United States v. Dantzler
| Decision Date | 22 July 2015 |
| Docket Number | No. 12–CR–568 (NGG)(VVP).,12–CR–568 (NGG)(VVP). |
| Citation | 117 F.Supp.3d 198 |
| Parties | UNITED STATES of America, v. Zephaniah DANTZLER, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Kevin M. Trowel, United States Attorney's Office, Brooklyn, NY, for United States of America.
Mildred M. Whalen, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.
In response to the Second Circuit's November 14, 2014, decision remanding this case for resentencing, Defendant Zephaniah Dantzler argues that he is not subject to the enhanced penalty provision of the Armed Career Criminal Act ("ACCA") because the Government cannot sustain its burden of proving that he committed three prior violent felony offenses "on occasions different from one another," as required by the statute, 18 U.S.C. § 924(e). The Government vigorously contests this assessment. This Memorandum evaluates the parties' arguments in light of the Second Circuit's decision, United States v. Dantzler, 771 F.3d 137 (2d Cir.2014), and explains the court's conclusion that Defendant is not subject to the sentence enhancement under the ACCA.
On March 27, 2013, Defendant pleaded guilty to one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Under the ACCA, a defendant who violates § 922(g) and who has three previous convictions for violent felonies "committed on occasions different from one another" is subject to a minimum sentence of imprisonment of fifteen years, or 180 months. Id. § 924(e)(1). At Defendant's original sentencing hearing on July 25, 2013, the court determined that Defendant had previously committed three violent felonies on "occasions different from one another," and that as a result, the enhanced sentence under the ACCA applied. Accordingly, after weighing the § 3553(a) factors, the court sentenced Defendant to 180 months' imprisonment. (Statement of Reasons (Dkt. 52) at 3.)
In concluding that the ACCA's fifteen-year mandatory minimum sentence applied, the court relied upon the Probation Department's presentence report ("PSR"), as well as New York City Police Department ("NYPD") complaint reports related to Defendant's three prior violent felonies.1 The PSR characterized the following three offenses as violent felonies "committed on occasions different from one another": (1) a conviction in New York State Supreme Court, Kings County, for a robbery committed on February 18, 2006, in Brooklyn, at 11:00 a.m., in which Dantzler and a co-defendant stole a debit card from the victim using a box cutter; (2) a conviction in New York State Supreme Court, New York County, for a robbery committed on February 19, 2006, on the subway in Manhattan, together with two co-defendants, using a box cutter and a bladed knife; and (3) a conviction in New York State Supreme Court, Queens County, for a robbery also committed on February 19, 2006, on the subway in Queens, with two other individuals, using a box cutter and a bladed knife. Dantzler, 771 F.3d at 139–40.
In a sentencing memorandum, Defendant disputed the characterization of these crimes in the PSR, arguing that the two February 19, 2006, robberies represented "the same criminal episode." (Def.'s July 16, 2013, Ltr. (Dkt. 48) at 1.) In support of this argument, Defendant provided the court with the NYPD complaint reports, which had not been included in the PSR, and which provided the following additional details regarding those two robberies. Defendant had been arrested at 3:30 a.m. on February 19, 2006, in the Manhattan City Hall subway station for a robbery that had taken place on a number 6 subway train 10 minutes earlier. On March 2, 2006, while he was in pretrial detention at Rikers Island in connection with that offense, Defendant was arrested for another robbery that took place at 1:45 a.m. on February 19, 2006, on an eastbound number 7 train in Queens. Dantzler, 771 F.3d at 140.
In determining that the two February 19, 2006, robberies were "committed on occasions different from one another" for the purpose of the ACCA, this court relied on the Second Circuit's decision in United States v. Rideout, 3 F.3d 32 (2d Cir.1993), which held that "offenses committed against different victims separated by at least twenty to thirty minutes and twelve to thirteen miles qualify as offenses ‘committed on occasions different from one another.’ " Id. at 35 (quoting 18 U.S.C. § 924(e) ). Because the NYPD complaint reports demonstrated that Defendant "decided to travel on different subway lines at different times the same night," the court found Rideout compelled the conclusion that the two robberies were "committed on occasions different from one another." Dantzler, 771 F.3d at 148.
On appeal, however, the Second Circuit held that in determining whether predicate violent felonies were "committed on occasions different from one another" within the meaning of the ACCA, district courts are limited to considering only those sources approved by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) : (1) the fact of conviction; (2) the statutory definition of the prior offense; (3) the charging document; (4) a written plea agreement; (5) a transcript of the plea colloquy; and (6) any explicit factual finding by the trial judge to which the defendant assented. Dantzler, 771 F.3d at 142–43 (). Accordingly, in finding that Defendant's two February 19, 2006, robbery convictions were "committed on occasions different from one another," this court committed plain error by relying on source materials not approved by Taylor and Shepard .2 Id. at 146.
In so holding, the court acknowledged:
[F]or what is likely a relatively small number of cases, such as the one before us, in which the dates of the predicate offenses are not dispositive in determining whether they were committed "on occasions different from one another," the sentencing court's ability to impose the ACCA mandatory minimum will depend upon whether the Taylor - and Shepard -approved materials also contain other facts necessary for such a determination. Here, where two of the predicate offenses occurred on the same date, the District Judge was compelled to look to facts such as the identities of the victims and the times and locations of the offenses—which under our clear precedent in Rideout are precisely the factors rightly considered—in determining whether the crimes occurred on "occasions different from one another."
Id. at 145. On the record before it, however, the Second Circuit was not in a position to evaluate (a) which particular documents this court was entitled to consider in making its determination, and (b) whether the Government ultimately could meet its burden of proof in establishing that the February 19, 2006, robberies were "committed on occasions different from one another" using only materials approved by Taylor and Shepard. Id. at 147. Consequently, the court remanded the case for resentencing. Id. at 149–50 ().
On remand, the Government has provided the court with certain documents that—as Defendant concedes—constitute Taylor - and Shepard -approved source materials regarding the two February 19, 2006, robberies. .) However, in light of the Second Circuit's decision, and for the reasons set forth below, the court finds these materials fail to establish, by a preponderance of the evidence, that these two robberies were "committed on occasions different from one another" under § 924(e).
With respect to Defendant's conviction in New York County, the Government has produced: (i) a certificate of disposition certifying that on July 24, 2006, Defendant pleaded guilty to robbery in the second degree, in violation of New York Penal Law § 160.10(1) () in a case filed on February 24, 2006 (Certificate of Disposition Indictment, People v. Dantzler, No. 927–2006 (N.Y.Crim.Ct. Aug. 22, 2012) Ltr. ( ) (Dkt. 57) at 22));3 and (ii) an indictment charging that, among other crimes, on or about February 19, 2006, in New York County, defendants Sean Boddie, Zephania[h] Dantzler, and Michael Oliver a/k/a Shawn Watson, each "aided by another person actually present," forcibly stole property from a person "known to the Grand Jury," thereby committing robbery in the second degree (Indictment (Sixth Count), People v. Boddie et al., Nos.2006NY012221, 2006NY012222, 2006NY012223, 2006NY012274 (N.Y. Crim. Ct.) (Gov't's Sent. Mem. at 26)).
Regarding Defendant's conviction in Queens County, the Government has produced: (i) a certificate of disposition certifying that on December 7, 2006, Defendant pleaded guilty to robbery in the first degree, in violation of New York Penal Law § 160.15(3), in a case filed on June 22, 2006 (Certificate of Disposition Indictment, People v. Dantzler, No. 1510–2006 (N.Y.Crim.Ct. Aug. 16, 2012) (Gov't's Sent. Mem. at 15)); (ii) an indictment charging that, among other crimes, on or about February 19, 2006, defendants Shawn Watson a/k/a Michael Oliver, Sean Boddie, and Zephaniah Dantzler, "each aiding the others and acting in concert with other persons," forcibly stole a sum of United States currency and personal property from Wen Chung Lee,...
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