Simmons v. USA, No. 1:2016cv04797 - Document 15 (S.D.N.Y. 2019)
Court Description: ORDER DENYING PETITION FOR HABEAS CORPUS. The § 2255 petition is denied. The Clerk shall terminate the open motion (8-cr-1133, ECF No. 131). SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 11/15/19) (yv)
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Simmons v. USA Doc. 15 Case 1:16-cv-04797-AKH Document 15 Filed 11/15/19 Page 1 of 8 usocsoNY ' UNITED STATES D STRITCT COURT SOUTHERN D~ST CT ?F NEW YORK - ----------------- ------1 ----------------------------- X TYRONE SIMMON Petitioner, -agail).st: ' oocuMENT 1FILE\ 1 ·ELECTRONICALL . ! DOC#: -----ii-rt;;:""- DATE Fl LED:__ll....\.+lH-1--t:::::: ~ '. ORDER DENYING PETI FOR HABEAS CORPUS 16 Civ. 4797 (AKH) 08 Cr. 1133 (AKH) UNITED STATES O AMERICA, : . Respondent. --- -1-- -- - --------------------------------- X ' I ; • ALVIN K. HEL4ERS EIN, U.S.D.J.: i I I Ptjtitio er T~rone Simmons filed this petition on June 22, 2016, pursuant; ' U.S. C. § 225 5, 28 I ~ vac te hi~ conviction for brandishing a firearm in furtherance of a "er· i Ie of violence," in vio~atio of 1~ U.S.C. § 924(c)(l)(A)(ii). See ECF No. 1. Petitioner argu !ishat his I I ' conviction was predic ted,upon a charge of conspiracy to commit a Hobbs Act robbery, : '• I d that ! this predicate has bee held invalid by the Supreme Court and the Second Circuit. also argues that~ cha ge of attempt to commit a Hobbs Act robbery, a crime to which h ' pleaded guilty, canno act ·a,s a § 924(c) predicate. 1 The pe ition is denied. Petitioner pleaded to brandishing a firearm in fu ' : of an attempt to co 1 ' it a Bobbs Act robbery, and attempt remains a valid § 924(c) pre. i ate. I Background Qn Se tember 15, 2010, Petitioner was charged in a three-count inform i n (the ' I' I "Information") with ( ) conspiracy to commit Hobbs Act robbery, see 18 U.S.C. § }95 ( ); (2) attempted Hobbs ActlRoqbery, see id.; and (3) carrying and use of a firearm in further : e of both the charge~ Hobbs A~t conspiracy and Hobbs Act attempt, see 18 U.S. C. § 92}(c) I). See I 8-cr-1133, ECF No. 1. A_s to the charged attempt, the Information alleged: On or abput J Simmons, the robbery, :as th 195l(b)(!l), I I ly 14, 2007, in the Southern District ofNew York, Tyrone defendant, unlawfully, and knowingly did attempt to commit I t term is defined in Title 18, United States Code, Section I d would thereby have obstructed, delayed, and affected commerc ' Dockets.Justia.com ,r;:• ' Case 1:16-cv-04797-AKH Document 15 Filed 11/15/19 Page 2 of 8 I and the movem nt of articles and commodities in commerce, as that term is I defined in!Title 18, United States Code, Section 1951(b)(3), to wit, Simmons,! , along wit~ othe s not named as defendants herein, attempted to commit an armed: robbery of a su pected narcotics trafficker ... I : : 8-cr-1133, ECF No. 81, at 4. As to the charged§ 924(c) offense, the Information chirge': f From in or abo t July 2007 through in or about December 2007, in the South rn . District of, Ne York, Tyrone Simmons, the defendant, unlawfully, willfully, I an ' knowingly, dur ng and in relation to crimes of violence for which he may be 1 prosecuted in a court of the United States, namely, the robbery conspiracy charged in Co t One of this Information and the attempted robbery charged in Count Two of is Information, did use and carry firearms, and in furtherance of such crim~, di possess firearms, and did aid and abet the use, carrying, and possession of rearrµs, which were brandished. Id. at 4-5. Petitiop.er p eaded guilty to all three Counts in the Information pursuant to a agreement dated ~epte ber 8, 2010, and signed by Petitioner and his attorney on Septe 2010. See Pl. Br.: Ex. ., at 1. T~e pl t·a ag.reement described the § 924(c) firearm count, Count Three, i to the robbery cop_spir cy charged in Count One: i i I Count Three of the Information charges the defendant with using, carrying, and i possessing fire arms, and aiding and abetting the same, which were brandished . 1 to the robbery conspiracy charged in Count One... during ancl in relation ! I . I Id. at 1-2. Al Peitione~'s plea allocution taken September 15, 2010, the governme described Count Thre consistently with the plea agreement, i.e., as a brandishing of a 1 "in furtherance df the crime of violence charged in Count One of the information; that i ., the robbery conspiracy": Count TI:µee, hich is the gun charge, has two elements: First, that on or about the date charg din the information; that is, July 14, 2007, the defendant . : i knowingly br~dished or aided and abetted the brandishing of a firearm by another; And, /second, that the defendant possessed or used the firearm which w. brandished o~.aided and abetted the brandishing of a firearm by another in furtherance o · the crime of violence charged in Count One of the information; t at is, the robbe · conspiracy. I ! 2 I Case 1:16-cv-04797-AKH Document 15 Filed 11/15/19 Page 3 of 8 ! I I Pl. Br. Ex. C, at 11:12- 1. Howeve , Petitioner allocuted, not to the conspiracy alleged in Count One iof the Information, but r~ther to the attempted robberies alleged in Count Two. See id. The fol IioLing exchange took pla~e: The Court: Tel me what you did. To make it easier for you, there is a table set out ... shqwin dates of [twelve] robberies or attempted robberies between July 14, 2007 and D cember 10, 2007. Were you involved in each and all of those robberies-, . The Court: r attempted robberies? And with respect to the Yonkers one in item A, were y u inside the apartment? The Deferidan : Yes. The Court: Di you have a gun? The Defendan : Yes. The Court: Di you show that gun? The Defendan : Yes. The Court: Di you use that gun in effect to scare the person into compliance with what you anted to do? The Defendanf= Yes. The Court: Dih you have a gun at any of the other robberies or attempted robberies? The Defendant: Yes, there w[ ere] guns used. The Court: ,ere were guns used. In all of them? The Defendant: Yes. Id. at 15:21-16:17. 3 Case 1:16-cv-04797-AKH Document 15 Filed 11/15/19 Page 4 of 8 On No ember 18, 2010, I sentenced Petitioner to 219 months' impriso [I Tt: 135 1 months concurrently o Counts One and Two, and, consecutively, 84 months, on Count Iee. See 8-cr-1133, ECF Nl 97, at 2. Petitioner filed this§ 2255 action in June 2016. See ECF No. 1. With th nsent I of the parties, I stayed }he case to await decisions in ongoing Second Circuit and Supre]~ Court l i litigation bearing 'on P titioner's claims. After United States v. Davis, 139 S. Ct. 2319 ( 919), 1 1 holding that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague, and United States v. trett, I 937 F.3d 126 (2d Cir. '019), holding that a conspiracy to commit a Hobbs Act robbery i ot a "crime of violence" s+cient to be predicate offense to § 924(c), I lifted the stay, I Discussion When ~ § 924(c) conviction rests upon both a conspiracy to commit Hob robbery and a separat1 valid § 924(c) predicate offense, the conviction remains valid, e Act LI after Davis and Barrett. Se:k, e.g., United States v. Walker, --- F. App'x ---, 2019 WL 489683 9~ at *2 1 ! I I (Oct. 4, 2019); In re iavarro, 931 F.3d 1298, 1302 (11th Cir. 2019) ("[A]lthough Nava rf pled 1 guilty to conspiracy tq commit Hobbs Act robbery and a § 924(c) violation, his plea agr ment and the attendant facttal pi:offer more broadly establish that his § 924(c) charge was pr cljcated both on conspiracy tojcommit Hobbs Act robbery and [a valid predicate offense]."). There re two questions to be decided: (I) is an attempt to commit a Ho bs Act robbery a "crime ofvJolence" under 18 U.S.C. § 924(c); and (2) was the Information to,~hich Petitioner pleaded nakowed by his plea agreement and/or the description of the§ 924( 6ffense provided by the govet·ent at his plea hearing. I hold that attempt to commit Hobbs 'c( , I robbery is a crime of; iolence and that, notwithstanding the plea agreement and descrip ipn of , I I I 4 I II Case 1:16-cv-04797-AKH Document 15 Filed 11/15/19 Page 5 of 8 I the § 924(c) offense at f ~ an s plea, Petitioner pleaded to brandishing a firearm in furtherance I attempt to commit Hob,, Act robbery: 1 A. Attempt to C<;>mmit a Hobs Act Robbery is a§ 924(c) Crime of Violence I Section 924(c) defines a "crime of violence" as a felony offense that "has kn element the use, attempild use, or threatened use of physical force against the person or p ~erty I I of another." 18 U.S.C. §924(c)(3)(A). In order to decide ifan offense is a "crime of viol 11ce" 1 } I I under this clause, courts,!apply the so-called "categorical approach," which entails determi i~g the "minimum criminal tonduct necessary for conviction under a particular statute." Unit j States v. Hill, 890 F.3d ~!, 55 (2d Cir. 2018) (quotation marks omitted). In Petitioner's ca, 1, the l relevant offense is the Hobbs Act. See 8-cr-1133, ECF No. 81. The Hobbs Act provides: I ! I Whoever in any \Vay or degree obstructs, delays, or affects commerce or the movement of an~ article or commodity in commerce, by robbery or extortion or attempts or cons~ires' so to do, or commits or threatens physical violence to any person or prope;7, in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both. ! 1 18 U.S.C. § 1951(a). The Hobbs Act defines "robbery" as I Id. at§ 195l(b)(l). I I I the unlawful taki*g or obtaining of personal property from the person or in the presence of anot~er, against his will, by means of actual or threatened force, or violence, or fear lf injury, immediate or future, to his person or property . . . ; : To "estab:ish attempt, the government must prove that a defendant had the i ~ent ! to commit the under!yin, crime and that he took a substantial step toward its completion." : United States v. Gagliardi, 506 F.3d 140, 150 (2d Cir. 2007). Conspiracy, on the other ha df I l 1 In several recent orders, I rejected the government's argument that petitioners in comparable situations to th t;of the Petitioner here procedurally defaulted on their respective § 2255 challenges. See Camacho v. United, Stat s; l 7cv-5199, ECF No. 675; Ramah v. United States, 16-cv-4829, ECF No. 12; Jimenez v. United States, 16-cv-4 ~. ECF No. 6. For the same reasbns outlined in those orders, I reject the government's contention here that Peti iqner ECF No. 13, at 4. Accordingly, I proceed to the merits. has procedurally defaulted. sJe I l 5 I I I II • Case 1:16-cv-04797-AKH Document 15 Filed 11/15/19 Page 6 of 8 ! i I requires "an agreement }y two or more persons to commit any offense against the United ~tes and an overt act to effect the object of the conspiracy." United States v. Chimurenga, 760 ~.2d ::~::o::,::~o~::) :::;:;c:~:::s:::e:::~::efendant rake a subsranti (ep In a rece+ case before the F,astem District of New York, Judge Matsumoto ~eld that an attempt to co1t a Hobbs Act robbery is a crime of violence under § 924(c), reas ~ing i in relevant part as follo')'s: ' ' j [T]h~ Second C_i~cuit ha_s squarely held that substantive Hobbs Act robbery qualifies as a cmp.e of v10lence . . . . ! [T]he Seco~d cJcuit has yet to determine whether attempted Hobbs Act robbery qualifies as a cri+.e of violence under§ 924(c) .... Nor has any district court in the Second Circu/t ruled on this specific question, as of the date of this Memorandum ancl Order. ' I The Second Circvit has, however, indicated that where a substantive offense is a crime of violenc,· under§ 924(c), an attempt to commit that offense similarly qualifies .... T .is is in line with precedent around the country. i) United States v. Jefferys,' No. 18-cr-359, 2019 WL 5103822, at *5-7 (E.D.N.Y. Oct. 11, 20 (internal citations omitt+); see also, e.g., United States v. St. Hubert, 909 F.3d 335,351 (I I~ t Cir. 2018) ("Like complited Hobbs Act robbery, attempted Hobbs Act robbery qualifies a crime of violence under i. 924(c) ... "). 2 1 1 I I I I agree with Judge Matsumoto's analysis. Section 924(c) expressly include I 1 "attempted use" of force in its definition, and Hobbs Act robbery requires the taking of pro • erty I I I by "actual or threatened fi.orce, or violence, or fear of injury," 18 U.S.C. § 195l(b). Taking a substantial step toward erl mpletion of such a robbery categorically involves the attempted l _________....,l:__ II 2 Petitioner attempts in a foo~ote to distinguish Jefferys by arguing that Judge Matsumoto "explicitly noted · ruling that the defendant's brief did not contain the necessary analysis to support his position," and that this "analysis is present here." Pl.iReply, 8-cr-1133, ECF No. 163, at 7 n.5. This claim omits that Judge Matsum stated that despite defendant'~failure to "provide a persuasive analysis" or "apply the categorical approach," would "nonetheless address th'e defendant's argument" on the merits. Jefferys, 2019 WL 5103822, at *6. l I , I rl 6 ~er i$sing tp also ~e I I ••• Case 1:16-cv-04797-AKH Document 15 Filed 11/15/19 Page 7 of 8 I threatened use offorce1And as Judge Matsumoto observed, this Circuit has found Hobb Act robbery to be a crime o:rviolence, see United States v. Hill, 890 F.3d 51, 60 (2d Cir. 201 )and I 1 1 this Circuit and others have found that attempts to commit crimes of violence are themse ves , I crimes of violence. Se~.·, e.g., United States v. Pereira-Gomez, 903 F.3d 155, 166 (2d Ci 2018); 1, ' ~ of Arellano Hernandez v. !Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016) ("The 'attempt' porti I I I .f'). [the] conviction does dot alter our determination that the conviction is a crime ofviolenc I ) B. Neither the Plea A eement nor the Prosecutor's Ex lanation of the at Petitioneri s Plea Hearing Narrowed the Information 924 c fense I f Petitioder pleaded guilty to all three Counts in the Information: the § 924 ici gun count (Count Three), ~d both charged predicates, i.e., attempt to commit a Hobbs Act r ery (Count Two) and cons~iracy to commit a Hobbs Act robbery (Count One). The Inform !tj°n specified that Count Three was predicated upon both the conspiracy and the attempt Co nts. : I And Petitioner's allocution was a clear confession to brandishing a firearm in furtheran b/of an I ' Act robbery. Petitioner testified that during at least one robbe attempt to commit Hobbs ! attempt he brandishe~a firearm to frighten a would-be victim into compliance, and that, ,t a gun in every single one of the charged robberies. 3 I I i The Information was not amended, constructively or otherwise. I plea agreement described the§ 924(c) offense as based on the Hobbs Act conspiracy al ~~ed in i I Count One of the Inf1rmation and not the attempt alleged in Count Two, and although t l f government's descrip~ion of the§ 924(c) offense at Petitioner's plea hearing was consi ent with i the plea agreement, Pititioner also pleaded guilty to the attempt charge alleged in Co woof f I the Information, separately and as a predicate to Count Three. The Information gave cl ar notice I i t, ' This cruse is, therefure, i~ stark contrrust to several recent Davis-motivated habeas petitions add.-essed b Court, in which I observed that the allocutions therein failed to address any potential predicate offense aside fro 'Hobbs Act robbery conspiracy. See supra note 1. I note that in those cases, the defendants also had not pleade guilty to attempted Hobbs Act robpery or another valid predicate. See Camacho, l 7-cv-5199, ECF No. 13, at 1-2 RI oman, 16-cv-4829, ECF No. 12,1Jat 1-2; Jimenez, 16-cv-4653, ECF No. 6, at 1-2. 1 . 7 , I I j Case 1:16-cv-04797-AKH Document 15 Filed 11/15/19 Page 8 of 8 I to Petitioner that both ~e Hobbs Act Conspiracy and the Hobbs Act Attempt were predi jes for Count Three, the § 924(c) Count. His allocution made it even clearer that the 924(c) Co nt was, : I in fact, predicated uporl the attempt. The government's descriptions did not amend, or n ow, ; I , I the Information. Cf, e.g., , United States v. Bastian, 770 F.3d 212,220 (2d Cir. 2014) ("N t' every divergence from the teims of an indictment, however, qualifies as a constructive amend •dnt."); . I id. ("We have consisteµtly permitted significant flexibility in proof adduced at trial to su port a : I defendant's conviction;, provided that the defendant was given notice of the core crimina ity to be . I l ' proven against him.") \quotation marks omitted). Conclusion I For all 1he foregoing reasons, the § 2255 petition is denied. The Clerk sh 11I terminate the open motion (8-cr-1133, ECF No. 131). I ' SOOR,DERED. Dated: I I Nove~ber ;fio19 New Ybrk, New York ' 8
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