Suggs v. United States

• Court: District Court, D. Connecticut
• Decided: March 30, 2023
• Docket: 3:20-cv-00634
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JEROMEP eStUitGioGnSe,r v. , Civil No. 3:20cv634 (JBA) March 30, 2023 UNITEDR eSsTpAoTnEdeSn Ot.F AMERICA,

RULING DENYING PETITIONER’S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE Petitioner Jerome Suggs was sentenced to life in prison under 18 U.S.C. § 3559(c) (the Three Strikes Act) after this Court found that his Hobbs Act robbery conviction was a serious violent felony offense and that he had been convicted in the past of at least two additional serious violent felony offenses. He now moves to vacate, set aside, Joorh ncosorrne vc.t U hniist esde nStteantecse, under 28 U.S.C. § 2255, arguing that the Supreme Court’s decision in 135 S. Ct. 2551 (2015), renders the residual clause in § 3559(c)(2)(F)(ii) unconstitutional, requiring his sentence to be vacated to the extent it relied on the residual clause’s definition of “serious violent felony.” (Petition [Doc. # 1])J.o Thhnseo Gn overnment opposes, arguing that Petitioner’s sentence remains sound even after because his conviction and prior offenses fall within one of the alternative definitions of “serious violent felony” laid out in § 3S5e5e9 (c)(2)(F)(i) or (ii), both of which were left untouched by the Supreme Court’s ruling. [ I.D oPcsr.o #c#ed 5u, r1a3l, H18is.]t o ry A. Background

Petitioner was indicted on one count of Hobbs Act robbery “by demanding money and displaying, brandishing, and discharging a firea rm” in violation of 18 U.S.C. § 1951 (Count 1); one count of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); and one count of unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), § 924(a)(2), and § 924(e)(1) (Count 3). (Gov’t’s Mem. in Opp’n to § 2255 Petition, [Doc. # 5] at 4.) The Government timely filed prior to trial an information pursuant to 18 U.S.C. § 3559(c)(4) and 21 U.S.C. § 851 informing Petitioner that Count One and/or Count Two were serious violent felony offenses, and that he would thus be subject to a mandatory life imprisonment sentence based on prior qualifying predicate felony convictions: (1) On or about July 28, 1989, Suggs was convicted of Assault in the First Degree in violation of Conn. Gen. Stat. ' 53a-59(a)(1), and Attempted Robbery in the First Degree, in violation of Conn. Gen. Stat. §§ 53a-134(a)(2) and 53a-49 (No. 06N-CR89- 302459); (2) On or about July 28, 1989, Suggs was convicted of Attempted Assault in the First Degree in violation of Conn. Gen. Stat. §§ 53a-59(a)(1) and 53a-49 (No. 06N-CR89- 302460). (3) On or about November 18, 1983, Suggs was convicted of Assault in the First Degree in violation Conn. Gen. Stat. §§ 53a-59(a)(3)(No. 06N-217709); and (4) On or about September 30, 1983, Suggs was convicted of Conspiracy to Commit Robbery in the First Degree in violation of Conn. Gen. Stat. §§ 53a-48(a) and 53a-134 (NIdo. . CR6-213209). ( at 5.) Counts 1 and 2 were severed from Count 3 for trial; Petitioner was convicted oIfd C.ount 1 and 2 by jury verdict on June 14, 2000, and pled guilty to Count 3 on June 20, 2000. ( at 4.) Based on the prior felony information filed by the Government, Court imposed a sentence of life imprisonment for both Counts One and Two, and thirty years imprisIodn. ment on Count Three; both Counts Two and Three were ordered to run consecutively. ( at 5.) The Court did not specify at sentencing whether it found that his primary conviction or predicate offenses relied on the definition of serious violent felony offense found in the enumerated offense, elements, or residual clause, and the Presentencing Report was See United States v. Suggs, similarly silent on the issue. ( 3:99-cr-00244-JBA, Sentencing Tr. [Doc. #B 1.1 5D]i; rPeectt’ rA’sp Mpeeaml. ainn dS uPprpioorrt P oeft §it 2io2n5s5 Petition, [Doc. # 12] at 4.)

Petitioner filed a direct appeal that primarily challenged the Court’s ruling on his pretrial motions, certain jury instructions, and the sufficiency o f the evidence that money was stolen during the robbery. (Gov’t’s Mem. in OppU’nn i[tDedo cS. t#a t5e]s avt. S5u-6g.g)s The Second Circuit rejected each challenge and affirmed the judgment. , 14 Fed. App’x. 54, 55-57 (2d Cir. July 5, 2001) (summary order). Following his direct appeal, Petitioner filed three petitions pursuant to 28 U.S.C. § 2255. The first challenged “the § 3559(c) sentencing enhancement imposed based on his prior convictions, the district court’s subject matter jurisdiction, a portion of the government’s closing argument, and the district court’s suppression ruling.” (Gov’t’s Mem. in Opp’n [Doc. # 5] at 6.) This Court denied the Imd.otion, and neither this Court nor the Second Circuit issued a certificate of appealability. ( ) The Second Circuit also denied authorization to file a second petition seeking to raise an ineffective assistance of counsel claim and challenging the convictions serving as predicates for the sentencing enhancement under § 3559(c), and a third petition, which sought to construe an amended judgment issued to correct a typographical error as a new judgment allowing for the filingI do.f another § 2255 petition without being subject to the successive petitionC .r esPtrroiccteiodnusr. a(l Hiastt 7o.r)y of the Current Petition

Petitioner fiJloehdn as o§n 2255 petition on June 26, 2016, within Soenee U yneitaerd o Sft tahtees S vu. pSruegmgse, Court’s decision in , as required by 28 U.S.C. § 2255(f)(3). ( 1 3:16-cv-1073, Mem. in Supp ort of Pet. (“2016 Mem.”) [Doc. #1].) At Petitioner’s request, 1 Petitioner’s motion was initially filed June 26, 2016 under the case number 3:16-CV-1073 (JBA); after the Second Circuit granted the motion to file the successive petition, it was refiled proceedings on the petition were stayed pending the Second CircuiSte’se ruling on his motion to authorize a successive petition, which he filed on May 25, 2016. ( 3:16-CV-1073 (JBA),

[UDnoitce. d# S 4t]a.)teTsh ve. HSeilcl,o nd Circuit in turn stayed its rul ing oUnn Piteetdit Siotanteers’ sv .m Boatriroent tu, ntil it decided 890 F.3d 51, 60 (2d Cir. 2018),and 937 F.3d 126, 129–30 (2d Cir. 2019), both of which addressed whether certain Hobbs Act convictions qualified as crimes of violence under 18 U.S.C. § 924. (Gov’t’s Mem. in Opp’n [Doc. # 5] at 8.) After both were decided, Petitioner filed another motion on February 28, B2a0r1r9et tto, stay the proceedings while a writ of certiorari to the SuUpnrietemde S Ctaotuerst vw. aDsa pveisn. dIind.g in and after a writ had been granted in the related case Barrett ( at 8-9.) On June 28, 2019, the SDuparveism. eI dC. ourt vacated and remanded to the Second Circuit in lighBta orfr eittst decision in ( aIdt .8.) The Second Circuit subsequently issued a new decision in on August 30, 2019. ( ) On November 14, 2019, Suggs filed a brief with the Second Circuit in which he focused his arguments on the underlyiIndg. Connecticut convictions that had served as predicates for his sentence enhancements. ( at 9.) On May 5, 2020, the Second Circuit granted Petitioner’s motion for leave to file a successive petition on three grounds: Johnson, Dimaya Davis See, e.g United States v. Morrison First, the § 3559(c)(2)(F)(ii) risk-of-force clause may be unconstitutional after [ , and ]. ., , 751 F. App’x 1026, 1D0im27a y(a9th Cir. 2019) (vacating denial of § 2255 motion and remanding to district court to reconsider whether § 3559(c)(2)(F)(ii) is unSceoenstitutionally vague after ). Second, Petitioner’s July 28, 1989 convictions identified in the § 3559(c) information likely cannot count as separate predicates. 18 U.S.C. § 3559(c)(1)(B) (providing that the second “violent felony or serious drug offense used as a basis for sentencing” must have been committed after conviction for the first). ThirdSe, heisU 1n9it8e3d Scotantveisc tvi.o Bnasr mreatyt not satisfy the § 3559(c)(2)(F)(i) enumerated offenses clause or the § 3559(c)(2)(F)(ii) force-clause definition of “serious violent felony.”

, 937 F.3d 126, 129–30 (2d Cir. 2019) (conspiracy to commit Hobbs Johnson petition relied on slightly more expansive grounds for relief, both petitions rely primarily on the retroactive effect of ; the cases are now consolidated. Unless otherwise indicated, citations to the “petition” refer to the 2020 petition. United States v. Moreno Act robbery does not satisfy the 18 U.S.C. § 924(c)(3)(A) force clause); , 821 F.3d 223, 228 (2d Cir. 2016) (first-degree assault under Conn. Gen. Stat. § 5S3uag-g5s9 v(.a U)(n3it)e ddo Setsa nteost satisfy the 18 U.S.C. § 16(a) force clause). Order, , No. 16-1671 (2d Cir. May 5, 2020) at 2. Petitioner filed a petition for relief on the above grounds on May 5, 2020. (Petition, [Doc. # 1].) However, on November 20, 2020, Petitioner moved to stay relief pending a ruling o. nS heeis motion for sentencing relief under 18 U.S.C. § 3582(c)(1)(A), which this Court granted ( [Doc. # 19].) On June 28, 2021, the Court granted in part the motion for sentencing relief and reduced Petitioner’s life sentence to 260 months, followed by eight years supervised release; his projected release date is now February 16, 2027. (Pet’r’s Mem. [Doc. # 12] at 1.) Briefing on the IpIe. tiLteiogna lc oSntacnluddaerdd o n October 14, 2022. Section 2255 permits collateral challenges to the constitutionWalaitltyo onf vt.h We iilmliapmossition of a federal sentence and is the proper vehicle for such challenges. , No. 3:18-CV-1993 (MPS), 2021 WL 3292650, at *1 (D. Conn. Aug. 2, 2021). Collateral relief under § 2255 is available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact Uthnaitte cdo Sntsattietus tve. sB o‘ak ufunndamental defect which results in a Hcoilml vp.l Uetnei tmedis Sctaartreiasge of justice.’” , 73 F.3d 8, 12 (2d Cir.1995) (quoting , 368 U.S. 424, 428 (1962). However, even constitutional errors will only serve as the basis for granting a § 2255 petition if they haBvere ac h“ts uvb. Astbarnathiaalm asnodn injurious effect” that resulteUdn idne “rawcotuodal v p. rUenjuitdedic eS”t attoe sthe petitioner. , 507 U.S. 2 619, 623 (1993) ; , 166 F.3d 84, 87 (2d Cir. 1999). While § 2255 petitions cannoCta bber eerma pv.l oUyneitde dto S t“aretelistigate questions which were raised and considered on direct appeal,” , 972 F.2d 23, 25 (2d Cir. 1992), a court may reconsider

Unless otherwise indicated, internal citations, quotation marks, and other alterations are omitted throughout in text quoted from court decisions. an earlier decision if “confronted with ‘an intervening change of controlling law, the availabilityU onfi tende wSt aetveisd ve. nBceec, koerr the need to correct a clear error or preUvneintet dm Staantiefes svt. iTnejnuzsetirce.’” , 502 F.3d 122, 127 (2d Cir. 2007) (quoting , 213 F.3d 34, 39 (2d Cir. 2000)). PetitiNoanpeorl bi ve.a Ursn ittheed bSutartdeesn of proving he is entitled to relief by a preponderance of the evidence. , 45 F.3d 680, 683 (2d Cir. 199I5II).. D iscussion

Petitioner was sentenced under 18 U.S.C. § 3559(c), which requires the court to sentence a defendant to life imprisonment if he or she is convicted of a “serious violent felony” after conviction for “2 or more serious violent felonies” on “separate prior occasions” in federal or state court under Section (c)(1). Section 3559 (c)(2)(F) sets out three alternative definitions of “serious violent felony.” First, § 3559 (c)(2)(F)(i) enumerates a list of specific offenses that automatically qualify as a serious violent felony, including robbery under 18 U.S.C. § 2111 and 2113; this is known as the “enumerated offense” clause. Second, Section 3559 (c)(2)(F)(ii) defines a serious violent felony as “any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another[;]” this is known as the “elements/force” clause. Third, Section (ii) also defines a crime as a serious violent felony when it “by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense[;]” this is known as the “residual” clause, and is the clause at issue in this case. As a threshold matter, the Government argued—for the first time at oral argument after three years of briefing—that the petition should be dismissed because even if it is granted, after his sentence was already reduced by the Court in June of 2021, it is unclear whether a second resentencing would or couldR roeasuchlt vin. C aonn wevaeyn lower sentence. However, the Government’s argument is undermined by , No. 05-CV-6500, 2009 WL 4572730, at *3 (W.D.N.Y. Dec. 7, 2009), finding that even if the petitioner had been released from prison while his petition was pending, if his sentence caused any collateral consequences, there would still be a case or controversy requiring nreos olution. Petitioner maintained at oral argument that there is no guarantee that there are potential collateral consequences to Petitioner from having been sentenced under the Three Strikes Act. Given this unknown, the Court will address the petition on its merits. Petitioner’s challenge to his sentence arises out of several Supreme Court decisioSnees iJnohtenrsporne tvi.n gU nsiimtedil aSrt “arteessi, dual” clauses a nd findi nSge stshieomns tov. bDei munacyoan, stitutionally vague. United States v. Da5v7is6, U.S. 591 (2015); 138 S. Ct. 1204, 1207 (2018); 139 S. Ct. 2319 (2019). In all three cases, the clauses required use of the “categorical” approach to determine whether the offense fit the definition of serious violent felony; that approach required the court to “assesses whether a crime qualifies as a violent felony in terms of how the law defines the offense and noJto ihnn tseornm, s of how an individual offender might have committed it on a particular occasion.” 576 U.S. at 596. The combination of the categorical approach and the ambiguous language in the residual clauses created uncertainty for district courts as to how they should evaluate whether a crime “by its nature” involved such a risk, and Iwd.h at “substantial risk” meant in the abstract sense associated with an “ordinaJroyh ncsroimn,e .” Based on this uncertainSetyss, iothnes SuprDeamveis C, ourt found the residual clause in and the two similar clauses in and to be unconstitutional. Section 3559(c)(2)(F)(ii)’s resiJdouhanls colnau, Dseim isa nyeaa, rly idDeanvtiisc;a3 l to the ones the Supreme Court found were unconstitutional in and it also requires courts to determine what constitutes “substantial risk” of force “by its nature” without reference to

3 Johnson. The Government confirmed at oral argument that it does not challenge Petitioner’s contention that the residual clause is unconstitutional post See Deida v. United tShtaet feasc, ts of the actual crime committed using the categorical approach. vacated and remNaon. d3e:1d3 o-nC Vo-t1h6e0r 8g r(oSuRnUd)s, 2017 WL D2a6v6i1s 622, at *10 (D. Conn. June 20, 2017), . Because makes clear that a residual clause requiring a categorical approach cannot be sustained as constitutional, the Court concludes that § 3559(c)(2)(SFe)e(i Ui)n’si treeds iSdtuatael sc vla. uGsoeo disr iudngceo, nstitutional. Other courts have reached the same conclusion. 392 F. Supp. 3d 159, 174 (D. Mass. 2019)(holding that § 3559(c)(2)(F)(ii)’s residual clauJsoeh nwsaosn uncoDnismtiatuytaionUanl ibteedc aSutastee ist v s. uMffieltroend from the same defects as the residual clauses in and ); appeal dismissed , No. 5:95- CR-70074, 2021 WL 1554384, at *13 (W.D. Va.a Anpdr .a 2p0p,e 2a0l 2d1is)m, issed , No. 21-7316, 2022 WL 2355508 (4th Cir. June 30, 2022), , No. 21-7316, 2022 WL 2355508 (4th Cir. June 30, 2022) (same). Petitioner asserts that because § 3559(c)(2)(F)(ii)’s residual clause is unconstitutional, his sentence cannot be sustained. However, his prior convictions can still serve as predicate offenses if they meet the definition of “serious violent felony” under the remaining two alternative definitions in § 3559(c)(2)(F)(i) or (ii)—the enumerated offense clause and the force/elements clause—and so the Court will evaluate whether each prior 4 convictAio. n Qfaullasl iwfyitihnign Peritihoerr C aoltnevrincattiiovnes d efinition.

4 Petitioner’s counsel represented at oral argument that he is not pursuing his initial argument that his primary conviction for HoSbebes U Ancitte rdo Sbtbaetersy vd. oHeilsl , not qualify as a serious violent felony. In fact, Hobbs Act robbery qualifies as a serious violent felony under either the elements or enumerated offense clauses. United 8S9ta0t Fes.3 dv. 5H1,o 6w0a (r2dd Cir. 2018) (finding that Hobbs Act robbery has as an element use, attempted use, ocre trhtirfeicaateten eodf aupsep eoafl apbihliytsyi cdaeln ifeodrce for purposes of 18 U.S.C. § 924); , No. 213CR00186GMNVCF1, 2021 WL 5988540, at *4 (D. Nev. Dec. 16, 2021), , No. 22-15040, 2022 WL 2700324 (9th Cir. June 24, 2022) (denying a § 2255 petition to overturn a life sentence pursuant to § 3559(c) because petitioner’s Hobbs Act robbery conviction fell within the purview of the enumerated offense clause). Petitioner does not contest the Government’s argument that his July 28, 1989 conviction for Assault in the First Degree is a sufficient predicate under 18 U.S.C. § 3559(c), (Pet.’s Mem. [Doc. # 12] at 5), nor does the Government challenge Petitioner’s assertion that his July 28, 1989 convictions for Attempted Assault in the First Degree and for Attempted Robbery in the First Daeftgerre e cannot be sufficient predicates because any qualifiable predicate “must be committed thIde. defendant has been sentenced for previous predicates” under 18 U.S.C. § 3559(c)(1)(b). ( at 6.) The only disagreement is over whether Petitioner’s two remaining convictions—conspiracy to commit robbery and first-degree assault under Conn. Gen. Stat. § 53a-59(a)(3)—qualify. Petitioner argues that neither conviction meets the definition of serious violent felony under either §. 3Id5.59 (c)(2)(F)’s enumerated offense or force/elem1e.n tNs oclvaeumseb; ethr e1 G8o, 1ve9r8n3m Ceonnt vdiicstaigorne efosr( As)s a ult in the First Degree Id. Petitioner was convicted of assault in violation of Conn. Gen. Stat. § 53a-59(a)(3). ( at 5.) Section 53a-59(a)(3) defines assault as being in the first degree when committed “under circumstances evincing an extreme indifference to human life [the defendant] recklessly engages in conduct which creates a risk oIfd d. eath to another person, and thereby causes serious physical injury to another person.” Petitioner argues that because this definitiBoonr deennc,o mpasses reckless conduct, it cannot serve as a qualifying predicate offense under which held that “mvieonles nrte afelony” in the ArmBoerdd Cena rve. eUrn Citreidm Sintaatle Asct did not include criminal offenses with a of recklessness. , 141 S. Ct. 1817, 1825 (June 10, 2021). Borden The Government argues that applied only to ordinary recklessness, and that the plurality did not address offenses involving “extreme recklessness,” the mental state defined by § 59(a)(3). (Gov’t’s First Response [Doc. # 13] at 7.) In the Government’s view, recklessness did not satisfy the requirements of ACCA’s elements clause because the phrase “against” another means that the victim must be the “conscious object” rather than the “mere recipient” of the force, which cannot be reconciled with reckless conduct that is “not directed or targeted Iadt. another” but instead implies “insufficient attention to the potential application of force.” ( at 8.) Extreme recklessness, the Government argues, can be distinguishide.d because iUt nrieteqdu Sirteast e“ss vu.b Bjáecetzi-vMea arwtinaerzeness of the extreme risks the conduct poses,” ( ) (quoting , 9I5d0. F.3d 119S,t 1a2te7 v(.1 Bste sCtir. 2020)), and is “more akin to knowledge” under Connecticut law. ( ) (citing , 745 A.2d 223, 231 (Conn. App. 2000)). Borden However, while the Government is correct that focused on the structure and text of the clause in finding that the word “against” required a “conscious object” of the perpetrator’s force, it also looked to the purpose and general understanding of what a “violent, active crime” is, i.e. “best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—Bao dredleibne, rate choice of wreaking harm on another, rather than mere indifference to risk.” 141 S. Ct. at 1830. Thus, in considering whether the Connecticut definition of “extreme indifference to humaBn olrifdee”n i’ss sufficient to constitute a “serious violent felony,” the Court focuseSst aittse avn. aBlyusnikse orn, distinction between deliberate choice and mere indifference. In 27 Conn. App. 322 (1992), the t rial court’s jury instruction that “extreme indifference to human life” as used in § 59(a)(3) was eSqtautiev avl. eSnpta tteos ’“a high degree of disinterest to human life” was affirmed. Relying in part on definition of “extreme indifference to human life” in the context of a murder statute and its instruction that “mere careleBssunneksesr is not enough, nor is ordinary recklessness enough. . . . [and] intent is not necessary,” characterized extreme indiffeIdr.e nce to human life as “one step further toward culpability than ordinary recklessness.”S pataet 326-B2u7n (kceirti, ng to 176 Conn. 227, 236-37 (1978)). Under and degtrheee Government’s construction of § 59(a)(3) cannot prevail since “extreme” modifies the of indifference that is required but does not transform that indifference into a “deliberate choice” to make the victim a “conscious object” of the fSoerec ea,l saon dU nisit tehdu Sst natoets r ve.c Monocrielanbol,e with § 3559(c)(3)’s definition of “serious violent felony.” 821 F.3d 223 (2d. Cir. 2016) (a conviction for attempted reckless assault under Conn. Gen. Stat. § 53a-60(a) was legally impossible because recklessne[si]sn wteanst idoenfainlliyt ionally incompatible with the fact that attempt can only occur when a person “ engage[s] in conduct which would constitute the crime”) (emphasis added). Petitioner’s November 18, 1983 conviction for assault in the first degree is thus not a predicate offense for purposes of his life sentence, and his sentence can only be upheld if the Court finds2 t.h aSte hpitse cmonbveirc t3io0n, 1fo9r8 c3o Cnospnivraicctyi oton cfoomr Cmoint sropbirbaecryy tiso aC pormompeirt pRroebdbiceartye .i n the First Degree

The Government contends that Petitioner waived any argument on this conviction’s eligibility under on § 3559(c)(3)(A) by not raising it at sentencing. (Gov’t’s First Response [Doc. # 13] at 6a,. nC.3o.)n spiracy to Commit Robbery as a Serious Violent Felony Offense

Petitioner initially argued in his 2016 petition that his prior convictions did not qualify as serious violent felonies under the enumerated offense or elements clauses of 18 UU.Sn.iCt.e d§ S3t5at5e9s( vc.) S buegcgasu, se they “do not constitute generic versions of any listed crimes.” ( 3:16-cv-1073, 2016 Mem. [Doc. # 1] at 4.) Petitioner appears to have abandoned the argument that conspiracy to commit robbery is not a serious violent felony, as his more recent focus in his briefing is oSene h ei.sg c.o nviction as falling under an exception for nonqualifying felonies, § 3559(c)(3)(A). ( , Pet’r’s Reply [Doc. # 14].) However, in an abundance of caution, the Court’s opinion addresses whether the offense itself falls within either remaining definition of “serious violent felony” in U.S.C. § 3559(c). Connecticut defines conspiracy as “when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy” under Conn. Gen. Stat. § 53a-48. Robbery is defined in Conn. Gen. Stat. § 53a-133 as “when, in the course of committing a larceny, [the defendant] uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” Section 53a-134 specifically defines robbery in the first degree: A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . The Government contends that because Connecticut’s definition of robbery under § 53a-133 and 134 “largely track” the federal definition of robbery, conspiracy to commit the same similarly qualifies as a serious violent felony under the enumerated offense clause because under § 3559(c)(2)(F)(i), the enumerated offense clause “identifies any robbery in violation of [the federal statute], or an inchoate version of such a robbery—namUenlyit, eadtt Setmatpets, cvo. Snnsyppireacy, or solicitation to commit the offense—as a serious violent felony.” , 441 F.3d 119, 144 (2d Cir. 2006)). Robbery under Conn. Gen. Stat. § 53a-133 has the same essential elements as robbery under 18 U.S.C. § 2111 and 2113, which are both identified as serious violent felonies in § 3559(c)(2)(F)(i); both require the use or threat of immediate use of force toC toamkpe aorer overcome resistance to the taking of the victim’s property or other thing of value. 18 U.S.C. § 2113 (when a person “by force and violence, or bwyi itnht imidation, takes, or attempts to take, from the person or presence of another . . .”) Conn. Gen. Stat. § 53a-133 (requiring that the person “uses or threatens the immediate use of physical force upon 5 another” in commission of the offense). Other Sceoeu Srhtsa beavzazl uva. tUinngi tesdim Sitlaartelys , worded state statutes have re ached similar conclusions. 912 F.3d 73, 78 (2d Cir. 2019) (holding that robbery under Conn. Gen. Stat. § 5)3; -S1n3y3p ew, as a violent crime for purposes of the ACCA and could serve as a predicate offense 441 F.3d at 144 (finding the elements of a New York statute defining robbery as “forcible stealing” when the person “uses or threatens the use of physical force,” were “parallel” to “those required to establi sUhn ritoebdb Setrayt”e us nvd. eWr i1c8ks U, .S.C. § 2111 and 2113, qualifying them as serious violent felonies”); 132 F.3d 383, 387 (7th Cir. 1997) (holding that Illinois’ statute, which defined robbery as “when he or she takes property [except in cases involving a motor vehicle, which are covered by a different statute], from the person or presence of another by the use of force or by threatening the imminent use of force” was “consistent with the definition of robbery 6 provided in 18 U.S.C. §§ 2111, 2113, and 2118.”) Thus, the Court finds that Defendant’s

5 The commentary on § 53a-133further highlights that the conduct both statutes seek to reach is the same: “[t]his section defines robbery [as] larceny accompanied by force o6 r threat. . . . [t]he basic rationale isB aprrroettetction against the terror of the forcible taking.” Conn. Gen. Stat. § 53a-133, Commission Comment. While the Second Circuit referenced , 937 F.3d 126 in its grant of PetitBioanrerert’st motion for leave to file a successivBe a2r2r5et5t petition as suggesting that this conviction for conspiracy to commit robbery might not qualify as a serious violent felony, is inapplicable. The analysis in centered on an evaluation of whether conspiracy to commit Hobbs Act robberDya viws, as a violent felony under § 924(c)(3)(B); the court held that did not qualify under thIed .h ybrid eBlaemrreetntt s and residual clause analysis it had applied prior to and could not be qualified as a categorical crime of violence under the elements clause alone. at 129. never reached the question of whether conspiracy to commit robbery would have met the definition of violent felony based on an enumerated offense clause, because § 924(c)(3) had no such clause; as such, its holding does not preclude a finding to the contrary when evaluating the separate statutory provision in § 3559(c)(2)(F)(ii). conviction for conspiracy to commit robbery meets the definition of a serious violent felony unless he can sbh. ow§ 3o5th5e9r(wc)is(e3 )u(nAd)e Er xthcee petsicoanp ea nvdal vWe apirvoevri s ion of § 3559(c)(3)(A).

Petitioner argues that even if conspiracy to commit robbery qualifies under § 3559(c)(2)(F)(i) as a serious violent felony, it falls under the exception in 18 U.S.C. § 3559(c)(3)(A), which states: (A) Robbery in certain cases. Robbery, an attempt, conspiracy, or solicitation to commit robbery; or an offense described in paragraph (2)(F)(ii) shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that[:]

(i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense; and

(ii) the offense did not result in death or serious bodily injury (as defined in section 1365) to any person.

The Government contends Petitioner has waived any aSregeu ment as to the applicability of 18 U.S.C. § 3559(c)(3)(A) by not raising it at sentencing. ( Gov’t’s First Response at 6 7 [Doc. # 13], n.3). However, courts have considered the applicability of § 3559(c)(3)(A) in either an appeal or habeas motion without first evaluating whether the argument was initially raised at sentencing, instead considering whether the facts in theS eree Uconritde da sS ttahteeys existed at sentencing would warrant a finding that § 3559(c)(3)(A) applies.

7 United States v. SuAgtg sse, ntencing, the Court asked for confirmation that there was no “objection from either side on the guideline analysis andA apppprleincadti,i on in that regard.” ( Apprendi 3:99-cr-0244, Sentencing Tr. at 4.) Defense counsel confirmed that his only objection was as to the applicability of and his argument that if were extended, the prior offensIeds. should be disregarded since they were neither pled in the charging document nor determined by a jury, which would change the m aximum statutory penalty. ( ) There was no mention of the applicability of 18 U.S.C. § 3559(c)(3)(A). v. Bush , No. CR 5:21-0039-DCR, 2022 WL 2110320, at *5 (E.D. Ky. June 10, 2022) (evaluating whether a defendant met the requirements of § 3559(c)(3)(B), the analogous nonqualifying felony provisRioicnh iftoerl lai rvs. oUnn, itdeeds pSittaet eesxpressly finding that the defendant never raised it at sentencing); report and recommend, aNtoio. n0 9a-d6o0p2t2e9d-CR, 2016 WL 9132037, at *2 (S.D. Fla. Oct. 25, 2016), , No. 09-60229-CR, 2016 WL 9131794 (S.D. Fla. Dec. 6, 2016) (considering application of § 3559(c)(3)(A) even when not specifically raised at sentencing.) Because DefJeonhdnasnotn , would have had no reason to raise the applicability of § 3559(c)(3)(A) pre- the Court concludes that Defendant has not waived any arguments undc.e r N§ o3n5q5u9(acl)if(y3i)n(Ag )F. e lonies under § 3559(c)(3)(A)

The burden is on PetitioneSre teo U snhiotewd tShtaatt eesa vc.h K ealelumnean, t of § 3559(c)(3)(A) is met by “clear and convincing§” evidence. 192 F.3d 1188, 1195 (9th Cir. 1999) (holding that 3559(c)(3)(A) “is a kind of affirmative defense to the use of certain prior violent felonies as a sentencing factor.”) Petitioner must show botShe eth Uatn ittheedr eS twaatess n vo. wWeaasphoinng tuosned, and that no threat of use of a weapon was involved. , 109 F.3d 335, 337 (7th Cir. 1997) (holding that it was not enough to merely show that there was no use of a weapon if the use of a weapon was threatened.) Petitioner asserts based on§ facts in the record at sentencing that “Mr. Suggs’s 1983 conspiracy conviction is outside [ 3559’s] definition of serious violent felony” and firUeanritmeds wSteartee sn ve.v Gero t“tuliseebd,” or threatened” un der the meaning of the terms as construed in th , 140 F.3d 865, 871 (10 Cir. 1998) because no robbery occur[ed], “the offense did not result in death or serious bodily injury,” and “no potential victim was ever identified,” so “[t]here can have been no ‘threat’ to a possibility of a future victim.” (Pet’r’s Mem. [Doc. # 12] at 7); Pet’r’s Reply [Doc. # 14] at 5.)Because the terms “use” and “threat of use” in § 3559(c)(3)(A) undefined by either the statute itself or by the Second Circuit, the Court will first die.t er“mUisnee” w ahnadt “mTeharneiantg o tfo U gsivee” them. Gottlieb In , the defendant was subject to the same sentencing enhancement as Petitioner under 18 U.S.C § 3559(c) for two prior convictions, Goontet loief bwhich was a conviction for “conspiracy to obstruct and affect commerce by robbery.” , 140 F.3d 866-67. The defendant had conspired with two undercoverI da.g ents to abduct two individuals and leverage them as hostages to extort a bank president. at 866-67. The undercover agents testified that they offered defendant a (nonfunctional) firearm because during the planning oIdf .t he conspiracy, he expressed a desire to have one; when he reached for it, he was arrested. To determine whether the defendant’s conduct met the requirements of a nonqualifying felony under § 3559(c)(A), the Tenth Circuit first evaluated whether the defendant had “used” a firearm or dangerous weapon in the offense, defining the term as requiring “active employment” of a firearm. The court recognized that “[w]hen the underlying crime is an inchoate rather than a substantive offense, application of [its] definition of ‘use’ is more difficult,” but found there that the defendant did not use a firearm because he was arrested “before he even touched the firearm in question,” and the fact that he “attempted to acquire and intended to possess a firearm duIdr.i ng the planned but frustrated robbery” was not enough to show active employment. at 872. As for whether “threat” of use had been “involved”, the court declined to find whether the term solely meant “a communicated intent to engage in a harmful act against someone or something,” or whether it could also mean “risk of use” because under either construction, the firearmId w. as in “sole control of the federal agents” at all times, and thus never posed a threat of use. at 872-73. Determining whether PetitionerG’so tctolinebv iction involved “threat of use” of a firearm requires resolution of the question that left unanswered: whether “threat of use” can 8 be read to mean “risk of use.” The Government summarily asserts that based on the facts, the record “plainly shows that there was a threat that a firearm would be used in the offense.” (Gov’t’s First Response [Doc. # 13] at 6.) Petitioner construes the Government’s argument to include in the definition of “threat” either “an indication of an approaching menace; the suggestion an impending detriment” or “a person or thing that might well cause harm,” which are the second and third definitions listed for “threat” in Black’s Law Dictionary. (Pet’r’s Reply [Doc. # 14] at 4-5.) Petitioner argues “threat” should be narrowly construed using only the primary definition given to it in Black’s: “A communicated intent to inflict harm or loss on another or another’s property. . .[,]” When both parties “rely on a reasonable meaninUgn”i otef da Ssttaattuetse v, .c Doauurtrsa ryesort to canons of statutory interpretation to help resolve ambiguity. , 215 F.3d 257, 262 (2d Cir. 2000). The Court begins by looking at the statutorDya lnainegl uva. Agem b. oBtdh. ionf tEhme ecrognetnecxyt 9 iMt eisd .used, and in broader context of the statute as a whole. , 428 F.3d 408, 423 (2d Cir. 2005). Section 3559(c)(2)(f)(i), the part of the statute listing

8 . The parties dGoo tntloiet bd,i sagree over defining “use” as active employment 9 As noted in the legislative history of the escape valve’s inclusion does not provide clear guidance. On one hand, the original text of § 3559(c)(3)(A)(i) required that no firearm be “involved” in the offense, which would result in a much broader category of defendants failing the 3559(c)(3)(A)(i) requirements. On the other hand, the representatives speaking in favor of the amendment appeared to be under the impression that they were clarifying any ambiguity that “involved” might have created, and suggested that the new language was meant to “strengthen[ ] the bill by incresaesein agl stoh e number of repeat Dofeffeinnidnegr tsh seu Sbtjreickte tZoo tnhee- athnr eAen asltyrsikise so”f athned C“lcalsossi[fiicnagt]i olono opfh Porleiosr wChoincvhi cmtioanys hUanvdee rb etehne lFeefdt eorpael n".T” h1re4e0- SCtroinkge.s Raencd. HYo2u4'1re5 ,O Hu2t"4S3c2h (edmaeily ed. Apr. 19, 1994); R. Daniel O'Connor, , 36 B.C. L. Rev. 847, 877 (1995) (although “[n]o legislative history exists explaining why the House of Representatives employed a collateral review provision,” the “floor debate accompanying a House amendment to the collateral review subsection indicates that Congress generally desired to sharply focus the three-strikes law to remove tGhootstleie ibndividuals who repeatedly threatened their fellow citizens.”) Although the Court views this history as seeming to weigh slightly in favor of a broader interpretation, as in and specific crimes that qualify as serious vinooletn t felonies, includes both firearms use firearm possession. Firearm possession is also listed as one of the offenses that can be classified as a nonqualifying felony under the exception in § 3559(c)(3)(A)(i). The Court reads the interaction between these two sections to mean that that the presence of firearms alone, within the meaning of the statute, is viewed as creating a significant risk of harm, and weighs in favor of a broader definition of “threat” as “a person or thing that might well cause harm.” Another canon that aids the Court’s interpretation is the “anti-surplusage” canon, which dictDatuensc tahna tv .i Wt isa lak ecrourt’s “duty to give effect, if possible, to every clause and word of a statute,” , 533 U.S. 167, 174 (2001)S, taantde Swth. Beann pko &ss Tibrl. eC,o t.o v “. aSvaoloidv asatartautory interpretations that render provisions superfluous,” , 326 F.3d 130, 13o9r (2d Cir. 2003). § 3559(c)(3)(A) contemplates that “[r]obbery, an attempt, conspiracy, solicitation to commit robbery” (emphasis added) are all offenses that can fall under the nonqualifying felony exception. This creates two options: each crime may either be a serious violent felony that nevertheless meets the requirements for the escape valve in § 3559(c)(3)(A)(i), or it is both a serious violent felony and a crime that fails § 3559(c)(3)(A)(i)’s requirements. While it might seem that the Court is stating the obvious, tahlwesaey stwo scenarios are critical for understanding that if a conspiracy to commit robbery met the requirements of the escape valve and could never fail to meet them, its inclusion in both § 3559(c)(2)(f)(i) and § 3559(c)(3)(A)(i) would be surplusage. Consider the following scenario: a sentencing court finds that a defendant has a predicate offense of conspiracy to commit robbery, which qualifies as a serious violent felony because it is listed in § 3559(c)(2)(f)(i). The court moves on to determine whether the offense met the criteria for the escape valve of § 3559(c)(3)(A)(i); if conspiracy to commit robbery cannot ever involve a use or threat of use of firearms because of the way “use” and “threat of use” are defined, it will automatically qualify for the escape provision, and the court will forever reach the same result each time it goes through this process. The Court thus approaches the analysis with a recognition that any definition of “threat of use” or “use” must avoid reading the statute in a way that would require such an exercise in superfluity. The canon against surplusage also requires that each crime, on its own, must be able to meet or fail § 3559(c)(3)(A)(i)’s requirements without merging into the commission of another crime; for example, if conspiracy to commit robbery only reaches the level of involving use or threat of use of firearms when it would also qualify as attempt, there would be no need to include conspiracy as part of the list. This is exactly the sctoen aa vriicot icmreated by Petitioner’s proposed definition osef et hGroetattli—eb",a communicated expression that the defendant would use a firearm,” 140 at 872— because by the time a conspiracy reaches the point of communicating an intent to use a firearm to a victim, it is no longer simply conspiracy; it is either robbery or attempted robbery. Consider an example: a defendant is convicted of conspiring with other individuals to rob a bank. Every participant was carrying a semiautomatic rifle, and in the past, these same individuals all fired guns and injured bank tellers while committing bank robberies. He believes they are likely to do so again in this instance. However, their car will not start, and so they never reach the point of choosing a bank to rob or making any substantial steps towards the robbery itself. Using Petitioner’s definition, the defendant would qualify for the escape provision of § 3559(c)(3)(A), because he would not have committed a crime in which there was a “threat of use” of force, despite the fact that his coconspirators had every intention of going into a bank and firing at bank tellers if not for their bad luck. If the defendant had gone further, however, and actually threatened the bank teller with the firearm to hand over money, it would be robbery (if the teller complied) or attempted robbery (if the teller refused). This example is not an anomaly; at oral argument, Petitioner’s counsel could think of no example of an instance in which a defendant could conspire to commit robbery in a way that involved a threat of use of force as Petitioner defined it without also having committed either attempted or actual robbery. In other words, Petitioner’s definition creates a scenario in which so long as the defendant stops short of committing actual or attempted robbery as part of their conspiracy, he or she will always qualify for the escape provision, creating the very problem of surplusage envisioned by the Court at the start of this analysis. The reading becomes even more strained when considering solicitation to commit robbery; it is difficult to envision a scenario in which solicitation to commit robbery, standing alone, would involve a communicated intent to use a firearm against a victim. A definition of “threat” that makes both conspiracy and solicitation automatically qualify for the escape provision when standing alone, and which thus makes their presence in the larger statutory scheme as serious violent felonies entirely unnecessary, runsS ctoantetr Satr. yB taon tkh &e CToruurstt’ Cs od.u vt.y S “atloo vgaivaer aeffect, if possible, to every clause and word of a statute.” , 326 F.3d 130, 139 (2d Cir. 2003). Petitioner’s argument that adopting the Government’s definition would mean any “threat” of violence in the “disembodied possibility sense” wouGlodt tbliee bs ufficient to make a crime fail the § 3559(c)(3)(A) requirement lacks merit. First, explained defining “threat” to encompass “risk of use” still requires evaluation of “the demonstrated risk that a firearm will be used in a particular offense” rather than the assumption that a risk exIidst. ed based on the “general risk inherent in all violent crimes Bthoradt ean f irearm may be used.” at 872-7 3. Second, contrary to Petitioner’s interpretation, did not hold in the general sense that “the use or threat of force must be an action taken, not a looming possibility of force detached from any human action.” (Pet’r’s Reply [Doc. # 14] at 5.) Rather, in evaluating the elements clause of the ACCA, it held that“[t]he phrase [in the ACCA] ‘against another,’ when modifying the ‘uBsoer doef nfo, rce,’ demands that the perpetrator direct his action at, or target, another individual.” , U.S. 141 S. Ct. at 1825. Unlike the elements clause of either § 3559(c)(2)(F) or the ACCA however, § 3559(c)(3)(A) does not modify “use” or “threat of use” with the phrase “against another”; rather, it uses more general language such as “involved in the offense,” which bolsters rather than undermines the argument that a broader definition is warranted. Finally, Petitioner’s concern that to adopt the broader definition would be to “re- import the residual clause into the discussion of crimes of violence” is unwarranted, because the features that made the residual clause uncacotengsotritiucatilo nal were uncertainty over how to define and quantify risk when using the approach. Section 3559(c)(3)(A) explicitly requires the opposite by requiring defendant to offer proof specific to the facts of his case, as opposed to that of an “ordinary crime.” The Court thus finds that the definition of “threat” can encompass either “communicated intent” to use force, or the “risk of use” of force when evaliui.a tinAgp wphliectahteior nP ettoi tPioentietri’osn ceorn’vsi Cctoionnv iicntvioolnv e d a “threat of use” of force.

10 Petitioner relies on the Presentence Report’s recounting that he told Probation during the presentence investigation that “[t]he dude and they were getting ready to rob someone. I didn’t know they had guns in the car. I was riding around with them getting high,” (Pet’r’s Reply [Doc. # 14] at 5), to argue that beIdc.ause “no potential victim was ever identified,” Petitioner argues there was no threat. ( ) The Government, however, focuses on Petitioner’s statement made during the initial arrest “to the effect that he and the two others had agreed to do a robbery in the city and were looking for a victim when they were stopped,” and the fact that “a fully loaded sawed off shotgun, and a .22 caliber revolver” were recovered from the vehicle that Petitioner and his coconspirators were apprehended in, to argue support for a finding of a threat of use of firearms. (Gov’t’s Mem. in Opp’n [Doc. # 5] at 6.) 10 Petitioner confirmed at oral argument that neither party is requesting an evidentiary hearing and that both sides believe one is unnecessary. While Petitioner’s counsel raised the prospect of possible further investigation into the state court records of his conviction and supplemental filings, there have been no further filings since oral argument. United SCtoautretss v .h Pahvaen found that “’use’ takes on different mPheaann,i ngs depending on context.” , 121 F.3d 149, 153 (4th Cir. 1997). In for example, the court found that mere possession of a handgun with intent to use it during a robbery would not constitute use, but “[i]n the context of the inchoate crime of conspiracy to commit robbery,” “the giving of firearms to a fellow conspirator constitutes active employment.” Neither situation is present here, however;Petitioner was not found in possession of a firearm, nor is there any record suggesting that he was the one who provided or stored the firearms in the car. In other words, there is nothing to demonstrate that Petitioner “actively employed” and thus “used” a firearm for purposes of § 3559(c). However, under the definition of “threat of use” outlined above, it is equally clear that he cannot carry his burden of showing by clear and convincing evidence that no such threat was “involved in the offense.” The fact that Petitioner agreed “to do a robbery in the city” and was “looking for a victim” while in a car that had several loaded weapons is a substantial barrier to Petitioner’s providing “clear, direct, and weighty” evidence that allows the Court to make a determination inB lhaiisr vf.a Ivnosrid e“w Eidth. Poruotd hs.esitancy” as the clear and convincing evidence standard requireUsn. ited States v. Barnwell , 7 F. Supp. 3d 348,B 3a5r8n w(Se.Dll,. N.Y. 2014). Petitioner’s reliance on is misplaced. In defendant “assaulted two people while attempting to retrieve money he claimed one of the individuals owed to him,” but despite inflicting bruises and abrasions, “no one indicated Barnwell used or threatened to use a weapon,” and the indictment “ma[de] no mention of a weapon.” No. 3B:a2r0n-wCeRl-l6 23, 2021 WL 1964261, at *1 (N.D. Ohio May 17, 2021). The lack of evidence in contrasts with this case where there is evidence of weapons in the vehicle that Petitioner and his co-conspirators were driving around in looking for a victim to rob. Notwithstanding Mr. Suggs’ indication to the US Probation Office that he did not know that there were guns in the car, “the perthineent inquiry under § 3559(c)(3)(A) is not whether [defendant] can convincingly show that never used or threatened to use a firearm in the no participant course of the robbery conspiracy; it is whether hSen cyapne, show that in the conspiracy used or threatened the use of a firearm.” 441 F.3d at 146. It is obvious that Petitioner’s co-conspirators brought firearms with them and put them in the car before leaving to drive around and look for someone to rob, creating a very real “risk of use” of the firearms in the prospective robbery and undercutting Petitioner’s proffered proof of no “threat of use” of those firearms in the conspiracy. Petitioner’s prior conspiracy to commit robbery conviction does not qualify for the exception in § 3559(c)(3)(A), and thus qualifies as a predicate serious violent felony offense for pIVu.r pCoosnecsl uosf ihoins s entence.

Based on his primary conviction for Hobbs Act robbery, his July 28, 1989 conviction for first degree assault, and his September 1983 conviction for conspiracy to commit robbery, the Court finds that Petitioner has three serious violent felony offenses in total, and thus declines to modify his sentence under the Three Strikes Act. His petition under 28 U.S.C. § 2255 is denied. IT IS SO ORDERED.

_____________/s/_____________________________

Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 30th day of March, 2023