United States v. Figueroa

• Decision Date: 30 March 2021
• Docket Number: 92-CR-0019 (VEC)
• Parties: UNITED STATES of America, v. Domingo Rosario FIGUEROA, Defendant.
• Court: U.S. District Court — Southern District of New York

530 F.Supp.3d 437

UNITED STATES of America,

v.Domingo Rosario FIGUEROA, Defendant.

92-CR-0019 (VEC)

United States District Court, S.D. New York.

Signed March 30, 2021

Seth C. Farber, Southern District of New York, New York, NY, for United States Of America.

OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

As the result of a successful petition pursuant to 28 U.S.C. § 2255 to vacate one count of conviction for violating 18 U.S.C. § 924(c), Defendant was resentenced on March 30, 2021. Dkt. 110. In advance of the resentencing, the Court directed the parties to detail their positions on: (i) whether the amendments to 18 U.S.C. § 924(c)(1)(C) made as part of the First Step Act apply to Defendant's resentencing; and (ii) whether Defendant's prior convictions for robbery under Puerto Rico law constitute crimes of violence such that Defendant is subject to the Armed Career Criminal Act ("ACCA") mandatory minimum for his conviction for violating 18 U.S.C. § 922(g) and, more broadly, to the career offender guideline.¹ Having provided the parties with a tentative ruling in advance of the resentencing date, Dkt. 111, the Court gave the parties an opportunity to speak on each issue at resentencing; both parties rested on their written submissions. For the following reasons the Court adheres to its tentative ruling and holds that the First Step Act does apply to Defendant's resentencing and that Defendant is not subject to the ACCA mandatory minimum and career offender enhancement.

BACKGROUND

Defendant has an extensive criminal history; he has been convicted of multiple crimes in the Superior Court of San Juan, Puerto Rico, the District Court for the Eastern District of Virginia, and the District Court for the Southern District of New York. The court will briefly summarize the defendant's criminal history.

I. Superior Court of Puerto Rico

Throughout the 1980's, Defendant was convicted of kidnapping and a series of robberies in the Superior Court of San Juan, Puerto Rico. Presentence Report ("PSR"), Dkt. 80 ¶¶ 54-56. On November 22, 1982, Defendant was sentenced to eight years’ imprisonment for robbery under Puerto Rico law to be followed by two years’ imprisonment for a weapons charge. PSR, Dkt. 80 ¶ 54. On December 30, 1985, Defendant was sentenced to twelve years’ imprisonment for robbery under Puerto Rico law to be served consecutive to any sentence he was already serving. Id. ¶ 55. On September 4, 1986, Defendant was sentenced to: (i) sixteen years’ imprisonment for kidnapping under Puerto Rico law; (ii) twelve years’ imprisonment for robbery under Puerto Rico law; (iii) five years’ imprisonment for violation of Puerto Rico's Article 8 Weapons Law; and (iv) five years’ imprisonment for violation of Puerto Rico's Article 6 Weapons law, all of which were ordered to be served concurrently. Id. ¶ 56.

On November 17, 1989, Defendant escaped from the Commonwealth of Puerto Rico's Department of Corrections. Defendant used "an ice-pick like instrument to force [a corrections] officer to turn over his .38 caliber revolver." Id. ¶ 56.

II. Eastern District of Virginia

Not quite two years after he escaped from prison in Puerto Rico, Defendant committed an armed robbery of a post office in Annandale, Virginia. PSR, Dkt. 80 ¶ 57. In connection with that robbery, Defendant was subsequently indicted and convicted of: (i) postal robbery in violation of 18 U.S.C. § 2114 ; (ii) conspiracy to commit postal robbery in violation of 18 U.S.C. § 371 ; and (iii) using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) and 2. Id. On May 11, 1992, Defendant was sentenced to 211 months’ imprisonment. Id. The sentence was ordered to run consecutive to any term of imprisonment being served or previously imposed. Id.

III. Southern District of New York

In December 1991, Defendant was arrested for kidnapping two sex workers and attempting to obtain ransom from one of their pimps. PSR, Dkt. 80, ¶¶ 12-20. After he was convicted in Virginia for the postal robbery, on November 8, 1994, Defendant was indicted and charged in New York with: (i) conspiracy to kidnap, in violation of 18 U.S.C. § 1201(c) ; (ii) kidnapping of LaJoclyn Yvette Walker, in violation of 18 U.S.C. § 1201(a)(1) ; (iii) kidnapping of Lori Cooper, in violation of 18 U.S.C. § 1201(a)(1) ; (iv) conspiracy to make extortionate threats in violation of 18 U.S.C. § 371 ; (v) making extortionate threats, in violation of 18 U.S.C. § 875(b) ; (vi) using and carrying a firearm during and in relation to the kidnapping of LaJocelyn Yvette Walker, as charged in Count Two, in violation of 18 U.S.C. § 924(c) ; (vii) using and carrying a firearm during and in relation to the kidnapping of Lori Cooper, as charged in Count Three, and in relation to the transmission of extortionate threats, as charged in Count Five, in violation of 18 U.S.C. § 924(c) ; and (viii) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Id. ¶¶ 1-10.

Following a trial at which he was convicted on all charges, on June 15, 1995, Defendant was sentenced to an aggregate term of 70 years imprisonment. Id. at 2. The trial judge determined that Defendant was a career offender; the Sentencing Guidelines established a total offense level of 37 and a criminal history category of VI. See 16-CV-4469, Dkt. 29, Ex. D at 13. That Guidelines calculation yielded a then-mandatory guidelines range of 360 months to life imprisonment. Id. As noted supra, Defendant had a prior conviction under § 924(c) from the Eastern District of Virginia, which resulted in mandatory consecutive twenty-year sentences on each of Counts Six and Seven (i.e., 40 years total). PSR, Dkt. 80 at 2. The sentence was ordered to run consecutive to the 271 months’ sentence that had been imposed in the Eastern District of Virginia. Id.

IV. 28 U.S.C. § 2255 Petition

On February 7, 2020, Defendant filed a § 2255 petition to vacate his convictions on Counts Six, Seven, and Eight in light of the Supreme Court's decisions in Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), and Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). See 16-CV-4467, Dkt. 29. On May 6, 2020, this Court vacated Defendant's § 924(c) conviction on Count Six, denied the balance of the petition, and ordered resentencing. 16-CV-4467, Dkt. 37. Resentencing was held on March 30, 2021.² Dkt. 110.

DISCUSSION

I. Application of the First Step Act

Section 924(c)(1)(C) of Title 18, United States Code, provides for enhanced mandatory minimums when a defendant is convicted of a successive § 924(c) charge. When Defendant was sentenced in 1994, § 924(c)(1)(C) read:

In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years.

Accordingly, because Defendant had previously been convicted for violating § 924(c), Defendant was sentenced to mandatory consecutive twenty-year sentences on each of his § 924(c) convictions in this case. PSR, Dkt. 80 at 2; see 16-CV-4469, Dkt. 29, Ex. D.

The First Step Act of 2018 included a "Clarification of Section 924(c)." Pub. L. No. 115-391, 132 Stat. 5194 ("FSA"). Specifically, § 403(a) of the FSA amended § 924(c)(1)(C) to mandate increased punishment only in the case of a "violation of this subsection that occurs after a prior conviction under this subsection has become final." In other words, Congress changed the law so that only a second § 924(c) violation committed after a prior § 924(c) conviction had become final would trigger the consecutive mandatory minimum 25-year sentence required by 924(c)(1)(C)(i).³ FSA § 403(a); United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2324 n.1, 204 L.Ed.2d 757 (2019).

Section 403(b) of the FSA, entitled "Applicability to Pending Cases," states:

This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.

Here, Defendant's initial § 924(c) violation occurred on October 18, 1991, when he used a gun to rob a post office in Virginia. PSR, Dkt. 80 ¶ 57. Importantly, however, Defendant was not sentenced for that violation until May 11, 1992. Id. Defendant committed subsequent violations of § 924(c) from December 10, 1991 to December 13, 1991. Id. ¶¶ 8-9. In other words, Defendant's subsequent § 924(c) violations were committed before his initial § 924(c) conviction became final. Accordingly, as the Government concedes, "under the version of the law in effect today," as amended by the FSA, the successive penalty provision of § 924(c)(1)(C) does not apply. Gov. Br., Dkt. 108 at 2.

The issue before the Court is whether Defendant, whose sentence was vacated after the enactment of the FSA, gets the benefit of the changed law. The Government argues that he does not and urges the Court to "apply the version of the law in effect at the time of the offense." Gov. Br., Dkt. 108 at 2. The Government's position, then, is that the Defendant is subject to a mandatory minimum term of 20 years’ imprisonment on his remaining § 924(c) conviction. Id. at 2-3. Defendant argues that the Court should "apply current law, not a provision discarded in 2018." Def. Br., Dkt. 104 at 3.

The Fourth, Sixth, and Seventh Circuits have held that the FSA applies during resentencing in certain circumstances. See United States v. Bethea , 841 Fed.Appx. 544, 549–50 (4th Cir. 2021) (holding that the FSA applied to defendant whose sentence was vacated pursuant to a § 2255 petition after the FSA was enacted); United States v. Henry , 983 F.3d 214, 217 (6th Cir. 2020) (holding that the FSA applied to defendants whose cases were remanded for resentencing prior to the FSA's enactment but who had not yet been resentenced at the time of enactment); United States v....