united states district court southern district of new … v. alton campell 2255 motion.… ·...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------X ALTON CAMPBELL, : No. 16-cv-____ Movant, : - against - : UNITED STATES OF AMERICA, : Respondent. : ------------------------------------------------------X

MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN CUSTODY

Matthew B. Larsen FEDERAL DEFENDERS OF NEW YORK 52 Duane Street, 10th Floor New York, New York 10007 Tel.: (212) 417-8725 Email: [email protected]

Attorneys for Movant

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TABLES OF CONTENTS Page

INTRODUCTION ..................................................................................................... 1 BACKGROUND ....................................................................................................... 1 SUMMARY OF ARGUMENT ................................................................................. 4 ARGUMENT ............................................................................................................. 5 The Court Should Vacate Campbell’s 15-Year Sentence Because it Exceeds the 10-Year Statutory Maximum ................................................................. 5

A. Campbell’s Motion is Not “Second or Successive” .............................. 5

B. Campbell’s Motion is Timely ............................................................... 7

C. Campbell’s 15-Year Sentence is Unlawful Because He is Not an Armed Career Criminal ............................................................. 9

1. Attempted New York Burglary is Not a “Violent Felony” ......10

2. New York Assault is Not a “Violent Felony” ..........................15

3. Attempted New York Robbery is Not a “Violent Felony” .......17

CONCLUSION ........................................................................................................24

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TABLE OF AUTHORITIES Page(s)

Federal Cases

Adams v. United States, 155 F.3d 582 (2d Cir. 1998) .......................................................................... 6

Alleyne v. United States, 133 S. Ct. 2151 (2013) ................................................................................... 3

Campbell v. United States, 555 U.S. 847 (2008) ....................................................................................... 2

Castro v. United States, 540 U.S. 375 (2003) ....................................................................................... 6

Descamps v. United States, 133 S. Ct. 2276 (2013) ............................................................... 10-11, 13, 14

Garcia v. Gonzalez, 455 F.3d 465 (4th Cir. 2006) ....................................................................... 16

Garcia-Santos v. United States, 273 F.3d 506 (2d Cir. 2001) .......................................................................... 9

In re Watkins, 810 F.3d 375 (6th Cir. 2015) ......................................................................... 8

James v. United States, 550 U.S. 192 (2007) ................................................................................. 7, 12

Johnson v. United States, 135 S. Ct. 2551 (2015) .......................................................................... passim

Johnson v. United States, 559 U.S. 133 (2010) ......................................................................... 19, 22, 23

Liriano v. United States, 95 F.3d 119 (2d Cir. 1996) ............................................................................ 7

Magwood v. Patterson, 561 U.S. 320 (2010) ....................................................................................... 5

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TABLE OF AUTHORITIES (cont.) Page(s)

Mellouli v. Lynch, 135 S. Ct. 1980 (2015) ................................................................................. 11

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) ........................................................................... 11, 14

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ..................................................................................... 8

Oyebanji v. Gonzalez, 418 F.3d 260 (3d Cir. 2005) ........................................................................ 16

Price v. United States, 795 F.3d 731 (7th Cir. 2015) ......................................................................... 8

Sanders v. Ramos, 2013 WL 594229 (S.D.N.Y. 2013) ............................................................... 6

Schriro v. Summerlin, 542 U.S. 348 (2004) ....................................................................................... 9

Shepard v. United States, 544 U.S. 13 (2005) ....................................................................................... 14

United States v. Acosta, 470 F.3d 132 (2d Cir. 2006) .................................................................. 11, 14

United States v. Allah, 130 F.3d 33 (2d Cir. 1997) .......................................................................... 20

United States v. Avitto, No. 15-cr-265 (E.D.N.Y. Mar. 14, 2016) .................................................... 20

United States v. Beardsley, 691 F.3d 252 (2d Cir. 2012) .................................................................. 13-14

United States v. Brown, 52 F.3d 415 (2d Cir. 1995) .......................................................................... 20

United States v. Campbell, 266 F. App’x 57 (2d Cir. 2008) ..................................................................... 2

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United States v. Lynch, 518 F.3d 164 (2d Cir. 2008) ........................................................................ 12

United States v. Moncrieffe, ___ F.Supp.3d ___, 2016 WL 913391 (E.D.N.Y. Mar. 10, 2016) .............. 20

United States v. Portela, 469 F.3d 496 (6th Cir. 2006) ....................................................................... 16

United States v. Reyes, 691 F.3d 453 (2d Cir. 2012) ........................................................................ 14

United States v. Rodriguez-Negrete, 772 F.3d 221 (5th Cir. 2014) ..................................................... 14, 15, 17, 24

United States v. Walker, 442 F.3d 787 (2d Cir. 2006) ........................................................................ 17

Vasquez v. Parrott, 318 F.3d 387 (2d Cir. 2003) ...................................................................... 5, 7

Whorton v. Bockting, 549 U.S. 406 (2007) ................................................................................... 7-8

Federal Statutes 18 U.S.C. § 922(g)(1)............................................................................................ 1, 9 18 U.S.C. § 924(a)(2) ................................................................................................ 9 18 U.S.C. § 924(e) ................................................................................. 1, 11, 12, 19 28 U.S.C. § 2255(a) ................................................................................................. 5 28 U.S.C. § 2255(b) ................................................................................................. 5 28 U.S.C. § 2255(f)(3) ............................................................................................. 7 28 U.S.C. § 2255(h) ................................................................................................. 5

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State Cases People v. Acton,

540 N.Y.S.2d 544 (App. Div. 1989) .............................................................. 15 People v. Barksdale,

858 N.Y.S.2d 5 (App. Div. 2008) ........................................................... 22, 24 People v. Bell,

490 N.Y.S.2d 402 (App. Div. 1985) ....................................................... 15, 17 People v. Bennett,

631 N.Y.S.2d 834 (App. Div. 1995). ..................................................... 21, 24 People v. Bracey,

41 N.Y.2d 296 (1977) ................................................................................... 18 People v. Brown,

663 N.Y.S.2d 539 (App. Div. 1997) ....................................................... 22, 24 People v. Carrington,

815 N.Y.S.2d 560 (App. Div. 2006) ............................................................. 15 People v. Chambers,

506 N.Y.S.2d 782 (App. Div. 1986) ...................................................... 13, 15 People v. Durden,

775 N.Y.S.2d 248 (App. Div. 2004) ........................................................ 23, 24 People v. Flores,

756 N.Y.S.2d 491 (App. Div. 2003) ................................................ 12-13, 15 People v. Forino,

828 N.Y.S.2d 81 (App. Div. 2006) ........................................................ 12, 15 People v. Hissin,

699 N.Y.S.2d 773 (App. Div. 1999) ...................................................... 13, 15

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People v. Lee, 602 N.Y.S.2d 138 (App. Div. 1993). ....................................................... 21, 24

People v. Lipson,

560 N.Y.S.2d 218 (App. Div. 1990) ........................................................ 13, 15 People v. Mahboubian,

74 N.Y.2d 174 (1989) .................................................................................... 18

People v. Moses, 556 N.Y.S.2d 890 (App. Div. 1990) ....................................................... 23, 24

People v. Naradzay,

11 N.Y.3d 460 (2008) ............................................................................. 18, 19 People v. Patton,

585 N.Y.S.2d 431 (App. Div. 1992) ....................................................... 21, 24 People v. Safon,

560 N.Y.S.2d 552 (App. Div. 1990) ....................................................... 21, 24

People v. Wilson, N.Y.S.2d 366 (App. Div. 1987) .................................................................... .15

State Statutes

N.Y. Penal Law § 110.10 ................................................................................. 15, 24 N.Y. Penal Law § 120.05 ................................................................................. 15, 17 N.Y. Penal Law § 140.25 ........................................................................... 10, 13, 15 N.Y. Penal Law § 160.00 (1982) ........................................................................... 20 N.Y. Penal Law § 160.10 (1982) ................................................................ 18, 22, 24

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INTRODUCTION

Alton Campbell moves to vacate his 15-year sentence, which was imposed

pursuant to the Armed Career Criminal Act (“ACCA”). That sentence is unlawful

because, given Johnson v. United States, 135 S. Ct. 2551 (2015), Campbell does

not have the three prior convictions – for a “violent felony” and/or “serious drug

offense” – needed to trigger it.

Because Campbell does not have the requisite three qualifying convictions,

he is not an armed career criminal and his 15-year sentence exceeds the 10-year

statutory maximum applicable to his crime of unlawfully possessing a gun. As he

has already served more than 10 years, the Court should order his release.

BACKGROUND

Campbell was taken into federal custody in August 2004. PSR p. 1. After a

bench trial in January 2006, he was convicted of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1).

In his presentence report, the probation officer said he had three “violent

felony” prior convictions (for attempted New York burglary in the second degree,

New York assault in the second degree, and attempted New York robbery in the

second degree) and one “serious drug offense” prior (for attempted New York

criminal sale of a controlled substance in the third degree). PSR ¶ 23.

Under ACCA, a defendant with three prior “violent felony” convictions is

deemed an armed career criminal and subject to a 15-year mandatory minimum.

See 18 U.S.C. § 924(e). As discussed further below, a “violent felony” has a

statutory definition with two clauses: ACCA’s force clause (the crime involves

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“the use, attempted use, or threatened use of physical force against the person of

another”), and ACCA’s residual clause (the crime involves “conduct that presents

a serious potential risk of physical injury to another”).

Finding Campbell to be an armed career criminal, in April 2006 the Court

sentenced him to the mandatory minimum term of 15 years’ imprisonment. See

Sentencing Transcript (attached hereto as Exhibit A); United States v. Campbell,

S.D.N.Y. No. 04-cr-903, Dkt. 29 (judgment reflecting 180-month term).

The Second Circuit affirmed Campbell’s conviction, see United States v.

Campbell, 266 F. App’x 57 (2d Cir. 2008) (summary order), and the Supreme

Court declined review. See Campbell v. United States, 555 U.S. 847 (2008).

In March 2010, Campbell wrote this Court “a letter . . . noting various

sympathetic circumstances about his situation, including his commendable efforts

at rehabilitation following his incarceration, and asking the court for a reduction of

his sentence.” United States v. Campbell, S.D.N.Y. No. 04-cr-903, Dkt. 34 at 1.

The Court denied this request, explaining: [A]t the time of his sentencing, the Court stated that the 15-year mandatory minimum sentence was arguably excessively harsh, even in light of defendant’s record of convictions for serious crimes. The Court noted that without the mandatory minimum sentence, it would likely have imposed a sentence lower than 15-years imprisonment. However, barring exceptional circumstances that are not present here, the Court lacks authority to reduce a sentence, once imposed. Even if the Court could modify defendant’s sentence, it could not lower it below 180 months, which is the mandatory minimum.

Id. at 1-2 (citations omitted).

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In July 2013, Campbell sent a handwritten one-page letter to the Court:

“I would like to know if I am entitled to any relief in regards to” Alleyne v. United

States, 133 S. Ct. 2151 (2013). See United States v. Campbell, S.D.N.Y. No. 04-

cr-903, Dkt. 36 (also docketed at Campbell v. United States, S.D.N.Y. No. 13-cv-

5145, Dkt. 3). The Court issued an order constru[ing] Movant’s letter as a motion for relief under 28 U.S.C. § 2255 . . . . If Movant does not want to pursue relief under § 2255, he may notify the Court in writing within sixty days that he wishes to withdraw the application. . . . If Movant does not inform the Court of his intent within sixty days, the application may be dismissed without prejudice.

Id. at 2.

The Court simultaneously sent Campbell a “form for an amended motion

under 28 U.S.C. § 2255” to be completed “if Movant seeks to raise his claims

under that statute.” Id. at 3. If Campbell wanted to pursue relief under § 2255, the

Court said, he had to specify the “grounds for relief and the underlying facts and

legal theory supporting each ground so that the issues presented in the petition may

be adjudicated.” Id. The order concluded: “Movant is directed to file an amended

motion within sixty days of this order and to inform that court if he wants to

proceed with his motion under 28 U.S.C. § 2255.” Id. Campbell did not respond.

The Court then issued an Order of Dismissal: [T]he Court directed Movant to file an amended motion, under 28 U.S.C. § 2255, within sixty days. That order specified that failure to comply would result in dismissal of this matter. Movant has not filed an amended motion. Accordingly, the Court dismisses this § 2255 motion, under Rule 41(b) of the Federal Rules of Civil Procedure, for failure to comply with the Court’s order.

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Campbell v. United States, S.D.N.Y. No. 13-cv-5145, Dkt. 4.

Campbell wrote the Court again in December 2015, this time asking “if I

qualify for any relief of my time under the findings of the Johnson case . . . and if

so what type of motion do I have to file.” United States v. Campbell, S.D.N.Y. No.

04-cr-903, Dkt. 38.

The instant motion, prepared by undersigned counsel, followed.

SUMMARY OF ARGUMENT

This is Campbell’s first genuine § 2255 motion. His July 2013 letter did not

invoke § 2255 and did not otherwise comply with § 2255. The Court thus asked

him “if” he wanted to proceed under § 2255 and said a failure to respond could

result in dismissal “without prejudice.” When he did not respond, however, the

Court dismissed his pro se application with prejudice. On these facts, his letter

does not constitute a § 2255 motion and, as such, this is his first § 2255 motion.

Campbell is not an armed career criminal. None of his prior convictions that

were identified as “violent felonies” – attempted New York burglary, New York

assault, and attempted New York robbery – requires “the use, attempted use, or

threatened use of physical force against the person of another.” These offenses are

therefore not “violent felonies” under ACCA’s force clause. And ACCA’s

residual clause, which otherwise could have covered these offenses, was

invalidated in Johnson v. United States, 135 S. Ct. 2551 (2015).

Because Campbell is not an armed career criminal, the maximum penalty for

his unlawful gun possession is 10 years. As he has already served more than that,

the Court should grant his motion and order his release.

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ARGUMENT The Court Should Vacate Campbell’s 15-Year Sentence Because it

Exceeds the 10-Year Statutory Maximum

A federal sentence “in excess of the maximum authorized by law” is subject

to challenge. 28 U.S.C. § 2255(a). And if the sentence is “not authorized by law .

. . , the court shall vacate and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or correct the sentence as may

appear appropriate.” § 2255(b).

A. Campbell’s Motion is Not “Second or Successive”

A motion made under § 2255 that is “second or successive” must be

“certified . . . by a panel of the appropriate court of appeals.” § 2255(h). Yet

“second or successive” is a “term of art,” and “it is well settled that the phrase

does not simply refer to all [] applications filed second or successively in time.”

Magwood v. Patterson, 561 U.S. 320, 332 (2010) (internal punctuation and citation

omitted). In other words, “[n]ot all petitions . . . count under [the] successive

petition rule.” Vasquez v. Parrott, 318 F.3d 387, 390 (2d Cir. 2003).

Campbell’s handwritten one-page letter from July 2013 does not count as a

§ 2255 motion. The letter did not invoke § 2255 and, as the Court noted, it did not

state the “grounds for relief and the underlying facts and legal theory supporting

each ground so that the issues presented in the petition may be adjudicated.”

Campbell v. United States, S.D.N.Y. No. 13-cv-5145, Dkt. 3 at 3. The Court thus

sent Campbell a “form for an amended motion under 28 U.S.C. § 2255, if Movant

seeks to raise his claims under that statute.” Id. (emphasis added). Though the

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Court said it was construing the letter as a § 2255 motion, the Court also asked

Campbell to “inform th[e] court if he wants to proceed with his motion under 28

U.S.C. § 2255.” Id. (emphasis added). Absent a response, the Court said, “the

application may be dismissed without prejudice.” Id. at 2 (emphasis added).

On this record, Campbell was not adequately “warn[ed] . . . that the

recharacterization will subject subsequent § 2255 motions to the law’s ‘second or

successive’ restrictions.” Castro v. United States, 540 U.S. 375, 377 (2003).

Though the Court noted “Movant will have one opportunity within the limitations

period for a full adjudication of his claims,” Campbell v. United States, S.D.N.Y.

No. 13-cv-5145, Dkt. 3 at 2 (footnote omitted), in the next sentence the Court said:

“If Movant does not inform the Court of his intent within sixty days, the

application may be dismissed without prejudice.” Id. (emphasis added).

The Court thus told Campbell that, if he did nothing, his application could be

dismissed without prejudice. It did not warn him that, if he did nothing, his

application would be dismissed with prejudice and thus “cause the movant’s

subsequent filing of a motion under § 2255 to be barred as a ‘second’ § 2255.”

Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998) (per curiam).

And a dismissal with prejudice is just what the Court ordered, invoking

Federal Rule of Civil Procedure 41(b), which states in relevant part that a

“dismissal under this subdivision . . . operates as an adjudication on the merits.”

See Campbell v. United States, S.D.N.Y. No. 13-cv-5145, Dkt. 4 (dismissing per

Rule 41(b)); Sanders v. Ramos, 2013 WL 594229, at *2 (S.D.N.Y. 2013)

(“Because a Rule 41(b) dismissal ‘operates as an adjudication on the merits,’ the

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dismissal is with prejudice.”).

Because Campbell was not adequately warned that the Court’s

recharacterization of his July 2013 letter as a § 2255 motion would subject later

motions to the “second or successive” bar, his letter does not “count under [the]

successive petition rule.” Vasquez, 318 F.3d at 390.1

B. Campbell’s Motion is Timely

A § 2255 motion is timely if [1] filed within one year of “the date on which

the right asserted was initially recognized by the Supreme Court, if [2] that right

has been newly recognized by the Supreme Court and [3] made retroactively

applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3).

First, Campbell’s motion was filed within a year of the June 26, 2015,

Johnson ruling on which he relies.

Second, the rule announced in Johnson – that ACCA’s residual clause is

“unconstitutionally vague,” 135 S. Ct. at 2557 – is new. Indeed, the Johnson Court

overruled two cases that upheld the residual clause against vagueness challenges.

See id. at 2563 (overruling Sykes v. United States, 564 U.S. 1 (2011), and James v.

United States, 550 U.S. 192 (2007)). Cf. Whorton v. Bockting, 549 U.S. 406, 416

(2007) (“Crawford announced a new rule” and was “not ‘dictated’ by prior

1 Should the Court disagree and find that the pro se Campbell was adequately warned, and thus that the instant § 2255 motion is “second or successive,” the Court should transfer the instant motion to the Court of Appeals for further proceedings. See Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam) (“[W]hen a second or successive petition for habeas corpus relief or § 2255 motion is filed in a district court without the authorization by this Court . . . , the district court should transfer the petition or motion to this Court.”).

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precedent. Quite the opposite is true: The Crawford rule is flatly inconsistent with

the prior governing precedent [] which Crawford overruled.”).

Third, Johnson applies retroactively. The government has taken that

position in the case posing the question to the Supreme Court, see Brief for the

United States, Welch v. United States, Sup. Ct. No. 15-6418, and at least two

Courts of Appeals have held that Johnson applies retroactively. See In re Watkins,

810 F.3d 375, 383 (6th Cir. 2015) (“Because Johnson prohibits the imposition of

an increased sentence on those defendants whose status as armed career criminals

is dependent on offenses that fall within the residual clause, we agree with the

Seventh Circuit that ‘[t]here is no escaping the logical conclusion that the

[Supreme] Court itself has made Johnson categorically retroactive to cases on

collateral review.’”) (emphasis and citation omitted); Price v. United States, 795

F.3d 731, 734 (7th Cir. 2015) (“Johnson, we conclude, announced a new

substantive rule. In deciding that the residual clause is unconstitutionally vague,

the Supreme Court prohibited ‘a certain category of punishment for a class of

defendants because of their status.’”) (citation omitted).

This view is well taken. “[C]ourts must give retroactive effect to new

substantive rules of constitutional law. Substantive rules include . . . ‘rules

prohibiting a certain category of punishment for a class of defendants because of

their status or offense.’” Montgomery v. Louisiana, 136 S. Ct. 718, 728 (2016)

(citation omitted). The Johnson rule is just that: it prohibits a certain category of

punishment (ACCA’s 15-year mandatory minimum) for a certain class of

defendants (those facing 15 years only because of ACCA’s residual clause).

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“New substantive rules . . . narrow the scope of a criminal statute by

interpreting its terms,” Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (emphasis

omitted), which is what Johnson did: by finding the terms of ACCA’s residual

clause unconstitutionally vague, and thus excising the clause, Johnson narrowed

ACCA’s scope and put “particular . . . persons covered by the statute beyond the

State’s power to punish.” Id. at 352. See Johnson, 135 S. Ct. at 2563 (“We hold

that imposing an increased sentence under the residual clause of the Armed Career

Criminal Act violates the Constitution’s guarantee of due process.”); id. at 2560

(“Invoking so shapeless a provision to condemn someone to prison for 15 years to

life does not comport with the Constitution’s guarantee of due process.”).

Because Campbell filed the instant motion within one year of Johnson,

which announced a new and retroactive rule, the motion is timely.2 C. Campbell’s 15-Year Sentence is Unlawful Because He is Not an

Armed Career Criminal

Campbell was convicted of violating 18 U.S.C. § 922(g)(1), which carries a

statutory maximum punishment of 10 years’ imprisonment. See § 924(a)(2). That

punishment is increased to a 15-year minimum under ACCA, however, if the

2 Campbell stipulated at his 2006 bench trial to having three “violent felony” convictions under the law as it then stood, see Exhibit A at 20, but he did not sign an appeal waiver or otherwise surrender his right to challenge his sentence via 28 U.S.C. § 2255 given the change that Johnson has wrought. See Garcia-Santos v. United States, 273 F.3d 506, 508 (2d Cir. 2001) (per curiam) (affirming dismissal of § 2255 motion because movant’s “plea agreement was entered into knowingly and voluntarily, and with awareness of his waiver of appeal and collateral attack”).

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defendant is deemed an armed career criminal on account of having three prior

convictions for a “violent felony” and/or “serious drug offense.” See § 924(e)(1).

Campbell does not have the requisite three convictions.

1. Attempted New York Burglary is Not a “Violent Felony”

Some 30 years ago, when he was 21, Campbell was arrested and ultimately

convicted of Attempted New York Burglary in the Second Degree. PSR ¶ 34. The

statute in effect, both when Campbell was convicted and today, reads:

A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when: 1. In effecting entry or while in the building or in immediate flight

therefrom, he or another participant in the crime:

(a) Is armed with explosives or a deadly weapon; or

(b) Causes physical injury to any person who is not a participant in the crime; or

(c) Uses or threatens the immediate use of a dangerous instrument; or

(d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or

2. The building is a dwelling.

N.Y. Penal Law § 140.25.

To determine if a prior conviction is for a “violent felony,” courts use the

categorical approach and “may ‘look only to the statutory definitions’ – i.e., the

elements – of a defendant’s prior offenses, and not ‘to the particular facts

11

underlying those convictions.’” Descamps v. United States, 133 S. Ct. 2276, 2283

(2013) (emphasis in original; citation omitted). “[I]f the statute sweeps more

broadly than the generic [federal] crime, a conviction under that law cannot count

as [a qualifying] predicate, even if the defendant actually committed the offense in

its generic form. The key . . . is elements, not facts.” Id. See also Mellouli v.

Lynch, 135 S. Ct. 1980, 1986 (2015) (Per the categorical approach, the defendant’s

“actual conduct is irrelevant to the inquiry.”).

“Under this categorical approach, we focus on the intrinsic nature of the

offense rather than on the circumstances of the particular crime. Consequently,

only the minimum criminal conduct necessary for conviction under a particular

statute is relevant.” United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006) (per

curiam). See also Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (“Because

we examine what the state conviction necessarily involved, not the facts

underlying the case, we must presume that the conviction ‘rested upon [nothing]

more than the least of th[e] acts’ criminalized.”) (citation omitted).

ACCA defines a “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause]; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause].

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18 U.S.C. § 924(e)(2)(B).

Though “burglary” is enumerated in (ii) above, attempted burglary is not;

attempted burglary is a “violent felony” only under ACCA’s residual clause. See

James, 550 U.S. at 197 (“Attempted burglary is not . . . ‘burglary,’” but it “falls

within ACCA’s residual provision for crimes that ‘otherwise involv[e] conduct that

presents a serious potential risk of physical injury to another.’”) (citation omitted),

overruled on other grounds by Johnson, 135 S. Ct. at 2563. See also United States

v. Lynch, 518 F.3d 164, 169 (2d Cir. 2008) (“[A]ttempted burglary in the third

degree under New York law . . . constitutes a ‘violent felony’ because it falls under

the ACCA’s residual provision.”).

As the Supreme Court has now held, ACCA’s residual clause is

“unconstitutionally vague,” Johnson, 135 S. Ct. at 2557, and thus cannot be used to

deem attempted burglary (or any crime) a “violent felony.”

That leaves ACCA’s force clause. It is clear that second-degree New York

burglary can be attempted without proof of “the use, attempted use, or threatened

use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

See People v. Forino, 828 N.Y.S.2d 81, 82 (App. Div. 2006) (“The defendant’s

attempt to open the locked sliding door, while wearing a pair of gloves in early

September and layers of clothing that could easily be removed to change his

appearance, as well as his unexplained and unauthorized presence on the premises,

constituted legally sufficient evidence to support the charge of attempted burglary

in the second degree.”); People v. Flores, 756 N.Y.S.2d 491, 492 (App. Div. 2003)

(“The defendant’s attempt to open one complainant’s locked apartment door was

13

sufficient evidence of conduct tending to effect the commission of the crime to

support his conviction of attempted burglary in the second degree.”); People v.

Hissin, 699 N.Y.S.2d 773, 774 (App. Div. 1999) (“Since defendant admittedly

went to the apartment for the purpose of stealing, his attempt to enter the apartment

through the locked door is conduct tending to effect the commission of the crime

[attempted second-degree burglary].”); People v. Lipson, 560 N.Y.S.2d 218, 218

(App. Div. 1990) (affirming conviction for attempted second-degree burglary

where defendant “attempt[ed] to gain entry to the subject premises,” had “tools

used in break-ins” and, once caught, said “‘You can’t lock me up, I didn’t get in

yet.’”); People v. Chambers, 506 N.Y.S.2d 782, 783 (App. Div. 1986) (noting

“overwhelming proof of the defendant’s guilt” of attempted second-degree

burglary where he was “seen by an eyewitness climbing on the outside of an

apartment building, stopping on a window ledge, and trying to open the window”).

It is only under ACCA’s residual clause that an attempted violation of N.Y.

Penal Law § 140.25 categorically qualifies as a “violent felony.” Yet, as the

Supreme Court has held, ACCA’s residual clause is “unconstitutionally vague.”

Johnson, 135 S. Ct. at 2557. Attempted New York burglary in the second degree

is therefore not a categorical “violent felony.”

In a “narrow range of cases,” what the Supreme Court has “dub[bed] the

‘modified categorical approach’” may be applied, but only if the statute is

“divisible” and only if a “limited class of documents” is available. Descamps, 133

S. Ct. at 2283-84. Such documents, called Shepard documents, are limited “to the

‘charging document, written plea agreement, transcript of plea colloquy, and any

14

explicit factual finding by the trial judge to which the defendant assented.’”

United States v. Beardsley, 691 F.3d 252, 2599 (2d Cir. 2012) (quoting Shepard v.

United States, 544 U.S. 13, 16, 20 (2005)). The modified categorical approach

“helps effectuate the categorical analysis when a divisible statute, listing potential

offense elements in the alternative, renders opaque which element played a part in

the defendant’s conviction.” Descamps, 133 S. Ct. at 2283. It “thus acts not as an

exception, but instead as a tool. It retains the categorical approach’s central

feature: a focus on the elements, rather than the facts, of a crime.” Id. at 2285.

“The Government bears the burden of showing that, based on the[]

[Shepard] documents, the offense of conviction necessarily constituted a

qualifying offense . . . . Where these documents do not identify the offense of

conviction, [a court] must consider whether the ‘least culpable’ means of violating

the statute of conviction qualifies.” United States v. Rodriguez-Negrete, 772 F.3d

221, 225 (5th Cir. 2014) (citations omitted). See also United States v. Reyes, 691

F.3d 453, 458 (2d Cir. 2012) (“[T]he government must demonstrate that the

conviction ‘necessarily’ rested on facts identifying the conviction as one for a

‘crime of violence.’ . . . The problem here is that the government submitted no

evidence demonstrating that Reyes’s conviction for battery . . . necessarily rested

on anything but the slightest unwanted physical contact.”) (citation omitted);

Moncrieffe, 133 S. Ct. at 1684; Acosta, 470 F.3d at 135.

Assuming § 140.25 is divisible and thus subject to the modified categorical

approach, no Shepard documents have been proffered establishing that Campbell’s

attempt conviction rests on a subdivision that could qualify as a “violent felony.”

15

As such, his conviction is presumed to rest on the “‘least culpable’ means of

violating the statute.” Rodriguez-Negrete, 772 F.3d at 225.

Under New York law, a “person is guilty of an attempt to commit a crime

when, with intent to commit a crime, he engages in conduct which tends to effect

the commission of such crime.” N.Y. Penal Law § 110.10. Thus, the “least

culpable means” of attempting to commit a second-degree burglary is “engag[ing]

in conduct which tends to effect,” id., the entering of a “dwelling” with “intent to

commit a crime therein.” N.Y. Penal Law § 140.25(2). As set out above, that is

not a “violent felony.” See Forino; Flores; Hissin; Lipson; Chambers.

In sum, Campbell’s conviction for attempted New York burglary is not a

“violent felony.” Without that conviction, both of the other priors the PSR said

were “violent felonies” must indeed qualify. But neither one of them does.

2. New York Assault is Not a “Violent Felony”


convicted of New York Assault in the Second Degree. PSR ¶ 32. New York’s

second-degree assault statute has several subdivisions and has been amended many

times over the years, but at the time of Campbell’s offense it criminalized

“‘recklessly causing serious physical injury to another person by means of a . . .

dangerous instrument.’” People v. Bell, 490 N.Y.S.2d 402, 402 (App. Div. 1985)

(quoting N.Y. Penal Law § 120.05(4)). This subdivision is often used to prosecute

drunk drivers who seriously harm others. See Bell; People v. Carrington, 815

N.Y.S.2d 560 (App. Div. 2006); People v. Acton, 540 N.Y.S.2d 544 (App. Div.

1989); People v. Wilson, N.Y.S.2d 366 (App. Div. 1987).

16

In interpreting 18 U.S.C. § 16(a), which is worded nearly identically to

ACCA’s force clause, the Supreme Court has explained that the “key phrase in §

16(a) – the ‘use . . . of physical force against the person or property of another’ –

most naturally suggests a higher degree of intent than negligent or merely

accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). “Although Leocal

reserved the question whether a reckless application of force could constitute a

‘use’ of force, the Courts of Appeals have almost uniformly held that recklessness

is not sufficient.” United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014)

(citations omitted).

Specifically, the Fourth Circuit has squarely held that second-degree assault

under N.Y. Penal Law § 120.05(4) “does not contain an element that there be the

intentional employment of physical force against a person or thing, and thus is

beyond the scope of 18 U.S.C. § 16(a).” Garcia v. Gonzales, 455 F.3d 465, 468

(4th Cir. 2006). See also United States v. Portela, 469 F.3d 496, 499 (6th Cir.

2006) (“[A] crime requiring only recklessness does not qualify as a ‘crime of

violence’ under 18 U.S.C. § 16. . . . Portela’s conviction for reckless vehicular

assault is not a ‘crime of violence.’”); Oyebanji v. Gonzales, 418 F.3d 260, 264 (3d

Cir. 2005) (“The quintessential violent crimes . . . involve the intentional use of

actual or threatened force against another’s person . . . . Oyebanji’s crime

[vehicular homicide] . . . did not involve the intentional use of force but instead

required only recklessness.”) (Alito, J., for the Court).

17

Because N.Y. Penal Law § 120.05(4) does not require the intentional use of

physical force, second-degree assault is not a categorical “violent felony.”3

Assuming § 120.05 is divisible and thus subject to the modified categorical

approach, no Shepard documents have been proffered establishing that Campbell’s

assault conviction rests on a subdivision that could qualify as a “violent felony.”

As such, his conviction is presumed to rest on the “‘least culpable’ means of

violating the statute,” Rodriguez-Negrete, 772 F.3d at 225, namely “‘recklessly

causing serious physical injury to another person by means of a . . . dangerous

instrument.’” Bell, 490 N.Y.S.2d at 402 (quoting N.Y. Penal Law § 120.05(4)).

As set out above, that is not a “violent felony.” See Garcia; Portela; Oyebanji.

3. Attempted New York Robbery is Not a “Violent Felony”


convicted of Attempted New York Robbery in the Second Degree. PSR ¶ 30. The

robbery statute in effect when Campbell committed the offense reads:

A person is guilty of robbery in the second degree when he forcibly steals property and when: 1. He is aided by another person actually present; or

3 In United States v. Walker, 442 F.3d 787 (2d Cir. 2006), the Second Circuit held that a different subdivision of the second-degree assault statute, N.Y. Penal Law § 120.05(2), which criminalizes assault “[w]ith intent to cause physical injury,” is a “violent felony.” Id. at 788. The Court neither considered § 120.05(4) nor held that second-degree New York assault is a categorical “violent felony.” As discussed, it is not because some types of second-degree assault can be committed recklessly rather than intentionally.

18

2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

(a) Causes physical injury to any person who is not a participant

in the crime; or

(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

N.Y. Penal Law § 160.10 (1982).

“Essentially,” New York’s highest court has explained, “an attempt is an act

done with an intent to commit some other crime.” People v. Bracey, 41 N.Y.2d

296, 299 (1977). Not just any act will do, as “the defendant must have ‘engaged in

conduct that came “dangerously near” commission of the completed crime.’ The

‘dangerously near’ standard does not, however, mandate that the defendant take

‘the final step necessary’ to complete the offense.” People v. Naradzay, 11 N.Y.3d

460, 466 (2008) (citations omitted). Thus, defendants who steal their own property

with an eye to filing an insurance claim are guilty of attempted fraud even if they

never file a claim:

[D]efendants had planned a complex crime that necessarily had to proceed in several stages removed in time and space from one another. Thus, the fact pattern here is rather different from more typical attempts, where the would-be robber or burglar is apprehended on the premises, tools of the trade in hand. . . .

Unlike a burglar or robber on the premises, defendants may not have been physically within striking distance of success, yet in all but the most literal sense, they were. The steps they had already taken were more than substantial: they had secured insurance, arranged for shipment of the goods from Europe and storage in a particular New York City warehouse, and hired thieves who actually broke in and removed the goods.

19

People v. Mahboubian, 74 N.Y.2d 174, 192 (1989).

Likewise, someone who plots a “complex” rather than “typical” robbery by

methodically surveilling his target for weeks and devising a detailed plan – but is

arrested the night before he is to strike – is someone who “engaged in conduct that

came dangerously near commission of the completed crime,” Naradzay, 11 N.Y.3d

at 466, despite there being no “use, attempted use, or threatened use of physical

force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

Moreover, even if attempted robbery required “physical force,” it would not

be a “violent felony” because mere “physical force” is not enough.

In its 2010 Johnson decision, the Supreme Court held that ACCA’s

“‘physical force’ means violent force— that is, force capable of causing physical

pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140

(2010) (emphasis in original). The battery conviction at issue there thus wasn’t a

“violent felony” because it could be committed by “any intentional physical

contact, ‘no matter how slight,’” id. at 138 (emphasis in original; citation omitted),

rather than the requisite “violent force.” Id. at 140 (emphasis in original). “Even

by itself,” the Court explained, “the word ‘violent’ in [ACCA] connotes a

substantial degree of force.” Id. “When the adjective ‘violent’ is attached to the

noun ‘felony,’ its connotation of strong physical force is even clearer.” Id. The

Court then cited Black’s Law Dictionary, which defines “violent felony” as a

“‘crime characterized by extreme physical force, such as murder, forcible rape, and

assault and battery with a dangerous weapon.’” Id. at 140-41 (emphasis added).

In its 2014 Castleman decision, the Court further explained that “‘[h]itting,

20

slapping, shoving, grabbing, pinching, biting, [and] hair pulling’” are relatively

“[m]inor uses of force” that “may not constitute ‘violence’ in the generic sense.”

134 S. Ct. at 1411-12 (citation omitted). By way of additional example of non-

violent force, the Court said: “[I]n an opinion that we cited with approval in

Johnson, the Seventh Circuit noted that it was ‘hard to describe . . . as “violence”’

‘a squeeze of the arm [that] causes a bruise.’” Id. at 1412 (citation omitted).4

Though New York robbery involves “physical force upon another person,”

N.Y. Penal Law § 160.00 (1982), mere “physical force” is not enough to make

something a “violent felony.” The force must be “violent force.”

As two judges of the Eastern District of New York have recently held, “the

New York robbery statute does not require violent physical force.” United States

v. Moncrieffe, ___ F.Supp.3d ___, 2016 WL 913391, at *17 (E.D.N.Y. Mar. 10,

2016) (Weinstein, J.). “Although force is an element of [New York robbery], the

violent force required after [2010] Johnson is not. While ‘forcibly stealing

property’ will likely often entail the use of violent force, it is not a necessary

element of the crime.” United States v. Avitto, E.D.N.Y. No. 15-cr-265,

Sentencing on Mar. 14, 2016 (Ross, J.) (attached hereto as Exhibit B at 7).

4 The Court’s 2010 Johnson and Castleman decisions thus implicitly overruled the Second Circuit’s 1995 holding that attempted New York robbery is a “violent felony” because it involves “physical force.” See United States v. Brown, 52 F.3d 415, 425-26 (2d Cir. 1995). As the Supreme Court has explained, mere “physical force” is not the requisite “violent force.” See United States v. Allah, 130 F.3d 33, 38 (2d Cir. 1997) (“This court is bound by a decision of a prior panel unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc.”).

21

New York robbery – whatever its degree – can indeed be committed without

“violent force.” For example, someone commits it if he and his accomplices form

a “human wall that block[s] the victim’s path as the victim attempt[s] to pursue

someone who had picked his pocket.” People v. Bennett, 631 N.Y.S.2d 834, 834

(App. Div. 1995). “The requirement that a robbery involve the use, or the threat of

immediate use, of physical force does not mean that a weapon must be used or

displayed or that the victim must be physically injured or touched.” Id. (citations

omitted). See also People v. Patton, 585 N.Y.S.2d 431, 431 (App. Div. 1992) (“By

blocking the victim’s passage, defendant aided in codefendant’s retention of the

property, and thereby participated in the robbery.”).

Similarly, robbery occurs if the defendant “bumped his unidentified victim,

took money, and fled while another forcibly blocked the victim’s pursuit.” People

v. Lee, 602 N.Y.S.2d 138, 139 (App. Div. 1993). See also People v. Bennett, 592

N.Y.S.2d 918, 918 (App. Div. 1993) (“The evidence at trial that undercover police

officers observed the codefendant pick the victim’s pocket after which defendant

shoved the victim to prevent pursuit was sufficient to establish the element of

force.”) (citations omitted).

In the same vein, someone commits robbery if he takes property and engages

in a brief tug-of-war over it: “Proof that the store clerk grabbed the hand in which

defendant was holding the money and the two tugged at each other until

defendant’s hand slipped out of the glove holding the money was sufficient to

prove that defendant used physical force for the purpose of overcoming the

victim’s resistance to the taking.” People v. Safon, 560 N.Y.S.2d 552, 552 (App.

22

Div. 1990) (citations omitted). See also People v. Brown, 663 N.Y.S.2d 539, 540

(App. Div. 1997) (“[D]efendant attempted to push the complainant away with his

arm, at which point a struggle ensued and defendant dropped the [cassette] tapes

during the struggle. As such, ample evidence exists to support the jury’s finding

that defendant used force.”).

Whether it’s forming a human wall, bumping the victim, or engaging in a

brief tug-of-war over the property, robbery can be committed in New York with

less than “violent force.” Johnson, 559 U.S. at 140 (emphasis in original).

The same is true of robbery in Puerto Rico and the District of Columbia, as

the First and D.C. Circuits have respectively concluded. See United States v.

Castro-Vazquez, 802 F.3d 28, 37 (1st Cir. 2015) (Puerto Rico robbery can be

committed by “the slightest use of force,” which is not “‘violent force— that is,

force capable of causing physical pain or injury to another person.’”) (citing

Johnson, 559 U.S. at 140); In re Sealed Case, 548 F.3d 1085, 1090 (D.C. Cir.

2008) (“[N]o one doubts that under the D.C. Code the ‘force and violence’

language could have been satisfied by a minimal level of force that would not

qualify the offense as a crime of violence.”) (citation omitted).

As relevant here, second-degree New York robbery “aided by another

person actually present,” in violation of N.Y. Penal Law § 160.10(1), can also be

committed without “violent force.” See People v. Barksdale, 858 N.Y.S.2d 5, 6-7

(App. Div. 2008) (affirming § 160.10(1) conviction where defendant “push[ed] the

employee out of the way as he attempted to leave the store with stolen

merchandise” and codefendant “cas[ed] each store, distract[ed] employees while

23

defendant entered the pharmacy area, and fle[d] with him after the theft”); People

v. Durden, 775 N.Y.S.2d 248, 248-49 (App. Div. 2004) (affirming § 160.10(1)

conviction where defendant “struggled with the victim while maintaining

possession of the stolen briefcase” and “was aided by ‘another person actually

present’”); People v. Washington, 728 N.Y.S.2d 48, 49 (App. Div. 2001)

(affirming § 160.10(1) conviction where defendant “snatched [victim’s] purse and

ran back to the getaway car” driven by codefendant, who “was ‘ready, willing or

able’ to assist the defendant so as to satisfy the aggravating element of being ‘aided

by another person actually present’”); People v. Moses, 556 N.Y.S.2d 890, 891-92

(App. Div. 1990) (affirming § 160.10(1) conviction where defendant “was in plain

view of the victim of the robbery and was in a position to aid in the forcible taking

of the property” and “victim’s resistance to the taking, in this case, was clearly

overcome in the struggle by the victim to retain possession of his wallet”).

In sum, even if attempted New York robbery required the use, attempted

use, or threatened use of “physical force,” it wouldn’t be a “violent felony” as

“physical force” is not necessarily “violent force.” Johnson, 559 U.S. at 140.

It is only under ACCA’s residual clause that an attempted violation of N.Y.

Penal Law § 160.10 could categorically qualify as a “violent felony.” And as the

Supreme Court has held, ACCA’s residual clause is “unconstitutionally vague.”

Johnson, 135 S. Ct. at 2557. Attempted New York robbery in the second degree is

therefore not a categorical “violent felony.”

As with Campbell’s attempted burglary and assault convictions, no Shepard

documents have been proffered establishing that the attempted robbery conviction

24

rests on a subdivision that could qualify as a “violent felony.” The conviction is

thus presumed to rest on the “‘least culpable’ means of violating the statute,”

Rodriguez-Negrete, 772 F.3d at 225 (citation omitted), namely “engag[ing] in

conduct which tends to effect,” N.Y. Penal Law § 110.10, a robbery “aided by

another person actually present.” N.Y. Penal Law § 160.10(1). As set out above,

that is not a “violent felony.” See Bennett; Patton; Lee; Safon; Brown; Barksdale;

Durden; Washington; Moses.

* * *

Campbell does not have the three prior convictions needed to authorize

ACCA’s 15-year mandatory minimum. His offense of conviction carries a 10-year

statutory maximum, and he has already served more time than that.

CONCLUSION

The Court should grant Campbell’s motion, vacate his 15-year sentence,

resentence him to 10 years or less and order his release.

Respectfully submitted, FEDERAL DEFENDERS OF NEW YORK DATED: March 22, 2016 ___________________________________ MATTHEW B. LARSEN Assistant Federal Defender 52 Duane Street, 10th Floor New York, NY 10007 Tel.: (212) 417-8725 Email: [email protected]

EXHIBIT A

1 64SVCAMS Sentence

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

2 ------------------------------x

3 UNITED STATES OF AMERICA,

4 v. 04 CR 0903 (GEL)

5 ALTON CAMPBELL,

6 Defendant.

7 ------------------------------x

8 New York, N.Y. April 28, 2006

9 1:30 p.m.

10 Before:

11 HON. GERARD E. LYNCH,

12 District Judge

13

14 APPEARANCES

15 MICHAEL J. GARCIA United States Attorney for the

16 Southern District of New York MICHAEL FARBIARZ

17 Assistant United States Attorney

18 HENRY STEINGLASS Attorney for Defendant

19

20

21

22

23

24

25

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

2 64SVCAMS Sentence 1 2 THE CLERK: In the matter of the United States v. 3 Alton Campbell. Counsel, please state your name for the 4 record. 5 MR. FARBIARZ: Michael Farbiarz for the United States. 6 Good afternoon, your Honor. 7 THE COURT: Good afternoon, Mr. Farbiarz. 8 MR. STEINGLASS: Henry Steinglass for the defense. 9 Good afternoon, your Honor. 10 THE COURT: Good afternoon, Mr. Steinglass. I don't 11 know what the confusion was about this scheduling. I thought 12 it had been set at the time of the last appearance for 2 13 o'clock, but it seems that there were mixed messages sent or 14 received. And I'm happy to do it when it can be done. And 15 since Mr. Steinglass was able to get here earlier, and I 16 appreciate his accommodating the Court and Mr. Farbiarz by 17 coming over here on short notice during what's probably his 18 lunch hour, but I think we can now proceed. All right. 19 MR. STEINGLASS: Yes, your Honor. Thank you. And, of 20 course, I don't usually have an hour for lunch, but I might be 21 just a little, if not verbiose (ph), verbal than otherwise. 22 But I do believe we can get through all the issues and do it 23 quickly. And I appreciate the court personnel and the reporter 24 being available at this time. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

3 64SVCAMS Sentence 1 MR. STEINGLASS: And, your Honor -- 2 THE COURT: At any rate, we're here to impose sentence 3 in this case. And I've reviewed the presentence report in the 4 matter. I don't believe that there were any written 5 submissions from either side with respect to the sentence, is 6 that correct? 7 MR. FARBIARZ: None from the government. 8 MR. STEINGLASS: And none from the defense. I do have 9 some comments, though, your Honor. 10 THE COURT: Okay. Well, before we get there, I want 11 to ask Mr. Steinglass, have you reviewed the presentence report 12 and discussed it with your client? 13 MR. STEINGLASS: Yes. Now, the latest version that 14 came in by e-mail yesterday, even the prior version, addendum, 15 although I mailed the prior one, didn't arrive in time. So 16 I've gone over it verbally, the latest one, with my client. 17 THE COURT: Okay. I think there were relatively minor 18 changes in the second addendum that came in on the 27th, which 19 is yesterday. And I don't think they affect the guideline 20 calculation at any rate, is that right? 21 MR. STEINGLASS: Well, actually, they -- 22 THE COURT: They affect the -- 23 MR. STEINGLASS: Methodology. 24 THE COURT: The methodology. But the bottom line is 25 the same. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

4 64SVCAMS Sentence 1 MR. STEINGLASS: Exactly. But when your Honor's 2 ready, I have some comments on the addendum. 3 THE COURT: Okay. We'll get there. Mr. Campbell, 4 have you had a chance to review the presentence report and 5 discuss it with Mr. Steinglass? 6 THE DEFENDANT: Yes, sir. 7 THE COURT: Okay. And have you gone over with him any 8 mistakes that there might have been in the report that you saw, 9 or anything else that should be taken up with the Court? 10 THE DEFENDANT: Yes, sir. 11 THE COURT: Okay. Mr. Farbiarz, has the government 12 reviewed the PSR? 13 MR. FARBIARZ: Yes, your Honor. 14 THE COURT: First of all, are there any objections to 15 the report just regarding factual issues, then we'll get to the 16 guidelines and other matters. 17 MR. FARBIARZ: Nothing on the facts to comment on the 18 calculations, your Honor. 19 THE COURT: Okay. Mr. Steinglass, any factual issues? 20 MR. STEINGLASS: Well, not really, your Honor. When I 21 do get to my comments, I'm not sure if some of them might be 22 slightly factual. 23 THE COURT: Okay. If there are things that just need 24 to be corrected in the report that are just simple mistakes 25 about facts, that's one thing. I just want to get it out of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

5 64SVCAMS Sentence 1 the way in case there's anything of that matter. But, you 2 know, we can take them up in due course. And I don't want to 3 be overly schematic about dividing it up. 4 With respect to the guidelines, of course the 5 guidelines are no longer mandatory, but we are still required 6 to accurately calculate the guideline sentencing range to 7 understand what the recommended sentence is. And so are there 8 issues with respect to the guideline calculation? 9 MR. FARBIARZ: I have a very discrete one, your Honor. 10 THE COURT: You do have a discrete one? 11 MR. FARBIARZ: Very much so. 12 THE COURT: Okay. What is that? 13 MR. FARBIARZ: Our base offense level is 33. The PSR 14 takes it down two to 31. I think it probably should take it 15 down one. I guess technically it's on the government's motion, 16 that third point for acceptance. But that third point is not 17 subtracted in the PSR. And that takes us down to 30, I 18 believe, and 135 to 168 months. 19 Although there was an affidavit submitted here by the 20 defendant in connection with the suppression motion, it's not 21 the government's position that that was a perjurious affidavit, 22 shouldn't affect acceptance. So I think the proper 23 guideline-adjusted offense level is 30, and we're at 135 to 24 168. 25 THE COURT: Okay. So, in other words, the probation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

6 64SVCAMS Sentence 1 department only gave two points for acceptance of 2 responsibility? 3 MR. FARBIARZ: That's right. 4 THE COURT: You agree there should be three? 5 MR. FARBIARZ: Absolutely, your Honor. 6 THE COURT: But, of course, none of this matters 7 because there's at least, from the government's view, I don't 8 know if Mr. Steinglass agrees, but the probation department 9 calculates and the government maintains there's a mandatory 10 minimum sentence of 180 months. 11 MR. FARBIARZ: Right. I don't think it will matter in 12 that sense. But just for the guidelines calculations, I think 13 paragraph 24 leaves out one point for adjustment. 14 THE COURT: Okay. I think I understand that. Okay. 15 Mr. Steinglass, anything on your side with respect to 16 guidelines and legal issues of that sort? 17 MR. STEINGLASS: Yes, your Honor. I don't think any 18 of this, again, will change the ultimate mandatory minimum by 19 statute. One of this is just really a typo. But in the latest 20 version at paragraph 17, and I did try to reach the probation 21 officer on this earlier today, but she wasn't available. The 22 guideline base offense level is 24. But in the text -- 23 THE COURT: In the text it says 26. 24 MR. STEINGLASS: Right. 25 THE COURT: I think that's because this is a change, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

7 64SVCAMS Sentence 1 and I think the probation officer just didn't make the change 2 in the text that she did make in the actual calculation. 3 MR. STEINGLASS: I assume that's the case, your Honor. 4 THE COURT: Okay. So that should say in paragraph 17, 5 the second line, the last number should be 24 rather than 26 on 6 that line. Okay. And then the other -- I guess just to say 7 this very explicitly, is that in paragraph 24, the reduction 8 should be a minus three and, therefore, the total offense level 9 is 30. All right. I suppose those corrections ought to be 10 made in the presentence report. 11 Well, then, based on those observations and my 12 independent evaluation of the guidelines and the arguments of 13 the parties -- 14 MR. STEINGLASS: Excuse me, your Honor. I apologize 15 for interrupting. I did have some other brief comments. 16 THE COURT: Well, with respect to the guidelines or 17 respect to what the sentence should be or -- 18 MR. STEINGLASS: Both. 19 THE COURT: Both. Okay. Well, tell me about the 20 guidelines so that we can get that behind us. 21 MR. STEINGLASS: Yes, your Honor. Staying with the 22 guidelines. In the addendum, in the last two paragraphs, what 23 is reflected there is that I raise a question, as distinguished 24 from really contending, about the guideline calculation that 25 we've just gone over, the base level of 24. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

8 64SVCAMS Sentence 1 Now, I recognize that all this doesn't make any 2 difference, even for the guideline calculation, because there's 3 an override. It gets us to the level 33, and then down to 30, 4 as your Honor just went over. 5 But the problem here, at least for accuracy, is that 6 the probation officer used the current guideline book. The law 7 has changed, the guidelines have changed since the offense in 8 August of 2004 in a way that is less favorable to Mr. Campbell. 9 And so the reduction from 26 to 24 at the base level really 10 should be, because we should be using the November 2003 book. 11 So I don't disagree with the numbers, and I'm not 12 entirely sure of my reading of the change in law whether 13 there's a repeal of what there was before, but I wanted to draw 14 that to your Honor's attention. 15 And, specifically, the current law, the guideline says 16 you get to level 26 if you're, for example, under whatever it 17 is 18 U.S.C., I think it's 5845(a). And 5845(a) has a list of 18 what I call aggravated firearms, this is my own term, and a 19 short barrel shotgun, etc. But in that list there's something 20 called other weapons as defined in a subdivision E. 21 Now, subdivision E picks up, as I see it, any weapon 22 capable of firing a projectile. However, in the bottom it 23 exempts a pistol or revolver that has a rifle board. And, of 24 course, I'm not any expert, but my recollection is that lots or 25 most pistols and revolvers have rifle boards, and that's how it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

9 64SVCAMS Sentence 1 relates to ballistics comparisons, for example. 2 So it's a long-winded say of saying I think even under 3 the current law it should be level 24. But under the prior 4 structure, which didn't have that structure, it, I think, just 5 defined it, the firearm more directly. You get to level 24 6 also. And I apologize for the length of the -- 7 THE COURT: Oh, okay. So what you're saying is the 8 probation officer reached level 24 by a correct application of 9 the 2005 guidelines; but, that, in fact, this offense should be 10 judged against 2003 guidelines where the level would be 24, 11 anyway, but for a slightly different reason. 12 MR. STEINGLASS: Essentially, your Honor. And, 13 actually, when I discussed this with the probation officer, I 14 was hoping that their computer system would to try to plug in 15 the 2003 and just give us that result. And they gave us the 16 result, but without, I think, the details. 17 THE COURT: But I guess the question is, is there any 18 particular purpose in modifying the probation report to reflect 19 the correct analysis, given two things: 20 Number one, since the ultimate bottom line is -- well, 21 the ultimate intermediate bottom line is 24 under the 2005 22 guidelines, and is also 24 under the 2003 guidelines. 23 And, secondly, since the ultimate bottom line is level 24 33 under either calculation, it seems to me that the net result 25 of applying the current guideline book is not to the detriment SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

10 64SVCAMS Sentence 1 of Mr. Campbell, since if we did the correct calculation under 2 the November 2003 guidelines, we would wind up in exactly the 3 same place. 4 And given that, it's not my understanding that it is 5 error to use the current version of the guidelines, because 6 it's only error to use the current version of the guidelines if 7 the net result of doing so is an ex post facto disadvantaging 8 of the defendant. 9 If you would have wound up in the same place under the 10 old guidelines, I think that even technically the correct 11 analysis is the one here, which is the one you apply today's 12 guidelines. If after both checking today's and the ones 13 applicable at the time of the defense, there's no net 14 disadvantage to the defendant. 15 MR. STEINGLASS: I concur, your Honor. I have no 16 problem with leaving it the way it is. But I did want to draw 17 this to your Honor's attention. 18 THE COURT: Well, I appreciate it. I very much 19 appreciate the nuances involved in the need to be accurate. 20 It's just that I think that when we get to the end of the day, 21 it's not just something that doesn't matter anyway for a 22 variety of reasons. It's something that I think the probation 23 officer winds up being correct to have applied the 2005 24 guidelines, at least once the second addendum is added and the 25 correct analysis under the 2005 guidelines is applied. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

11 64SVCAMS Sentence 1 And either way, I think what we wind up with, and 2 correct me if I'm wrong, is that the offense level is 30, the 3 criminal history category, which is one step lower than the 4 probation department recommended, the criminal history category 5 is four, which is what they did calculate the guideline range 6 is, 135 to 168 months. But the statutory mandatory minimum is 7 a 180, anyway. I think that's the legal structure within which 8 I have to operate. 9 And unless there are further objections to that, then 10 I think I'm prepared to hear from all sides about any issues 11 that bear on what sentence I should impose, starting with 12 Mr. Steinglass. 13 MR. STEINGLASS: Just quickly, and still on the 14 details of the presentence report. Although, again, I don't 15 think these matter. 16 The guideline calculation, in the addendum, on page 17 16, there's a statement. The first one is I stated that the 18 defendant does not have a detainer pending. What I actually 19 said was I didn't think there was a detainer except perhaps 20 from the parallel New York case, because my client was first 21 arrested and charged in state court, and then brought over here 22 for this proceeding. 23 My client had told me there was some kind of detainer 24 perhaps listed somewhere, and somebody had it somewhere in the 25 system. And if it's still there, I guess you'll have to deal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

12 64SVCAMS Sentence 1 with it later. So perhaps I clarified that. 2 I think the reference to paragraph 33 is basically 3 accurate in that my client should know and does know that he 4 did those two particular sentences concurrently. It may be 5 technicality, especially in this case, your Honor. But there 6 are several references in the report at paragraphs -- starting 7 at paragraphs 33, for example, and then proceeding on after 8 each of the offenses, even actually paragraph 31, which rely on 9 information from an arrest report. And I usually say that in 10 my experience, and I having had zero experience in these arrest 11 reports, it's not a particularly reliable source of 12 information. 13 THE COURT: Well, that's fair enough. And for the 14 most part, I agree with you. I don't say that I would never 15 consider information contained in a probation department report 16 which cites to an arrest report as a way of flushing out the 17 details of prior crimes. But in most cases it seems to me that 18 it is more than sufficient for the Court's purposes to refer to 19 what the actual convictions were and to disregard details 20 culled from arrest reports which might or might not be 21 ultimately accurate. And in this case in particular, it 22 doesn't matter. 23 There are very drastic consequences from the offenses 24 of conviction themselves. And I certainly would have no 25 intention of enhancing that sentence any further based on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

13 64SVCAMS Sentence 1 information in arrest reports. When this comes up though, I 2 always make the point that I don't strike that information. It 3 is accurate as far as it goes, which is to say the probation 4 department is accurately, I assume, no one's challenging this, 5 quoting what the police reports said. And that information, I 6 think, is appropriately contained in the presentence report, 7 and it may or may not be useful information to the Bureau of 8 Prisons, but it's not particularly useful information to me, 9 and I will disregard those details. In fact, I have no 10 particular recollection of what they were in this particular 11 case because it's just not important to me. 12 MR. STEINGLASS: Thank you, your Honor. Moving onto 13 perhaps something more significant. With reference to the 14 mandatory minimum which is ultimately going to control the 15 sentence, there is a line of cases, as I understand, which says 16 that a defendant has a right to individualized sentencing. And 17 it's been said by one district judge in particular, Judge Webb, 18 in a case called U.S. v. Dyck, D-y-c-k, at 287 Fed. 2d -- Fed. 19 Supp. 2d at page 1021. In collecting cases there, that was 20 Judge Webb's view, it's a minority view, he says. But when I 21 look at the possible application, even if that were the law, or 22 become law, in this case the guideline range is not that 23 much -- is not that far from the mandatory minimum, the 24 statutory minimum, which would strain the argument even 25 further. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

14 64SVCAMS Sentence 1 But I did want to at least raise the point with your 2 Honor in the event -- because we do intend to appeal, of 3 course, on those other issues, the congress clause, 4 jurisdiction, second amendment, they were all developed 5 earlier. If there's some development law, I'd like to have 6 this point -- 7 THE COURT: Absolutely. I think it's very appropriate 8 to raise. I think it's a legitimate argument, and there is 9 some sort of due process violation in extreme mandatory 10 sentencing. 11 I suppose it's also possible to make an 8th Amendment 12 argument regarding the mandatory minimum sentence. I think 13 those are appropriate arguments to be raised, and I've 14 considered them. I have to reject them on the strength of 15 existing law. 16 First, I think it is clear under existing law that 17 there is not a constitutional right to individualized 18 sentencing. Individualized sentencing has been the norm in 19 this country -- or I guess I have the wrong verb tense, was the 20 norm in this country for some hundred years, and we got very 21 used to it. And some of us who grew up in that era think that 22 that is a better policy, and became so used to it that we came 23 to think it was embedded in the law. But even during that 24 period there were instances of mandatory sentencing statutes. 25 Before that they were very commonly mandatory sentencing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

15 64SVCAMS Sentence 1 statutes. The death penalty itself was mandatory for many 2 offenses at the time the Constitution and the Bill of Rights 3 were adopted. It wasn't until 1831, I believe, or 1838 even 4 that one of our states, Tennessee, first adopted a 5 discretionary death sentence for the crime of murder. So I 6 think it's very hard to make that case, and I don't think that 7 existing law permits it. 8 And as to the 8th amendment argument, the supreme 9 court has been very resistant to finding jail sentences 10 disproportionate to conduct, particularly in the case of 11 recidivist statutes, and even life sentences have been upheld 12 based on, I don't want to say not serious crimes, but based on 13 crimes that don't in most cases carry life sentences, and based 14 on three-strikes kinds of situations for what are, indeed, 15 sometimes very minor crimes in the case of recidivists. 16 So I don't think that either 8th Amendment or due 17 process argument is supported by current law. But you do right 18 by your client to preserve the argument and make it to higher 19 courts that have more ability to revisit those subjects. 20 MR. STEINGLASS: Well, I thank your Honor for that 21 short and learned summary of the situation, especially because 22 I had not raised this in writing ahead of time, and for which I 23 apologize. And in light of your Honor's summary, I would 24 adopt, to the extent it's not frivolous, an 8th Amendment 25 equivalent usually or make an 8th Amendment cruel and unusual SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

16 64SVCAMS Sentence 1 argument. I felt very restrained about that, in particular 2 reading Judge Castel's opinion in U.S. v. Angelos, a 2004 case 3 with the -- I think the 55-year mandatory minimum. 4 THE COURT: Well, as I say, I mean I don't think 5 it's -- you know, "frivolous" is a word I don't always like to 6 throw around. It may be frivolous under existing law, but that 7 doesn't mean that there's not a legitimate argument that 8 existing law should change. That's just that this court isn't 9 in a position to change it. 10 Instead of fencing around about it, let me be very 11 clear. I think that the mandatory sentence in this case is a 12 harsh one. Mr. Campbell's record is very serious. On the 13 other hand, almost all of the serious crimes that we're talking 14 about, in fact, all three of the violent crimes that are 15 related to his door had been committed by the time he's 21 16 years old. The last of them was 20 years ago. There's, I 17 think it's fair to say, only one serious crime on his record 18 since then, and even that occurred in 1992, which is almost 15 19 years ago. Now, that doesn't mean he has an admirable record. 20 He's managed to get himself in all sorts of trouble in his 21 life. But the 15-year sentence strikes me as very harsh. If I 22 were freed of the mandatory minimum, I believe I would impose a 23 lower sentence than that. But, again, that's not to give the 24 man a medal. It wouldn't be that much lower. 25 And in light of the mandatory minimum sentence, I have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

17 64SVCAMS Sentence 1 thought very deeply about exactly what that sentence would be 2 about, whether it would be about what the guidelines correctly 3 calculated, recommend, or slightly lower or slightly higher. I 4 haven't thought that through, because I don't have to. 5 But what I do say is even if the constitutional law 6 were to change and give the Court more leeway to evaluate the 7 proportionality of statutes, it's one thing to say I think 15 8 years is harsh, given Mr. Campbell's bad, but not recently 9 quite so bad, record. It's another thing to say that that's 10 unconstitutional in any way, shape or form. 11 I think reasonable people could come to the conclusion 12 that someone with the record that Mr. Campbell has should be 13 sentenced to 15 years of imprisonment, if that's what congress 14 has decided to do. I don't think that even if the law were 15 considerably more favorable to judicial review of these 16 statutes that I would find this unconstitutional. I wouldn't 17 vote for it if I were in congress, but I'm not. And I have to 18 follow the law laid down, so long as it is constitutional. And 19 I think this is constitutional, both under existing law and 20 even under a considerably more liberal interpretation of both 21 of those provisions, unless one were to conclude that any 22 mandatory sentence is unconstitutional under the due process 23 clause, which I don't think is a very reasonable position. But 24 all of that is kind of theoretical. 25 I think we are here in a position where there's a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

18 64SVCAMS Sentence 1 mandatory minimum sentence of 15 years. I have no inclination, 2 I'll say right out front, to give any higher sentence than 3 that. So I don't know that there's that much to argue about. 4 But if there is anything that either Mr. Steinglass or the 5 government wants to say on that subject, I'll certainly hear 6 it. 7 MR. STEINGLASS: Well, I have just a few minor things 8 really just to finish up, your Honor. Again, I appreciate your 9 Honor's expressing -- your summarizing the situation there. 10 With respect to the prior felonies, the one in '92, 11 the drug felony, we stipulated in the bench trial that it was a 12 serious drug felony, and my client recently asked me about 13 that. And when I came over here, I hadn't cross-checked it 14 against state law. 15 The definition, the pertinent definition, for a state 16 drug felon, would be -- a serious drug offense is -- 17 essentially, it's got to have a maximum of ten or more years. 18 And I'm not sure this one does. Doesn't make any difference, 19 because the other three, which is the violent felonies, would 20 be enough to trigger the mandatory minimum of 15 years. But I 21 do want to raise that problem and apologize for not completing 22 the -- leaving a gap there as far as the information goes. 23 Next is that a short period of time, about 15 days, that my 24 client -- one second. 25 (Pause) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

19 64SVCAMS Sentence 1 MR. STEINGLASS: I withdraw that point, your Honor. 2 My client has in the past raised with me the question 3 about getting information for -- about the underlying records 4 that led to these state court felonies. And I think I actually 5 had mentioned this some months ago, that I was trying to get 6 this information. I requested somebody, and they were kind 7 enough to provide some of these records. They are in no way 8 complete. 9 And I told my client that I wasn't at all sure that it 10 was part of my CJA assignment here to gather those records and 11 review them to -- as to whether there could be any conceivable 12 challenge in state court post conviction to those felonies. 13 And I was also told it's my understanding there isn't a 14 provision under New York law for assignment of counsel for post 15 conviction posture. 16 From what I know of those priors, I fit them into my 17 experience to see if there was any possible ground for setting 18 aside. I would doubt that there is. One of them was a trial 19 conviction, presumably it was appealed, and probably even less 20 basis now after all these years to even look for any ground, 21 but I couldn't rule it out. And I've told them that, and I 22 wanted to indicate where that stood to your Honor. 23 And just the last thing, your Honor, is my client is 24 hoping that your Honor would recommend to the Bureau of Prisons 25 that he serve his sentence as close as possible to the New York SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

20 64SVCAMS Sentence 1 City metropolitan area, for example, Otisville, because he has 2 family here. 3 THE COURT: Okay. Thank you. Mr. Farbiarz, do you 4 have anything from the government? 5 MR. FARBIARZ: Your Honor, very briefly. 6 As your Honor knows, the mandatory minimum is 7 triggered by the stipulation, which includes a stipulation that 8 the four of the underlying felonies, three are violent felonies 9 under the meaning of 924(e). One is a serious drug offense 10 within 924(e). I know of no reason why there might be a 11 collateral challenge to these quite old state convictions. 12 THE COURT: This isn't the place to have them, anyway. 13 If there is, that's to be done in the state court. 14 MR. FARBIARZ: That was the last thing I was going to 15 say, your Honor. Thank you. 16 THE COURT: All right. Or I suppose in federal court 17 via habeas corpus, although the statute of limitations 18 presumably precludes that. But I don't know what equitable 19 tolling there might be one way or the other in a separate 20 proceeding, not in this proceeding is the point. There's not a 21 collateral attack available on those convictions here. 22 Mr. Campbell, is there anything you wish to say before 23 sentence is imposed? 24 THE DEFENDANT: No, sir. I believe everything has 25 been said already. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

21 64SVCAMS Sentence 1 THE COURT: Okay. Thank you, sir. Very little for me 2 to say. The law gives me little discretion, gives me only the 3 discretion to impose a sentence of greater than 15 years. As 4 I've already indicated, I think 15 years is an extremely 5 serious sentence. 6 Now, I have to say there's very little I can say 7 favorable about your record, but it's, and I've said it 8 already, that the crimes that trigger this extraordinary 9 penalty, were, for the most part, committed a long time ago. 10 The narcotics crime was in 1992; the violent felonies more than 11 20 years ago. 12 On the other hand, the fact is you've been in prison 13 for most of that period on various other charges, even if they 14 are not quite as serious as the ones that trigger this penalty. 15 But the bottom line is, before this arrest, you've been out of 16 jail for about four years without getting convicted of 17 anything, which, in light of your career, is something of an 18 upswing. 19 But whatever the situation is, the fact is that 20 someone with your record should not be in possession of any 21 firearm, is legally prohibited from being in possession of any 22 firearm, and faces an extraordinary penalty for doing so. I 23 think that would warrant a very severe sentence. This sentence 24 is extremely severe, but it is the lawful sentence for your 25 crime. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

22 64SVCAMS Sentence 1 Accordingly, it is the judgment of the Court that you 2 be committed to the custody of the Bureau of Prisons for 180 3 months, to be followed by three years of supervised release. 4 All of the standard and mandatory conditions of supervised 5 release will apply, except that the standard drug testing 6 condition is suspended and replaced by a special condition of 7 drug treatment. 8 There will also be a special condition of supervised 9 release that you submit your person, residence, place of 10 business, vehicle, or other premises to search by the probation 11 department whenever the probation officer has a reasonable 12 suspicion that contraband or evidence of a supervised release 13 violation may be found. 14 There will be no fine, because the probation 15 department reports that you are unable to pay one, except for 16 the mandatory $100 special assessment, which must be imposed by 17 law. 18 The judgment will reflect my recommendation to the 19 Bureau of Prisons that you be incarcerated as close as possible 20 to the New York metropolitan area, consistent with the 21 appropriate security designation. 22 I don't make a practice of recommending particular 23 institutions, because I don't know enough about the particular 24 institutions and their programs and their various security 25 levels to know what is an appropriate designation as far as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

23 64SVCAMS Sentence 1 particular place. 2 But I do think that it is an important policy that 3 defendants, prisoners, be incarcerated at a place where they 4 can be visited by friends and family with as little 5 inconvenience as possible. And, therefore, that is my 6 recommendation, and the judgment will reflect it. 7 Of course, the Bureau of Prisons is not bound by that. 8 They'll do what they do. But I understand they do take such 9 recommendations into account. That is the sentence of the 10 Court. 11 You have a right to appeal from your conviction, 12 including to appeal the sentence imposed, except to whatever 13 extent you may have validly waived that right pursuant to a 14 plea agreement. And even if you have in any way purported to 15 waive the right to appeal, I don't think he has -- right? 16 There's no agreement here. 17 MR. FARBIARZ: No such waiver at all. 18 THE COURT: Okay. So there is no waiver at all. So 19 you have an absolute right to appeal the conviction and 20 sentence. The only stipulation on that is it has to be done 21 quick. There's a short time limit after the filing of the 22 judgment, so I strongly advise you to consult with 23 Mr. Steinglass right away, since he's already indicated, I 24 believe, that you do intend to appeal, a notice should be filed 25 promptly. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

24 64SVCAMS Sentence 1 MR. STEINGLASS: Yes, your Honor. I've already talked 2 to Mr. Campbell, and I will ensure that a notice of appeal is 3 filed promptly within the ten-day limit. 4 THE COURT: Very good. And I direct that a complete 5 corrected copy of the presentence report be prepared for the 6 Bureau of Prisons and the sentencing commission; that counsel 7 on appeal have access to the report; and that the clerk prepare 8 the judgment, and see to sending the required documentation to 9 the sentencing commission. 10 I don't think there are any underlying charges or 11 anything else. 12 MR. FARBIARZ: No, your Honor. 13 THE COURT: All right. Then I think we're at an end. 14 Good luck to you, Mr. Campbell. 15 MR. STEINGLASS: Thank you, your Honor. 16 THE COURT: Thank you, Mr. Steinglass. 17 * * * 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

EXHIBIT B

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Frederick Guerino, CSROfficial Court Reporter

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - XUNITED STATES OF AMERICA,

-against-

SCOTT AVITTO,

Defendant.

::::::::::::::::

CR-15-265 (ARR)

United States CourthouseBrooklyn, New York

Monday, March 14, 20162:30 p.m.

- - - - - - - - - - - - - - X

TRANSCRIPT OF CRIMINAL CAUSE FOR SENTENCINGBEFORE THE HONORABLE ALLYNE R. ROSS

UNITED STATES SENIOR DISTRICT COURT JUDGE

A P P E A R A N C E S:

For the Government: ROBERT L. CAPERS, ESQ.United States AttorneyBY: AMEET KABRAWALA, ESQ.

Assistant United States Attorney

For the Defendant: FEDERAL DEFENDERSBY: MICHAEL WEIL, ESQ.

UNITED STATES PROBATION DEPARTMENTBY: ANGELICA DENIZ, USPO

Court Reporter: FREDERICK GUERINO, CSROfficial Court ReporterTelephone: (718) 613-2503E-mail: [email protected]

Proceedings recorded by computerized stenography. Transcriptproduced by Computer-aided Transcription.

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THE COURT CLERK: United States of America v.

Scott Avitto, docket number CR-15-265.

Counsel, please state your appearances for the

record.

MR. KABRAWALA: Good afternoon, Judge.

Ameet Kabrawala for the United States.

THE PROBATION OFFICER: Good afternoon, your

Honor.

Angelica Deniz from the United States Probation.

MR. WEIL: Good afternoon, your Honor.

Federal Defenders by Michael Weil.

THE COURT: Good afternoon.

The initial issue with respect to the criminal act

has been fully briefed, I believe. So unless anybody has

anything further they want to say, I'm prepared to address

it.

MR. KABRAWALA: We received the submission this

morning, which we've had a chance to --

THE COURT: I haven't read it.

MR. KABRAWALA: It is 50 pages long.

THE COURT: But I know what it says in general.

MR. WEIL: And I think the relevant portion is

just a couple of pages, your Honor.

THE COURT: I don't think you will find that I

need to read it.

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MR. WEIL: All right.

THE COURT: The parties dispute whether Mr. Avitto

is a career offender under 4B1.1 of the United States

Sentencing Guidelines. Under this section, a defendant is a

career offender, if the defendant was at least 18 years old

at the time of the offense; the instant offense of

conviction is a felony, that is, either a crime of violence

or a controlled substance offense; and the defendant has at

least two prior convictions of either crime of violence

offenses or controlled substance offenses. The parties

agree that Mr. Avitto has not committed any controlled

substance offenses. Because, for the reasons I will detail,

I find that Mr. Avitto does not have two prior convictions

for "crime of violence" offenses, I conclude that he is not

a career offender under Section 4B1.1 of the guidelines.

Under Section 4B1.2, a crime of violence is

defined as any crime under federal or state law punishable

by imprisonment for more than one year, that -

(1) has an element of use, attempted use, or

threatened use of physical force against the person of

another, or

(2) is burglary of a dwelling, arson, extortion,

involves use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury to

another.

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The parties do not dispute that the defendant has

not committed burglary, arson, extortion, or used

explosives, or that the remainder of the second part of this

definition, the residual clause, is void under the authority

of Samuel Johnson v. United States, 135 Supreme Court 2551,

(2015). Accordingly, in order to establish that Mr. Avitto

is a career offender, the government must establish that he

has two prior convictions of crimes that satisfy the first

clause of the "crime of violence" definition, the force

clause. In other words, the government must prove that he

has been convicted of two crimes that have "the use,

attempted use, or threatened use of physical force against

the person of another" as an element.

When defining a violent felony, the Armed Career

Criminal Act, 18 United States Code, Section 924(e)(2),

employs the identical "use, attempted use, or threatened use

of physical force" language that is used by the Sentencing

Guidelines' definition of a crime of violence under Section

4B1.2. In Curtis Johnson v. United States, 559 U.S. 133,

the Supreme Court held that in order for a crime to be

considered a violent felony under the Armed Career Criminal

Act, the offense must include violent force as an element.

That's Curtis Johnson 559 U.S. at 140. Violent force

requires more than mere physical force. It requires "force

capable of causing physical pain or injury to another

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person." Curtis Johnson at 140.

The defendant argues that Curtis Johnson's

requirement of "violent force" in determining whether a

crime constitutes a violent felony, the ACCA also applies in

determining whether a past conviction is a "crime of

violence" for the purposes of the Career Offender provision

of the Sentencing Guidelines. I agree. The Second Circuit

has found that these two definitions are "identical in all

material respects," and that "cases interpreting the ACCA's

definition of a violent felony are highly persuasive in

interpreting the Guidelines' definition of a crime of

violence." United States v. Reyes, 691 F.3d 453, at 458

note 1, Second Circuit 2012.

Moreover, numerous other courts have explicitly

applied Curtis Johnson to Guideline 4B1.2. See United

States v. Castro Vazquez, 802 F.3d 28 at 37 to 38, 1st

Circuit, 2015; United States v. Aparicio-Sorio, 740 F.3d 152

at 154, 4th Circuit 2014; and United States v. Simmon, No.

13-CR-855, 2015 WestLaw 9480039 at 7, Southern District of

New York, December 28, 2015. Because I agree with the

reasoning of those courts, I conclude that Mr. Avitto is a

career offender within Section 4B1.1, only if the government

establishes that he has been convicted of two prior crimes

that have as an element the use, attempted use, or

threatened use of violent physical force against the person

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of another.

The defendant argues that his prior New York

convictions for the crimes of robbery in the third degree

and robbery in the second degree do not have violent force

as an element, and thus cannot constitute the predicate

offenses for the Career Offender sentencing enhancement. In

determining whether a prior conviction can serve as a

predicate offense for this enhancement, courts apply either

a categorical or a modified categorical approach. Under the

categorical approach, courts "consider the offense

generally, that is to say, courts examine it in terms of how

the law defines the offense and not in terms of how an

individual offender might have committed it on a particular

occasion." United States v. Beardsley, 691 F.3d 252, at

259, 2nd Circuit 2012, quoting Begay v. United States, 553

U.S.137, at 141.

In the context of this case, the categorical

approach requires that I evaluate whether robbery in the

third degree and robbery in the second degree under New York

Penal Law are by definition "crimes of violence" under the

Career Offender provision of the Guidelines, irrespective of

whether Mr. Avitto actually carried out these crimes in a

violent manner. In other words, the facts underlying the

defendant's conviction do not matter. The only question is

whether it's possible for Mr. Avitto to have committed these

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robbery offenses without having committed a "crime of

violence" under the Career Offender provision, as that term

has been interpreted by the Supreme Court in Curtis Johnson.

Under New York law, "a defendant is guilty of

robbery in the third degree, when he forcibly steals

property." That's New York Penal Law Section 160.05.

Although force is an element of this offense, the violent

force required after Curtis Johnson is not. While "forcibly

stealing property" will likely often entail the use of

violent force, it is not a necessary element of the crime.

As defendant points out, New York courts have found conduct

such as bumping a victim and taking his money, shoving a

victim aside to prevent pursuit of a co-defendant, and

engaging in a tug-of-war with a victim over the property

being stolen is sufficient to satisfy the "force" element of

the robbery in the third degree. See, respectively, People

v. Lee, 602 N.Y. S.2d, 138, at 139, 1993; People v. Bennett,

592 N.Y.S. 2d, 918, 1993; and People v. Safon, 560 N.Y.S.2d,

552. None of these minimal exertions of force rise to the

level of "violent force" that, after Curtis Johnson, the

Career Offender provision requires as an element of a

qualifying predicate. Thus, robbery in the third degree is

not a "crime of violence" for purposes of determining

whether Mr. Avitto is a career offender.

In order to determine whether robbery in the

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second disagree is a crime of violence, the modified

categorical approach must be applied. This approach is

employed whenever statute is "divisible," that is, when the

statute lists numerous potential offenses in the

alternative, and the commission of any of those enumerated

offenses could serve as the basis for a conviction under the

statute. When evaluating a divisible statute, courts may

look to the indictment, jury instructions, plea colloquy,

and plea agreement to determine under which subcategory of

the statute a defendant was convicted. Descamps v. United

States, 133 Supreme Court 2276, at 2284-85, 2013. The

courts' use of these documents, however, is limited to

determining what elements of the statute in question were

the basis of the defendant's conviction. The court may not

consider the facts of the underlying crime. Descamps, 133

Supreme Court at 2285. If a divisible statute contains some

subsections that would qualify as "crimes of violence" and

others that would not, the burden is on the government to

bring forward the permitted documents to illustrate that the

defendant was convicted under a subsection which satisfies

the "crime of violence" definition. See Reyes 691 F.3d at

458.

Robbery in the second degree is a divisible

statute. New York law defines robbery in the second degree

as "forcibly stealing property" when any of a list of

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circumstances enumerated in the subsections of the statute

are also present. New York Penal Code, Section 160.10.

Some of these subsections would not constitute a crime of

violence, such as Section 160.10(1), which consists of

forcibly stealing property when "aided by another person

actually present." Others, such as Section 160.10(2)(a),

which consists of "forcibly stealing property when the

defendant causes physical injury to any person who is not a

participant in the crime" would constitute a crime of

violence.

As the definition of robbery in the second degree

consists of a divisible statute, only part of which would

constitute a crime of violence, the burden is on the

government to utilize the permitted documents to demonstrate

that defendant was convicted of a crime of violence. Here,

the government has offered no evidence on this point. The

Probation Department's presentence report states only that

the defendant was convicted of "robbery in the second

degree; aided by another," suggesting the defendant was

convicted of Section 160.10(1), "forcibly stealing property"

when "aided by another person actually present." Under this

subsection, robbery in the second degree is identical to

robbery in the third degree, except that it is committed

with another person. I have already concluded that robbery

in the third degree is not a "crime of violence" under the

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Career Offender provision. The added element that this

crime is committed with another person does nothing to

change that analysis. Accordingly, like his conviction for

robbery in the third degree, the defendant's conviction for

robbery in the second degree does not constitute a

conviction for a "crime of violence" that satisfies the

Career Offender provision.

I recognize that this is an unsettled area of the

law. Indeed, the government has pointed to numerous Second

Circuit cases that found robbery in the second and third

degrees under New York Penal Law to be "crimes of violence."

Many of those cases, however, predate Curtis Johnson and

thus, in my view, having implicitly overruled to the extent

that they find that a crime can be categorized as a "crime

of violence" notwithstanding the absence of any element

requiring the use, attempted use, or threatened use of

violent physical force. All of the post Curtis Johnson

cases to which the government cites are summary orders that

lack precedential value. Further, all of these summary

orders either rely on the Second Circuit's pre Curtis

Johnson precedent or explain simply that robbery in the

second or third degree is a crime of violence because

physical force is an element of the offense. They do not

address the Supreme Court's pronouncement in Curtis Johnson

that language in the ACCA identical to that in the

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Guidelines' Career Offender provision requires that a

qualifying predicate offense have as an element not just

physical force, but violent physical force.

Finally, I acknowledge that the commentary

accompanying the Sentencing Guidelines' "crime of violence"

definition explicitly includes robbery on a list of offenses

that are meant to be considered "crimes of violence."

Nonetheless, the Supreme Court has held that the Guidelines'

commentary is not authoritative if "it violates the

Constitution or federal statute, or is inconsistent with, or

a plainly erroneous reading of that guideline." Stinson v.

United States, 508 U.S. 36, at 38, 1993. Since the

commentary of the "crime of violence" definition was

written, the Supreme Court's ruling in Samuel Johnson

implicitly struck down the "residual cause" of the

definition as unconstitutional. The commentary gives no

indication as to whether robbery was considered a crime of

violence, because it automatically fell within the "force

clause" or the now defunct "residual clause" of the

definition.

In light of the Supreme Court's holding in Samuel

Johnson, I do not feel I could rely on the Guidelines

commentary as authoritative, without more guidance from the

Sentencing Commission. As the commentary currently stands,

it's possible that the Commission considered robbery a

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"crime of violence" because it felt under the "residual

clause" of the Guidelines' "crime of violence" definition.

If so, the commentary may have been based on language the

Supreme Court has since found to be unconstitutionally

vague.

For all of these reasons, I find that Mr. Avitto

is not a career offender because he does not have two prior

convictions for controlled substance offenses or crimes that

qualify as "crime of violence" offenses under the applicable

Guideline.

There is only one other guideline issue, which was

the five-level enhancement versus the three-level

enhancement. Based on the findings made in connection with

the proceedings of the defendant's brother Nicholas, I find

that the three-level enhancement applies, and, therefore, I

reach the conclusion that defendant is at a level 22,

Criminal History Category five, calling for a range of

imprisonment of 77 to 96 months.

With that, obviously I received the Presentence

Report, and the addendum to the Presentence Report; Mr.

Weil's letter of January 29th and its exhibits; the

Government's letter of February 18th; and all of the

briefing that went into the prior opinion.

Is that a complete sentencing record?

MR. WEIL: Yes, your Honor.

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MR. KABRAWALA: It appears to be, Judge.

THE COURT: Okay. Mr. Weil.

MR. WEIL: I will basically rely on my written

submission, your Honor, as to the 3553(a) factors. I would

just --

THE COURT: Let me just find out, have you

reviewed all of the documentation with your client?

MR. WEIL: Yes, your Honor.

THE COURT: Okay.

Mr. Avitto, are you satisfied that you have had

plenty of time to review with your lawyer all of the

documents to which I just referred to, and everything else

that you reviewed that related to your sentence?

THE DEFENDANT: Yes, I have.

THE COURT: Please go ahead.

MR. WEIL: I will be brief and mainly rely on my

submission.

I guess the main thing I would want to note is

that the entire proceeding that we had about the initial

obstruction had no relationship with Scott Avitto.

THE COURT: I know that.

MR. WEIL: I know you know that. It is true that

he knew the confidential informant from parole, and that's

about as far as his involvement in that went. He was in

custody, and he was in fact barred from speaking to Nicholas

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Avitto even by telephone. When Nick Avitto was at liberty,

there was a bail condition for Nick Avitto to have no

contact with Scott Avitto.

Your Honor, I just want to highlight how different

Mr. Avitto's behavior has been in this case.

As I mentioned in my letter, he got arrested a

couple of years ago. I told him what he was facing. I

didn't have these Johnson cases at that point, thinking that

he was facing anything less than a career offender sentence,

and I never had a case of this magnitude that was just

dropped with a person getting released after 30 days. I

told him that.

He proceeded to, when he got out, take his heart

and just go to work and do the right thing for the next

couple of years, until this came back to catch up with him.

He understood all along, your Honor, that that was a

possibility. We discussed that he might likely come back,

and he took it to heart, and he worked.

When he did come back, and Mr. Kabrawala called me

and said, remember that guy Scott Avitto that the FBI is

looking for? It took him a couple of days, he wanted to get

himself together, but I took him down to 26 Federal Plaza.

He self-surrendered on this case, which I think is a big

deal in this type of case, and pled guilty to an Information

and is now standing before you.

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I do think he's a changed person, your Honor. He

did, as a result of what happened BJ Avitto, and

reconnecting with his sister, Patricia Sheperd, who is here

in the audience, after 15 years, Mr. Avitto I think kind of

recognized that he never had the relationship with his own

kids that he wanted to have because he was in prison for

most of their lives. And now at this point, after losing

his nephew and reconnecting with Ms. Shepherd, I think she

said it best when she says he sees a future where he fits

in. Why it took him until now to get there, your Honor, I

think is somewhat apparent from the PSR. He had this very

tumultuous childhood, losing his Dad, and didn't trust

people, and he was for himself in the world, and he's

getting past that. I think that's the strongest indication

that he's not a threat to recidivate. His record is what it

is, your Honor. It's significant, and we recognize that,

but we don't think that he will be a recidivist. We

recognize that the crime was scary for people. We don't

think his sentencing was based on recidivism, and I will

leave it at that, your Honor.

THE COURT: Mr. Avitto, is there anything you

would like to say?

THE DEFENDANT: Yes.

First of all, I would like to apologize, your

Honor, to the financial institution where this crime took

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place, and to its employees, and for any stress that I my

have caused to them, I apologize for that.

I would like to apologize to my family. I would

like to apologize to my wife and my sister, and also to the

Court. I know what I have done is wrong and I take full

responsibility for that, and the actions I may have caused

anyone.

I appreciate and realize that growing up and not

having a feeling of anybody in my corner, which after the

time being arrested for this and being released, I realized

the people I worked for wanted me back. They also pushed me

to go to another company to earn more and take more

responsibility, and for them I'm thankful and grateful to

them, too, because they said the balance of the time I got

from the court, they are willing to hire me back and be

trained.

I definitely am sorry for what I have caused,

again. I couldn't articulate more that way, but this is my

true feelings. With that, I apologize to the Court and

everybody else here.

THE COURT: Mr. Kabrawala.

MR. KABRAWALA: I don't want to belabor the point,

but I think the point is made in the government's sentencing

letter. The take away here is the defendant has had

essentially unrelenting criminal history, and what struck me

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was at the arraignment on the complaint of the defendant,

Judge, the government asked for remand based on the criminal

history, and Judge Gold commented something to the effect

that I thought the government's position was based upon your

youthful robberies that you participated in. And then I

turned the page, and Judge Gold had commented that he never

quite seen a criminal history rap sheet that long.

What is striking here is that it's robbery after

robbery. It's a 1998 robbery of a person; a 1993 gunpoint

robbery of a grocery store; a 2003 second degree robbery,

what we call a note job where he passed a note; a 2003

robbery; and each time these are state court sentences, and

I frankly never seen sentences like this in state court for

robberies. There are three years, six years, ten years, 42

months. It tells a story, and the Court should be mindful

of that when it considers a sentence that is appropriate in

this case and necessary in this case to send a very strong

message about specific deterrence.

THE COURT: Thank you.

Well, as I indicated, I have calculated the

defendant's advisory guidelines at a level 22, Criminal

History Category 5. I have considered the Guidelines.

Turning to the remaining 3553 factors. The

seriousness of defendant's armed bank robbery conviction

cannot be disputed, nor are there any factors mitigating the

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seriousness of that offense.

In terms of personal characteristics, I must agree

with the Government that the defendant's criminal history

presents an extremely aggravating factor. Four of

defendant's many crimes of conviction, with criminality

spanning most of his adult life, are especially serious.

These resulted in incarceratory sentences of three to

six years, six to twelve years, ten years, and seven years.

Also, the defendant has at least twice violated his parole

by the commission of additional criminality while on parole,

and as set forth in the presentence report, accumulated a

substantial history of disciplinary infractions while

incarcerated.

Further, in 2002, the defendant committed the

three separate bank robberies, two of which were apparently

not prosecuted, which resulted in no additional criminal

history points. Defendant's virtually uninterrupted history

of criminality resulted in multiple lengthy prison terms,

did not deter the present violent offense. Deterrence and

protection of the public are of paramount importance in

defendant's case in assessing these statutory factors.

While I am skeptical with the tragic murder of

defendant's nephew has resulted in the turning of the

defendant's life around, I do agree that this hideous event

and its impact on the defendant should be considered with

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his sentence, as should his difficult childhood.

On balancing these and all of the other 3553(a)

factors, I'm satisfied that an incarceratory sentence of

seven years or 84 months is sufficient, but not unduly

severe, to accomplish the goals of sentencing. I therefore

sentence the defendant to the custody of the Attorney

General for a period of 84 months; to an order of

restitution in the amount of $8,179.00 due immediately and

payable at a rate of $25 per quarter while in custody, and a

rate of ten percent of gross income while on supervised

release, with interest payment to be waived.

There will be three years of supervised release

with special conditions of supervision as follows:

The defendant shall comply with the order of

restitution. He must make full financial disclosure to the

Probation Department. For a period of six months, he must

comply with a curfew by electronic monitoring, as directed

by the United States Probation Department. The defendant

will remain at his place of residence from seven p.m. to

seven a.m. The Department may designate another twelve-hour

respective time period if defendant's employment, education,

or observance of religious services preclude the above

specified times. The curfew by electronic monitoring shall

commence on a date approved by the Probation Department.

During the curfew period, the defendant shall wear

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an electronic monitoring bracelet or similar tracking

device, and follow all requirements and procedures

established by the curfew via the electronic monitoring by

the Probation Department. In addition to that, to pay the

costs, including the price of the monitoring equipment, to

the degree the defendant is able, and shall disclose all

financial information and documents to assess his ability to

pay.

I prohibit the possession of a firearm, ammunition

or destructive device.

I know that the defendant has historically had

substance abuse problems, which are not disputed, and I am,

therefore, going to impose a condition that he accept any

substance abuse treatment recommended by the Probation

Department that will start as outpatient treatment. But

should it become necessary, it will be converted by me to

inpatient treatment; and he will pay for the cost of

services, obviously to the extent that he's reasonably able.

I will also impose the mandatory $100 special

assessment.

I think there are no open counts.

MR. KABRAWALA: There are no open counts.

I believe the Court has already entered an order

of forfeiture.

THE COURT: I have signed that.

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MR. KABRAWALA: Correct. There's no fine?

THE COURT: No fine.

MR. KABRAWALA: All right.

And although the defendant has waived effectively

his right to appeal, the Court might as well warn him of

that right.

THE COURT: Yes.

Mr. Avitto, there are circumstances in which a

defendant may appeal his sentence. You discuss that with

your lawyer. If you choose to appeal, a Notice of Appeal

must be filed within 14 days, and a lawyer will represent

you on appeal.

I will recommend to the Bureau of Prisons that Mr.

Avitto receive substance abuse treatment while incarcerated.

Is there any request of designation?

MR. WEIL: He's requesting a designation in

Pennsylvania where his sister is. I think that's the

nearest penitentiary.

THE COURT: Okay.

THE DEFENDANT: Excuse me, your Honor. I do have

one other thing.

THE COURT: Why don't you run it past your lawyer,

first.

(Pause)

MR. WEIL: That's all. It concerned the

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separation. I will take it up with Mr. Kabrawala.

MR. KABRAWALA: I will discuss it with Mr. Weil.

THE COURT: Fine.

(The sentence is concluded.)

CERTIFICATE OF SERVICE

I certify that on March 22, 2016, a copy of this motion was served by hand

on counsel for respondent: the U.S. Attorney’s Office, One St. Andrew’s Plaza,

New York, NY 10007.

DATED: March 22, 2016 ___________________________________ MATTHEW B. LARSEN

united states district court southern district of new … v. alton campell 2255 motion.… ·...

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