enhanced penalties [such as one under § 924(c)(1)(C)] be alleged in the indictment or proved to the jury"); Winkelman v. Oddo, No. 1:14CV147, 2015 WL 6692253, at *4 (N.D. W. Va. Nov. 3, 2015) (concluding same). Therefore, no Alleyne violation occurred, as the Court properly determined that Baylor hadcommitted a second or subsequent conviction under 18 U.S.C. § 924(c). Claim One will be DISMISSED.

III. JURISDICTION

In Claim Two, Baylor contends that the Court "lacked jurisdiction over Wilson's Auto robbery as effect on interstate commerce was not properly established." (Mem. Supp. § 2255 Mot. 5.) According to Baylor, during the robbery of Wilson's Auto, he only took "personal money" from Tommy Wilson, Sr. and Tommy Wilson, Jr. (Id.) Plaintiff asserts that "this does not constitute interference with interstate commerce," and that "[t]he fact [that] Tommy Wilson, Sr. made the decision to replace Tommy Wilson, Jr.'s losses from the Wilson Auto account, has no direct bearing on the loss caused by the robbery." (Id. at 6.)

The Hobbs Act prohibits robbery or extortion that "in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce . . . ." 18 U.S.C. § 1951(a). "A Hobbs Act violation requires proof of two elements: (1) the underlying robbery or extortion crime, and (2) an effect on interstate commerce." United States v. Williams, 342 F.3d 350, 353 (4th Cir. 2003) (citing Stirone v. United States, 361 U.S. 212, 218 (1960)). The Hobbs Act applies whenever the offense has at least a "minimal" effect on interstate commerce. United States v. Spagnolo, 546 F.2d 1117, 1119 (4th Cir. 1976); see also United States v. Taylor, 754 F.3d 217, 222 (4th Cir. 2014) (citation omitted) (noting that "[t]he effect may be so minor as to be de minimus"), cert. granted, 136 S. Ct. 26 (2015). Moreover, "[i]t is of no moment whether the defendants intended or contemplated an effect on commerce . . . ." Spagnolo, 546 F.2d at 1119. "To determine whether a robbery affects commerce, [the Court] do[es] not simply examine the effect of the individual action in question; it is sufficient that the'relevant class of acts' has a measurable impact on interstate commerce." Taylor, 754 F.3d at 222 (citation omitted).

During the trial, Tommy Wilson, Jr. testified that on December 21, 2010, he had cashed a $500.00 Christmas bonus check given to him by his father, Tommy Wilson, Sr., prior to coming to work at Wilson's Auto. (Feb. 1, 2012 Tr. 280, ECF No. 120.) During the robbery, Wilson, Jr. took that money out of his pocket and placed it on the floor of the garage. (Feb. 1, 2012 Tr. 284.) Furthermore, Tommy Wilson, Sr. testified that one of the robbers took money directly from his pocket. (Feb. 1, 2012 Tr. 326-27.) Wilson, Jr. further testified that his father repaid him the Christmas bonus. (Feb. 2, 2012 Tr. 355, ECF No. 121.) Moreover, during the robbery, a passenger side-view mirror on one of the vehicles in the shop was damaged. (Feb. 2, 2012 Tr. 355.) Wilson, Jr. had to replace the mirror cover for a cost of $10.00 or $12.00 before he could sell the vehicle. (Feb. 2, 2012 Tr. 355-56.)

Baylor argues that the total amount in damage would have constituted "a misdemeanor in most property crimes." (Mem. Supp. § 2255 Mot. 6.) However, whether or not the property damage would be classified as a misdemeanor is irrelevant to the determination of whether the act affected interstate commerce, as the key question is whether the offense had at least a "minimal" effect on...