Simmons v. United States

• Court: District Court, S.D. New York
• Decided: November 15, 2019
• Docket: 1:16-cv-04797
• Status: Unknown

Opinion

| ; "A USDC SDNY | □ □ " MENT | □ UNITED STATES D STRICT COURT pOCUM QONICALL (FILE! SOUTHERN DIST CT OF NEW YORK ELECTR wnnnnn □□□ nena eee a nnmmnn manna naman ee x 1 POC #: 1. □ TYRONE SIMMONS, | : DATE FILED: HP 2: | : : | | | Petitioner, : ORDER DENYING PETITION -against- : FORHABEAS CORPUS | | □ UNITED STATES O AMERICA, 16 Civ. 4797 (AKH) | ' : 08 Cr. 1133 (AKA) Respondent. pamenenm een dan □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ KK ALVIN K. HELLERSTEIN, U.S.D.J.: Bf Petitio ier Tyrone Simmons filed this petition on June 22, 2016, pursuant} 28 U.S.C. § 2255, to vacate his conviction for brandishing a firearm in furtherance of a “cri fe of violence,” in violatio i of 18 U.S.C. § 924(c)(1)(A)(ii). See ECF No. 1. Petitioner eri his I j conviction was predic. ted.upon a charge of conspiracy to commit a Hobbs Act robbery,} d that this predicate has been held invalid by the Supreme Court and the Second Circuit. Petit cd er also argues that d charge of attempt to commit a Hobbs Act robbery, a crime to which hg □□□ pleaded guilty, cannot act ‘as a § 924(c) predicate. 1 The petition is denied. Petitioner pleaded to brandishing a firearm in furtherance of an attempt to éo nit a Hobbs Act robbery, and attempt remains a valid § 924(c) predicate.

. ! ' Background

On Set tember 15, 2010, Petitioner was charged in a three-count inform ion (the “Information”) with (1) conspiracy to commit Hobbs Act robbery, see 18 U.S.C. § 195 (b); (2) i attempted Hobbs mpi see id.; and (3) carrying and use of a firearm in further e of | | | both the charged Hobbs Act conspiracy and Hobbs Act attempt, see 18 U.S.C. § sa) I). See 8-cr-1133, ECF No. §1. As to the charged attempt, the Information alleged:

On or about July 14, 2007, in the Southern District of New York, Tyrone Simmons, the!/defendant, unlawfully, and knowingly did attempt to commit | robbery, ‘as that terin is defined in Title 18, United States Code, Section | 1951(b)(i1), and would thereby have obstructed, delayed, and affected commerc | |

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| || and the movement of articles and commodities in commerce, as that term is | defined in 'Title]18, United States Code, Section 1951(b)(3), to wit, Simmons) along with others not named as defendants herein, attempted to commit an armed] | robbery of a suspected narcotics trafficker . . . | | | □ 8-cr-1133, ECF No. 81), at 4. As to the charged § 924(c) offense, the Information chargel | From in or about July 2007 through in or about December 2007, in the Southn | District of New York, Tyrone Simmons, the defendant, unlawfully, willfully, an knowingly, during and in relation to crimes of violence for which he may be! prosecuted in alcourt of the United States, namely, the robbery conspiracy charged in Count One of this Information and the attempted robbery charged in | Count Two of this Information, did use and carry firearms, and in furtherance of such crime, did possess firearms, and did aid and abet the use, carrying, and ‘possession of firearms, which were brandished. Id. at 4-5. Petitioner pleaded guilty to all three Counts in the Information pursuant to a 1 a agreement dated Septe ber 8, 2010, and signed by Petitioner and his attorney on Septe ! er 15, 2010. See Pl. Br. Ex. B., at 1. ' The plea agreement described the § 924(c) firearm count, Count Three, in relation □ to the robbery csi charged in Count One: Count Three of the Information charges the defendant with using, carrying, and | possessing firearms, and aiding and abetting the same, which were brandished | during and in elation to the robbery conspiracy charged in Count One... Id. at 1-2. | At Peton's plea allocution taken September 15, 2010, the governme | described Count Three consistently with the plea agreement, i.e., as a brandishing of a 1 arm “in furtherance of theicrime of violence charged in Count One of the information; that is , the

robbery conspiracy”:) *; Count Three, Which is the gun charge, has two elements: First, that on or about| the date charged in the information; that is, July 14, 2007, thedefendant . knowingly brandished or aided and abetted the brandishing of a firearm by another; And, (second, that the defendant possessed or used the firearm which w¢ brandished or‘aided and abetted the brandishing of a firearm by another in furtherance of the crime of violence charged in Count One of the information; that is, the robbery conspiracy. | |

PI. Br. Ex. C, at 11:12-21. | Howevel , Petitioner allocuted, not to the conspiracy alleged in Count One of the Information, but rather to the attempted robberies alleged in Count Two. See id. The fol Shine exchange took place: |, The Court: Tell me what you did. To make it easier for you, there is a table set | out... showing dates of [twelve] robberies or attempted robberies between July | 14, 2007 and December 10, 2007. Were you involved in each and all of those robberies— | The Defendant: Yes. The Court: —or attempted robberies? And with respect to the Yonkers one in | item A, were you inside the apartment? The Defendan i: Yes. The Court: Dic you have a gun? . The Defendant: Yes. The Court: Did you show that gun? The Defendant: Yes.

_ The Court: Did you use that gun in effect to scare the person into compliance | with what you wanted to do? The □□ Yes. The Court: Dil you have a gun at any of the other robberies or attempted robberies? The Defendant: Yes, there w[ere] guns used. The Court: es were guns used. In all of them? The Defendant: Yes. Id. at 15:21-16:17. 1

On No vember 18, 2010, I sentenced Petitioner to 219 months’ impriso t 135 months concurrently or Counts One and Two, and, consecutively, 84 months, on Count | ee. See 8-cr-1133, ECF “ 97, at 2.

Petitioner filed this § 2255 action in June 2016. See ECF No. 1. With th : ponsent of the parties, I stayed fhe case to await decisions in ongoing Second Circuit and Supre on litigation bearing on P titioner’s claims. After United States v. Davis, 139 S. Ct. 2319 an holding that 18 veh 924(c)(3)(B) is unconstitutionally vague, and United States v. | rrett, 937 F.3d 126 (2d Cir. 2019), holding that a conspiracy to commit a Hobbs Act robbery i ota “crime of violence” ficient to be predicate offense to § 924(c), I lifted the stay. | Discussion When d § 924(c) conviction rests upon both a conspiracy to commit Hobbs Act robbery and a spurt valid § 924(c) predicate offense, the conviction remains valid, e r after Davis and Barrett. Seb, e.g., United States v. Walker, --- F. App’x ---, 2019 WL 4896839! at *2

(Oct. 4, 2019); In re Navarro, 931 F.3d 1298, 1302 (11th Cir. 2019) (“[A]lthough Nava pled guilty to conspiracy tq commit Hobbs Act robbery and a § 924(c) violation, his plea agr Le and the attendant factal proffer more broadly establish that his § 924(c) charge was pr Heated both on conspiracy tocommit Hobbs Act robbery and [a valid predicate offense].”). | | There rs two questions to be decided: (1) is an attempt to commit a Hotbs Act robbery a “crime of violence” under 18 U.S.C. § 924(c); and (2) was the Information to hit Petitioner pleaded natrowed by his plea agreement and/or the description of the § 924( Ltrense provided by the om at his plea hearing. I hold that attempt to commit Hobbs | robbery is a crime of | iolence and that, notwithstanding the plea agreement and descrip, ipn of ! : : | | 4 i

i the § 924(c) offense at plea, Petitioner pleaded to brandishing a firearm in furtherance ot an attempt to commit Act robbery. ! | A. Attempt to Commit a Hobs Act Robbery is a § 924(c) Crime of Violence | | Section 924(c) defines a “crime of violence” as a felony offense that “has ak bn element the use, attempted use, or threatened use of physical force against the person or ptoperty of another.” 18 U.S.C. § 924(c)(3)(A). In order to decide if an offense is a “crime of viole” . . . . wl under this clause, moursyapey the so-called “categorical approach,” which entails determi ing the “minimum criminal a necessary for conviction under a particular statute.” United States v. Hill, 890 F.3d 1, 55 (2d Cir. 2018) (quotation marks omitted). In Petitioner’s oly the relevant offense is the Hobbs Act. See 8-cr-1133, ECF No. 81. The Hobbs Act provides: | | Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any, article or commodity in commerce, by robbery or extortion or | attempts or conspires so to do, or commits or threatens physical violence to any person or property 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. 18 U.S.C. § 1951(a). ™ Hobbs Act defines “robbery” as | | the unlawful takit g or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property . . . | Id. at § 1951(b)(1). | | ! i] To “establish attempt, the government must prove that a defendant had the tent | to commit the mecning 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: a, i | | | ' Tn several recent orders, I rejected the government’s argument that petitioners in comparable situations to thatiof the Petitioner here procedural defaulted on their respective § 2255 challenges. See Camacho v. United States, 17- cv-5199, ECF No. 675; Romak v. United States, 16-cv-4829, ECF No. 12; Jimenez v. United States, 16-cv-46 3, ECF No. 6. For the same reasons outlined in those orders, I reject the government’s contention here that Peti ioner has procedurally defaulted. Sée ECF No. 13, at 4. Accordingly, I proceed to the merits. | | i : . | | ! | | |

4 □ i requires “an agreement by two or more persons to commit any offense against the United sate . . and an overt act to a the object of the conspiracy.” United States v. Chimurenga, 760|F.2d

|! 400, 404 (2d Cir. 1985).; Thus, whereas attempt requires that a defendant take a substantial step pot toward completion of the underlying crime, conspiracy does not. | | || In a recent case before the Eastern District of New York, Judge Matsumotoj eld that an attempt to comm a Hobbs Act robbery is a crime of violence under § 924(c), reaspaiing in relevant part as follows: | | ! [T]he Second Cifeult has squarely held that substantive Hobbs Act robbery qualifies as a crime of violence.... | | |: [T]he Second Citeuit has yet to determine whether attempted Hobbs Act robbery | qualifies as a crithe of violence under § 924(c).... Nor has any district court in the Second Circuit ruled on this specific question, as of the date of this Memorandum “ Order. 1 i | The Second Circwit has, however, indicated that where a substantive offense is a | | crime of violence under § 924(c), an attempt to commit that offense similarly qualifies .... * is in line with precedent around the country. United States v. Jefferys No. 18-cr-359, 2019 WL 5103822, at *5-7 (E.D.N.Y. Oct. 11, 2019) y | | (internal citations omens see also, e.g., United States v. St. Hubert, 909 F.3d 335, 351 (ljlth . Cir. 2018) (“Like compléted Hobbs Act robbery, attempted Hobbs Act robbery qualifies a | Pp } y 1 crime of violence under 5 924(c)...”). I agree with Judge Matsumoto’s analysis. Section 924(c) expressly include : | LU “attempted use” of force in its definition, and Hobbs Act robbery requires the taking of property 4 | by “actual or threatened force, or violence, or fear of injury,” 18 U.S.C. § 1951(b). Takingla yury substantial step toward completion of such a robbery categorically involves the attempted ‘ 4 2 ? Petitioner attempts in a footjor to distinguish Jefferys by arguing that Judge Matsumoto “explicitly noted i her ruling that the defendant’s brief did not contain the necessary analysis to support his position,” and that this missing “analysis is present here.” Pl.iReply, 8-cr-1133, ECF No. 163, at 7 n.5. This claim omits that Judge Matsum to also stated that despite defendant's failure to “provide a persuasive analysis” or “apply the categorical approach,” he would “nonetheless address the defendant’s argument” on the merits. Jefferys, 2019 WL 5103822, at *6. : : 6 □ i |

iy ' threatened use of force: And as Judge Matsumoto observed, this Circuit has found Hobb jet robbery to be a crime of violence, see United States v. Hill, 890 F.3d 51, 60 (2d Cir. 201 ) and this Circuit and others have found that attempts to commit crimes of violence are themse □ crimes of violence. See, e.g., United States v. Pereira-Gomez, 903 F.3d 155, 166 (2d Ci 2018); | Arellano Hernandez v. ‘Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016) (“The ‘attempt’ porti n of [the] conviction does oo alter our determination that the conviction is a crime of violenc B. Neither the Plea Agreement nor the Prosecutor’s Explanation of the § 924(c | se at Petitioner’s Plea Hearing Narrowed the Information | | Petitioner pleaded guilty to all three Counts in the Information: the § 924 | gun count (Count Three), and both charged predicates, i.e., attempt to commit a Hobbs Act He ; (Count Two) and conspiracy to commit a Hobbs Act robbery (Count One). The specified that Count Three was predicated upon both the conspiracy and the attempt Co ints. : And Petitioner’s allocution was a clear confession to brandishing a firearm in furtheran ejof an attempt to commit Hobbs Act robbery. Petitioner testified that during at least one robbery i attempt he brandished:a firearm to frighten a would-be victim into compliance, and that} used i ! a gun in every single One of the charged robberies.’

The Information was not amended, constructively or otherwise. Althoug! ne ; plea agreement described the § 924(c) offense as based on the Hobbs Act conspiracy al eged in ; : Count One of the Information and not the attempt alleged in Count Two, and although t ; government’s description of the § 924(c) offense at Petitioner’s plea hearing was consi tént with the plea agreement, Petitioner also pleaded guilty to the attempt charge alleged in oT of

the Information, separately and as a predicate to Count Three. The Information gave clear notice 3 This case is, therefore, in stark contrast to several recent Davis-motivated habeas petitions addressed by this Court, in which I observed that the allocutions therein failed to address any potential predicate offense aside from 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 robbery or another valid predicate. See Camacho, 17-cv-5199, ECF No. 13, at 1-2 Roman, 16-cv-4829, ECF No. 12, at 1-2; Jimenez, 16-cv-4653, ECF No. 6, at 1-2. : 7 :

‘ | | to Petitioner that both the Hobbs Act Conspiracy and the Hobbs Act Attempt were predi ns for Count Three, the § 924(c) Count. His allocution made it even clearer that the 924(c) Co was, ‘ in fact, predicated upori the attempt. The government’s descriptions did not amend, or nd ow, the Information. Cf, e.g., United States v. Bastian, 770 F.3d 212, 220 (2d Cir. 2014) (“Not every : | | divergence from the terms of an indictment, however, qualifies as a constructive amend: ie id. (“We have consistently permitted significant flexibility in proof adduced at trial to suppor a defendant’s conviction’ provided that the defendant was given notice of the core criminality to be | | proven against him.”) (quotation marks omitted). Conclusion | For all the foregoing reasons, the § 2255 petition is denied. The Clerk shall terminate the open motion (8-cr-1133, ECF No. 131). 2 | | SO ORDERED. NW. Dated: November /¢2019 C New York, New York ALVIN K. HELLERSTEIN Unit¢d States District Judge : 5 : 4 t | | :