United States v. Varona
| Decision Date | 08 July 2021 |
| Docket Number | 1:16-cv-4664-PAC,1:95-cr-1027-PAC |
| Parties | UNITED STATES OF AMERICA, Respondent, v. RANDY VARONA, Defendant-Movant. |
| Court | U.S. District Court — Southern District of New York |
ORDER DENYING PETITION UNDER 28 U.S.C. § 2255
Randy Varona petitions under 28 U.S.C. § 2255 to vacate his quarter-century-old conviction and sentence for “ [possession of a firearm in relation with a crime of violence” in violation of 18 U.S.C. § 924(c). Judgment 1, ECF No. 27.[1] Varona argues that his § 924(c) conviction is invalid because the predicate offense, murder in aid of racketeering in violation of 18 U.S.C. § 1959(a), is not categorically a “crime of violence.” Mem. Supp. Mot. to Vacate Under 28 U.S.C § 2255 at 1, ECF No. 65 (“Br. Supp.”). Varona argues that murder in aid of racketeering is indivisible, meaning that the Court is not permitted to consider Varona's plea allocution to determine which type of murder Varona, in fact, committed. Id. at 11-15. Varona contends that murder in aid of racketeering encompasses reckless conduct and felony murder, which do not necessarily involve the use of physical force against the person of another, so murder in aid of racketeering cannot categorically be a crime of violence under § 924(c)(3)(A). Id. at 8-11. Alternatively, Varona argues that even if the Court considers the plea allocution and concludes that Varona committed an intentional murder his murder in aid of racketeering still cannot categorically be a crime of violence because it can be committed by omission, and omission is a form of inaction that does not constitute a “use” of physical force. Id. at 16-21. The Court concludes that (1) 18 U.S.C § 1959(a) is divisible; (2) Varona committed an intentional murder; and (3) intentional murder in aid of racketeering is a crime of violence within the meaning of § 924(c)(3)(A), even though one can commit the offense through omission. Therefore, Varona's § 924(c) conviction was predicated on a valid crime of violence, and Varona's petition is denied.
On July 26, 1996, Varona waived his right to an indictment and pleaded guilty to all three counts of the (S2) Superseding Information, ECF Nos. 24-25. Count One charged Varona with participation in a racketeering enterprise in violation of 18 U.S.C. § 1962(c); Count Two charged Varona with using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and Count Three charged Varona with conspiracy to use a dangerous weapon in aid of racketeering activity in violation of 18 U.S.C. § 1959(a). Superseding Information 1-4, ECF No. 25. The predicate “crime of violence” for Count Two was “the murder in aid of racketeering of Pedro Meile.” Id. at 4; Br. Supp. at 2.
On April 10, 1997, the Honorable John S. Martin, Jr, sentenced Varona to 20 years' imprisonment on Count One, five years on Count Two, and three years on Count Three, to be served consecutively, for a total of 28 years' imprisonment. Judgment 2; see also Docket Entry dated Apr. 10, 1997. Varona was released on July 19, 2019. Br. Supp. 3. Judge Martin also imposed a term of 3 years' supervised release to begin upon Varona's release from prison. Judgment 3. Varona did not appeal this judgment of conviction. Mot. to Vacate Under 28 U.S.C. § 2255 at 3, ECF No. 59 (“§ 2255 Mot.”).
On June 17, 2016, Varona filed a placeholder habeas petition[2] to vacate his conviction and sentence under Count Two, arguing that murder in aid of racketeering cannot serve as the predicate crime of violence for his § 924(c) offense because Johnson v. United States, 576 U.S. 591 (2015), invalidated the “residual clause” found in § 924(c)(3)(B)'s definition of a “crime of violence, ” and murder in aid of racketeering is not categorically a crime of violence under § 924(c)(3)(A)'s “elements clause” “because it does not necessarily require, as an element, either (1) the presence of violent physical force or (2) the intentional employment of such force.” § 2255 Mot. 5.
Upon his release from custody on July 19, 2019, Varona began serving his term of supervised release.[3] Br. Supp. 3. Counsel filed a memorandum of law in support of Varona's habeas petition on October 21, 2019 (id.), and the Government opposed the petition on December 20, 2019, arguing that Varona's petition is procedurally defaulted and without merit (Mem. Opp'n, ECF No. 70). The parties also raised supplemental authority to the Court's attention (see ECF Nos. 71-73).
A prisoner who is in custody on a federal conviction may move the sentencing court to vacate, set aside, or correct the sentence on the grounds that it was imposed in violation of the Constitution or the laws of the United States or is otherwise subject to collateral attack. 28 U.S.C. § 2255. The petitioner bears the burden of proving his entitlement to relief by a preponderance of the evidence. Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
A defendant is generally barred “from collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal.” United States v. Thom, 659 F.3d 227, 231 (2d Cir. 2011). But there is an exception: the defendant may bring his challenge if he “establishes (1) cause for the procedural default and ensuing prejudice or (2) actual innocence.” Id. To show cause, the movant must establish that an objective obstacle prevented him from raising the issue on direct appeal, e.g., that the claim is so novel that it was not reasonably available to the movant at the time of his appeal. Bousley v. United States, 523 U.S. 614, 622 (1998). To show prejudice, the movant must establish “an error that ‘worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimension.'” Sanchez v. United States, Nos. 16-CV-9418, 10-CR-392-19, 2021 WL 1164538, at *2 (Mar. 25, 2021) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)). And actual innocence requires “factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623.
The Government argues that because Varona failed to appeal his conviction, he has procedurally defaulted his claim that § 924(c)(3)(B)'s residual clause is unconstitutionally vague. Opp'n 9-11. The Government contends that, because several litigants had raised vagueness challenges to other aspects of § 924(c) at the time that Varona's conviction became final in 1997, and one raised a vagueness challenge to § 924(c)'s definition of “crime of violence” in 1998 (as it related to possession of a firearm silencer), Varona's vagueness challenge to the residual clause was not “so novel that its legal basis [was] not reasonably available to counsel.” Opp'n 9-10 (quoting Whitman v. United States, 754 Fed.Appx. 40, 42 (2d Cir. 2018)) (alteration in original). But without any evidence that United States v. Davis, 139 S.Ct. 1204 (2018), Sessions v. Dimaya, 138 S.Ct. 1204 (2018), or Johnson v. United States, 135 S.Ct. 2551 (2015) were even a tiny blip on “any body's radar screen in 1997 or 1998, ” the Court “will assume that the claim here is so novel that it was not reasonably available to counsel at the time.” Vilar v. United States, Nos. 96-CR-551, 16-CV-5283, 2020 WL 85505, at *2 (S.D.N.Y. Jan. 3, 2020). Nevertheless, Varona has not established that he was prejudiced or that he is actually innocent, because, as explained below, the predicate offense (which Varona does not claim to be innocent of) is a crime of violence under § 924(c)(3) (A)'s elements clause. See Sanchez, 2021 WL 1164538, at *3. Accordingly, Varona's motion is procedurally barred, and it also fails on the merits.
“A defendant is guilty of violating Section 924(c) if he used or carried a firearm during and in relation to, or possessed a firearm in furtherance of, a ‘crime of violence' or ‘drug trafficking crime.'” Dejesus v. United States, Nos. 16 CV 4878, 11 CR 974-03, 2019 WL 6711478, at *2 (S.D.N.Y. Dec. 10, 2019) (quoting 18 U.S.C. § 924(c)(1)(A)). Following the Supreme Court's holding that § 924(c)(3)(B)'s residual clause is unconstitutionally vague (Davis, 139 S.Ct. at 2336 (2019)), only an offense that satisfies § 924(c)(3)(A)'s elements clause can qualify as a crime of violence predicate to a § 924(c) charge. Boykin v. United States, Nos. 16 CV 4185, S1110 CR 391-61, 2020 WL 774293, at *5 (S.D.N.Y. Feb. 18, 2020) (“[Section] 924(c)(3)(B) has been effectively stricken from the statute.”). The elements clause defines a “crime of violence” as “an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A).
To resolve whether a given felony is a crime of violence under the elements clause, courts employ one of two analytical paths: (1) the “categorical approach, ” or (2) the “modified categorical approach.” Boykin, 2020 WL 774293, at *5 (citing Mathis v United States, 136 S.Ct. 2243, 2248-49 (2016)). Under the categorical approach, the court “must determine whether a given offense is a crime of violence by focusing categorically on the offense's statutory definition, i.e., the intrinsic elements of the offense, rather than on the defendant's particular underlying conduct.” United States v. McCoy, 995 F.3d 32, 54 (2d Cir. 2021). In doing this, the court is simply comparing the legal elements of the predicate offense to the elements clause of § 924(c)(3)(A). See Boykin, 2020 WL 774293, at *5. But if the predicate offense statute is “‘divisible'-i.e., it defines multiple separate crimes-we apply the ‘modified categorical' approach and look at ‘a limited class of documents' from the record of conviction to ‘determine what...
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