United States v. Simmon

• Decision Date: 28 December 2015
• Docket Number: 13 Cr. 855 (PGG)
• Citation: 153 F.Supp.3d 617
• Parties: United States of America v. Servino Simmon, Defendant.
• Court: U.S. District Court — Southern District of New York

153 F.Supp.3d 617

United States of America

v.Servino Simmon, Defendant.

13 Cr. 855 (PGG)

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

Signed December 28, 2015

Jared P. Lenow, U.S. Attorneys Office, New York, NY, for Plaintiff.

Mark B. Gombiner, Sarah Jane Baumgartel, Federal Defenders of New York Inc., New York, NY, for Defendant.

MEMORANDUM OPINION & ORDER

Paul G. Gardephe, UNITED STATES DISTRICT JUDGE.

Defendant Servino Simmon—who pleaded guilty to a felon in possession charge, pursuant to 18 U.S.C. § 922(g) —is scheduled for sentencing on December 29, 2015. In a July 28, 2015 Order, this Court ruled on a number of issues relating to the proper application of the Sentencing Guidelines.¹ (Dkt. No. 99) On October 30, 2015—at the Defendant's request—this Court conducted a Fatico hearing. In a post-hearing submission, Defendant contends that (1) he should not receive a four-level enhancement under the Sentencing Guidelines for using a firearm in connection with the New York state felony of Coercion in the First Degree; and (2) his 2005 New York state conviction for second degree robbery does not constitute a “crime of violence” under the Guidelines. (Def. Supp. Sent. Br. (Dkt. No. 111)) For the reasons stated below, this Court concludes that a four-level enhancement is appropriate, and that Defendant's second degree robbery conviction constitutes a “crime of violence” under the Sentencing Guidelines.

BACKGROUND

I. THE TRIAL

Indictment 13 Cr. 855 (PGG) charges Defendant with (1) Hobbs Act robbery, in violation of 18 U.S.C. § 1951 ; (2) using a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c)(l)(A)(ii), and (3) felon in possession, in violation of 18 U.S.C. § 922(g)(1). (See Indictment (Dkt. No. 6))

The Government alleged that Simmon used a firearm in attempting to rob a livery car driver at about 5:00 a.m. on October 19, 2013, at East 137th Street and St. Ann's Avenue in the South Bronx. (Cmplt. ¶ 5(a); Indictment (Dkt. No. 6)) The case proceeded to trial on June 2, 2014. This Court bifurcated the felon in possession count from the Hobbs Act robbery and Section 924(c) charges. (Dkt. No. 18) After several hours of deliberation, the jury returned a verdict acquitting the Defendant on the Hobbs Act robbery and Section 924(c) counts. (Trial Tr. (Dkt. No. 62) at 510)

After accepting the verdict, this Court informed the jury, for the first time, that there would be a second stage of the trial, in which they would consider another charge against the Defendant. (Id. at 511) Both sides gave opening statements concerning the felon in possession charge. (Id. at 512-14) Additional evidence was then received concerning this charge. (Id. at 515-21) After the parties' closing arguments, this Court instructed the jury as to the felon in possession count. (Id. at 526-30) The jury could not reach a verdict on the felon in possession count, however. Accordingly, this Court declared a mistrial. (Trial Tr. (Dkt. No. 64) at 547-48)

II. GUILTY PLEA AND PLEA AGREEMENT

On August 8, 2014, Defendant pleaded guilty to Count Three—the felon in possession charge—before Magistrate Judge Netburn. (Plea Tr. (Dkt. No. 71)) This Court signed an order accepting the plea on August 11, 2014. (Dkt. No. 70)

Defendant pleaded guilty pursuant to a plea agreement that contains a number of stipulations regarding the application of the Sentencing Guidelines, both as to offense level and as to criminal history. As to Defendant's offense level, the plea agreement stipulates that, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), the base offense level is 20, “because the defendant committed the instant offense subsequent to sustaining a felony conviction for a crime of violence, to wit, a conviction on or about April 15, 2005 in New York County Supreme Court of Robbery in the Second Degree.” (Plea Agmt. (Dkt.No. 95) at 2)

III. SENTENCING ISSUES

On September 15, 2014, this Court issued an order directing the parties to address five potential Sentencing Guidelines enhancements that are not discussed in any fashion in the plea agreement. (Dkt. No. 73) On October 27, 2014, Defendant filed a sentencing brief containing a motion to withdraw his guilty plea. (Oct. 27, 2014 Def. Sent. Mem. (Dkt. No. 96) at 2-11) This Court denied that application in a November 10, 2014 bench ruling. (See Dkt. No. 78) This Court again ordered the parties to brief the applicability of the Sentencing Guidelines enhancements listed in its September 15, 2014 Order. (Nov. 10, 2014 Conf. Tr. (Dkt. No. 84) at 20-22) The parties addressed these potential enhancements in submissions filed on November 17, 2014, March 17, 2015, and April 24, 2015. (Dkt. Nos. 81, 82, 87, 90)

On July 28, 2015, this Court issued a memorandum opinion and order concluding that the Defendant's Guidelines range is 100-125 months' imprisonment.² (Dkt. No. 99) On August 14, 2015, Defendant renewed his motion to withdraw his guilty plea, arguing that he is entitled to withdraw his plea because this Court had concluded that he is subject to a higher Guidelines range than the plea agreement contemplates. (Dkt. No. 102) In the alternative, Defendant requested that a Fatico hearing be conducted regarding the factual basis for one of the Sentencing Guidelines enhancements, and that this Court recuse itself. (Id. ) In a September 9, 2015 order, this Court denied Defendant's motion to withdraw his guilty plea and recusal request, but agreed to conduct a Fatico hearing concerning the issue of whether the Defendant had used a firearm to commit the New York state felony of Coercion in the First Degree. (Dkt. No. 106)

The Fatico hearing took place on October 30, 2015. The Government chose to rely on the testimony at trial, and did not offer additional evidence. (Dkt. No. 107) Defendant called the alleged victim, Laye Kromah, a livery car driver. (Dkt. No. 109)

On November 20, 2015, Defendant filed a supplemental sentencing memorandum. (Dkt. No. 111) Defendant argues that (1) he did not commit the state crime of coercion, and therefore the four-level enhancement for using and possessing a firearm in connection with the commission of a felony should not be imposed; and (2) this Court erred in concluding that Defendant's 2005 second degree robbery conviction is a “crime of violence” under the Sentencing Guidelines, and improperly increased Defendant's base offense level by four levels. (Id. ) In a December 12, 2015 letter, the Government argues that Defendant's 2005 robbery conviction constitutes a “crime of violence” under the Sentencing Guidelines. (Dkt. No. 114)

DISCUSSION

I. DEFENDANT'S USE OF A FIREARM TO COMMIT FIRST DEGREE COERCION

Under U.S.S.G. § 2K2.1(b)(6)(B), a defendant convicted of unlawful possession of a firearm is subject to a four-level increase if the defendant “used or possessed any firearm or ammunition in connection with another felony offense ....” In its September 15, 2014 Order, this Court directed the parties to address, inter alia , “whether Defendant used or possessed a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B) & cmt. n.14” and, in particular, “whether the evidence adduced at trial demonstrated that Defendant committed the crime[ ] of Coercion in the First Degree—in violation of N.Y. Penal Law § 135.65 —when he allegedly demanded that Mr. Kromah drive him to 137th Street and St. Ann's Avenue .... ” (Sept. 15, 2014 Order (Dkt. No. 73) at 2)

New York Penal Law § 135.65 provides that a person is guilty of the felony offense of Coercion in the First Degree when he “compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he or she has a legal right to engage,” by “instilling in the victim a fear that he ... will cause physical injury to [the] person or cause damage to property.” N.Y. Penal Law §§ 135.60, 135.65(1).

In its July 28, 2015 Order, this Court found that Kromah's trial testimony “was entirely credible on the issue of whether Defendant threatened him with a firearm in order to induce him to drive Defendant to a second location.” (July 28, 2015 Order (Dkt. No. 99) at 17) As this Court noted in the July 28 Order,

[t]hrough an interpreter, Kromah testified: “[Defendant] said if I don't go to [137th and St. Ann's Avenue], he going to shoot me with a gun. ... He [then] point[ed] the gun at me.” (Trial Tr. (Dkt. No. 46) at 34) In English, Kromah testified that “[Defendant] said, I go to 137, St. Anns. I say, I don't want to go there. He said, if you don't go there, I going to kill you.” (Id. at 35) In sum, Kromah's testimony [at trial] very clearly sets forth that Defendant explicitly threatened him with harm if Kromah refused to drive the Defendant to the second location.

(Id. at 20) This Court further concluded that, under the circumstances, Kromah had a “legal right to abstain from [driving Defendant to the second location].” (Id. at 21-23)

In this Court's September 9, 2015 Order, it noted that “[t]here may be an argument that defense counsel had less incentive to cross-examine Kromah about the alleged coercion at trial than he would at a sentencing hearing, given that the Defendant was not charged with coercion at trial but now faces a four-level enhancement for coercion under the Guidelines.” (Sept. 9, 2015 Order (Dkt. No. 106) at 8) Accordingly, this Court scheduled a Fatico hearing for October 30, 2015. At that hearing, the Defendant questioned Kromah about his interaction with the Defendant on the night of October 19, 2013.

Kromah's testimony at the Fatico hearing concerning the alleged coercion mirrored his trial testimony on this point. At the Fatico hearing, Kromah testified that the Defendant demanded that Kromah drive him to a second location, that Kromah refused, and that the Defendant—brandishing a firearm—then threatened to shoot Kromah if he did not drive to the second location:

Q: Now, after you asked him for money, is that when [the Defendant]

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