United States v. Marmolejos
| Decision Date | 15 January 2021 |
| Docket Number | 99 Cr. 1048 (DC) |
| Parties | UNITED STATES OF AMERICA, v. THOMAS MARMOLEJOS, a/k/a THOMAS MARMOLEJAS, Defendant. |
| Court | U.S. District Court — Southern District of New York |
AUDREY STRAUSS, ESQ.
Acting United States Attorney for the
Southern District of New York
By: Kiersten A. Fletcher, Esq.
Assistant United States Attorney
One Saint Andrew's Plaza
New York, NY 10007
THOMAS MARMOLEJOS
Defendant Pro Se
FCI Otisville, P.O. Box 1000
Otisville, NY 10963
On June 10, 2020, the Second Circuit granted defendant Thomas Marmolejos1 leave to file a second or successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C § 2255. See Dkt. No. 211. Proceeding pro se, Marmolejos moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, arguing that (1) two of his counts of conviction -- Counts Six and Seven -- cannot stand in light of United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Barrett, 937 F.3d 126 (2d Cir. 2019), and (2) the life sentences imposed on two of the other counts of conviction -- Counts Two and Three -- were in excess of the maximum authorized by law. See Dkt. No. 214, at 2, 29; Dkt. No. 221, at 2. For the reasons set forth below, the motion is DENIED.
The facts are set forth in prior decisions of the Court, see Marmolejas v. United States, No. 05 Civ. 10693 (DC), 2010 WL 3452386, at **1-2 (S.D.N.Y. Sept. 2, 2010); United States v. Gomez, 644 F. Supp. 2d 362, 366-67 (S.D.N.Y. 2009), and may be summarized as follows:
The Reyes heroin organization was a large-scale heroin distribution operation run by Juan Matos Reyes out of the Dominican Republic. In May 1998, Marmolejos and two other individuals -- Jaime Gomez and Johnny Martinez -- were hired by Andres Peralta, a member of the Reyes heroin organization, to kill Johan Pena-Perez and Nilton Duran, two men who had allegedly stolen heroin and cash from the organization.
On May 25, 1998, Peralta met with Gomez, Marmolejos, Martinez, and Robinson Reyes, another conspirator, in the Bronx. That same day, Gomez, Marmolejos, Martinez and Reyes made their first attempt to locate Pena-Perez and Duran, as they drove to a location in the Bronx and waited four or five hours for Pena-Perez and Duran, but the two men did not appear.
On May 26, 1998, Marmolejos drove the same group to the same building in the Bronx to wait again for Pena-Perez and Duran. Eventually, Pena-Perez and Duran exited the building and drove away in a Toyota Camry. Marmolejos followed their vehicle, and when the Camry reached a red light, Gomez got out and fired 15 to 20 shots at the Camry with a machine gun. The Camry crashed into another car, and Duran exited the vehicle and fled. Gomez ran after Duran. Several plainclothes New York City Police Department officers, who were patrolling the area when they heard gunshots, saw Gomez run into 1729 Walton Avenue. They entered the building and encountered Gomez, who dropped his weapon and fled up the stairs upon seeing theofficers. The officers found Duran bleeding on the third floor. Duran yelled, "that guy just shot me," pointing up the stairs; the officers later found and arrested Gomez on the roof. Pena-Perez was found dead in the Camry. Meanwhile, Marmolejos had driven away. Later that evening, he was paid $37,000 by the organization.
On June 4, 1998, Marmolejos was arrested in his van. Officers found a secret compartment in the van, which contained a .38 caliber revolver, a 9-millimeter Smith & Wesson semi-automatic pistol, a .22 caliber semi-automatic pistol, a 9-millimeter semiautomatic pistol, numerous rounds of live ammunition, and a silencer.
On November 20, 2001, the government filed a superseding indictment charging eight counts. See Dkt. No. 37. Count One charged the defendants with conspiracy to commit robbery and extortion in violation of 18 U.S.C. § 1951; Count Two charged conspiracy to commit murder-for-hire in violation of 18 U.S.C. § 1958; Count Three charged substantive murder-for-hire in violation of 18 U.S.C. § 1958; Count Four charged conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. § 846; Count Five charged murder while engaged in a major drug conspiracy in violation of 21 U.S.C. §848(e)(1)(A); Count Six charged using and carrying firearms in relation to the narcotics offenses and crimes of violence charged in Counts One through Five in violation of 18 U.S.C. § 924(c); CountSeven charged murder in the course of a § 924(c) violation, in violation to 18 U.S.C. § 924(j); Count Eight charged possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k).
Marmolejos and his co-defendant Gomez pleaded not guilty, and their trial began on January 14, 2002. On February 1, 2002, the jury convicted both defendants on all counts.2 The special jury form did not indicate which underlying offenses predicated the Count Six charge, although it described Count Six as charging using and carrying a firearm during and in relation to a crime or violence "and/or" a narcotics trafficking crime. Dkt. No. 214 at 58. On September 19, 2002, this Court sentenced Marmolejos principally to a term of life imprisonment on the Counts Two, Three, and Seven, a consecutive term of 120 months on Count Six, a concurrent term of 240 months on Counts One and Four, and a concurrent term of 120 months on Count Eight. On October 27, 2004, the Second Circuit affirmed Marmolejos' convictions. United States v. Marmolejas, 112 F. App'x 779, 784 (2d Cir. 2004), cert. denied, Gomez v. United States, 546 U.S. 868 (2005).
On September 15, 2006, I denied Marmolejos's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistanceof counsel. Marmolejas v. United States, No. 05 CIV. 10693 DC, 2006 WL 2642130, at *8 (S.D.N.Y. Sept. 15, 2006). Marmolejos subsequently filed additional challenges to his conviction and sentence, all of which were denied (except with respect to the spelling of his name). See, e.g., United States v. Marmolejos, No. 99 Cr. 1048 (DC), 2013 WL 2003241 ; Marmolejos v. United States, No. 05 Civ. 10693 (DC), 2010 WL 3452386 (S.D.N.Y. Sept. 2, 2010); Marmolejas v. Mukasey, No. 08 Civ. 59 (KKC), 2008 WL 1776593 (E.D. Ky. 2008) (); Marmolejas v. United States, No. 05 Civ. 10693, 2006 WL 2642130 (S.D.N.Y. Sept. 15, 2006).
On June 28, 2016, Marmolejos moved in the Second Circuit to file a successive petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the basis of the Supreme Court's decision in Johnson v. United States, 576 U.S. 591 (2015). See Dkt. No. 185. On December 18, 2018, Marmolejos moved pursuant to Federal Rule of Civil Procedure ("Rule") 60(b)(4) for relief from my denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 200. On August 13, 2019, I denied Marmolejos's Rule 60(b)(4) motion but noted that, in the event the Second Circuit granted Marmolejos's motion to file a second or successive § 2255 motion, the order was without prejudice to any claim Marmolejos may seek to file based on Johnson, Barrett, and United States v. Hill, 832 F.3d 135 (2d Cir. 2016). See Dkt.No. 201. On June 22, 2020, the Second Circuit granted Marmolejos' motion to file a successive petition and remanded to this Court. See Dkt. No. 211.
In his instant § 2255 motion, Marmolejos alleges that (1) his Count Six and Seven convictions are unconstitutional in light of Davis and Barrett, and (2) the life sentences imposed on his Count Two and Three convictions are in excess of the maximum authorized by law. The government filed its opposition to the motion on August 26, 2020. Dkt. No. 219. Marmolejos filed an "amendment" to his motion on October 2, 2020. Dkt. No. 221.
Marmolejos argues that his convictions for Counts Six and Seven cannot stand in light of Davis because (1) Counts One, Two, and Three have been rendered invalid predicates to a § 924(c) conviction, as they could only qualify as predicate offenses under the now unconstitutional "residual" clause of § 924(c)(3)(B), and (2) it is unclear whether the jury based the § 924(c) conviction on Counts One, Two, Three, or Four. I am not persuaded. It is unnecessary to determine which offense served as the predicate for the § 924(c) conviction in the jury verdict, so long as there was in fact a valid predicate. While Marmolejos is correct that Counts One and Two are no longer valid predicates for a § 924(c) violation, the Count Four conviction remains a validpredicate. Accordingly, Marmolejos's argument that his § 924(c) and (j) convictions must be vacated is rejected, and I need not reach the issue of whether Count Three is a valid predicate.
In Davis, the Supreme Court held that § 924(c)(3)(B) (the residual clause) was unconstitutionally vague. 139 S. Ct. at 2336. Following this decision, the Second Circuit ruled that conspiracy to commit Hobbs Act robbery was no longer a valid § 924(c) predicate, because it could not qualify as a crime of violence without the residual clause. Barrett, 937 F.3d at 128. Courts in this district have reached the same conclusion with regard to conspiracy under § 1958. See United States v. Pena, No. 09 CR 341 (VM), Dkt. No. 438 at 2 (S.D.N.Y. July 6, 2020) ().
Drug trafficking offenses, however, are still categorically valid predicates for § 924(c) convictions. Williams v. United States, No. 16-CR-00256 (KMW), ...
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