United States v. Santore

          OPINION AND ORDER GRANTING DEFENDANT'S REQUEST FOR EXPEDITED REVIEW OF THE MAGISTRATE JUDGE'S ORDER STAYING THE CASE AND DENYING WITHOUT PREJUDICE DEFENDANT'S REQUEST FOR A REDUCED SENTENCE (Doc. 63)

          CHRISTINA REISS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This matter came before the court on Defendant Donald J. Santore's appeal of the Magistrate Judge's Order staying the case (Doc. 63). Mr. Santore asks the court to lift the stay imposed by the Magistrate Judge and grant him a reduction in his sentence. He argues that his Sentencing Guideline range was calculated with reference to a "crime of violence" residual clause identical to that struck down under Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson held that the Armed Career Criminal Act's (the "ACCA") residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally void for vagueness because its application "does not comport with the Constitution's guarantee of due process." Johnson, 135 S.Ct. at 2560. Mr. Santore's anticipated release date from incarceration is December 27, 2016. He asserts that, in the absence of expedited treatment of his motion, he will be deprived of meaningful relief.

         The government opposes the motion, arguing that the court is not required to lift the stay, that it is unclear whether Mr. Santore is entitled to his requested relief, and that lifting the stay will require an unwarranted expenditure of resources by the parties and the federal judiciary.

         Mr. Santore is represented by Assistant Federal Public Defender Steven L. Barth. The government is represented by Assistant United States Attorney Gregory L. Waples and Assistant United States Attorney Eugenia A. Cowles.

         I. Factual and Procedural Background.

         On March 20, 2013, the court sentenced Mr. Santore to a below-Guidelines sentence of 68 months imprisonment following his guilty plea to one count of possession of a stolen firearm, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2), and one count of possession of a firearm not properly registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. The court adopted the presentence report ("PSR") as its findings of fact. It also adopted the Sentencing Guidelines recommendation set forth therein over Mr. Santore's objections that his prior felony convictions pursuant to 13 V.S.A. § 1201(a) are not categorically "crimes of violence" under the Guidelines and that the Guidelines' residual clause set forth in U.S.S.G. § 4B 1.2(a)(2) is unconstitutionally vague.

         In determining Mr. Santore's advisory Guidelines range, the court found that the offenses of possession of a stolen firearm and possession of a firearm not properly registered to him occurred on or about January 7, 2012 and that the Sentencing Guidelines (November 1, 2012 edition) applied. The court concluded that Mr. Santore committed the offenses of conviction subsequent to sustaining two felony convictions for "crimes of violence" based on the residual clause in the Guidelines and the Second Circuit's controlling interpretation of that clause. See PSR at 11, ¶ 39 n.9 (citing United States v. Brown, 514 F.3d 256, 268-69 (2d Cir. 2008) (concluding that under New York law, burglary in the third degree of a "building" as opposed to a "dwelling" is a "crime that inherently involves a risk of personal injury" and was thus a "crime of violence within the meaning of the [residual] clause of Guidelines § 4B 1.2(a)(2)") (internal quotation marks omitted)); see also PSR at 14, ¶ 42.

         Under the applicable Guidelines, a defendant's base offense level is 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense[.]" U.S.S.G. § 2K2.1(a)(4)(A). The term "crime of violence" is defined in the 2012 Guidelines Manual as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B 1.2(a). "Section 4B 1.2(a)(1) is referred to as the 'physical force clause.' The first half of § 4B 1.2(a)(2) contains the 'exemplar crimes, ' and the second half the 'residual clause.'" United States v. Van Mead, 773 F.3d 429, 432 (2d Cir. 2014).

         "As a general matter, reliance on a federal PSR's factual description of a defendant's pre-arrest conduct to determine whether a prior offense constitutes a 'crime of violence' under U.S.S.G. § 4B 1.2(a)(1) is prohibited." United States v. Reyes, 691 F.3d 453, 459 (2d Cir. 2012). The facts surrounding Mr. Santore's Vermont burglary convictions as set forth in the PSR are nonetheless examined because they are relevant to his likelihood of success on the merits.

         On or about August 21, 2006, Mr. Santore pled guilty to felony burglary under Vermont law and was sentenced to a term of imprisonment of sixteen months to ten years. Paragraph 39 of the PSR states that the police affidavit related to this conviction alleges that Mr. Santore burglarized a construction site located in Richford, Vermont on November 15, 2005 by breaking a window to enter the residence and taking construction tools with a total value of $2, 470 (the "construction site burglary"). On March 28, 2006, Mr. Santore provided a statement to police allegedly indicating that he and another person broke into the structure for the purpose of removing construction tools, which they returned the following evening. The PSR indicates ...