United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
A RULING ON THE MERITS, DENYING AS MOOT THE GOVERNMENT'S
MOTION TO STAY THE CASE, AND DISMISSING AS UNTIMELY
DEFENDANT'S 28 U.S.C. § 2255 PETITION (DOCS. 51, 53,
& 57)
Christina Reiss, Judge.
This
matter came before the court on Defendant Ronald Foley's
petition to vacate and correct his sentence pursuant to 28
U.S.C. § 2255 (Doc. 51), the government's motion to
stay the case (Doc. 53), and Defendant's motion for a
ruling on the merits (Doc. 57). On October 5, 2017, Defendant
filed his second set of supplemental documents in support of
his § 2255 petition, at which time the court took the
matter under advisement.
Defendant
argues that his sentence was enhanced pursuant to the
residual clause of the then-mandatory United States
Sentencing Guidelines (the "U.S.S.G." or the
"Guidelines") and thereby violates his right to due
process pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015) and Welch v. United States, 136
S.Ct. 1257 (2016). Johnson held that the residual
clause of the Armed Career Criminal Act ("ACCA"),
18 U.S.C. § 924(e)(1), was void for vagueness under the
Due Process Clause. Welch made the Johnson
rule retroactive to cases on collateral review. Defendant
asserts that his prior convictions do not qualify as crimes
of violence under either the enumerated offenses clause or
the force clause of § 4B 1.2(a) of the Guidelines.
Because the ACCA's residual clause has been ruled
unconstitutionally vague, he contends there is no basis on
which he qualifies for status as a career offender. Defendant
further argues that his claim is not barred by Beetles v.
United States, 137 S.Ct. 886 (2017), wherein the Supreme
Court held that the residual clause of § 4B1.2 of the
advisory Guidelines is not void for vagueness. Defendant
distinguishes the procedural posture of his case, arguing
that his January 9, 2003 sentencing occurred when the
Guidelines were mandatory and prior to the Supreme
Court's decision in United States v. Booker, 543
U.S. 220 (2005), and as such "the [c]ourt had no choice
but to impose the [mandatory] career offender sentence."
(Doc. 57 at 14.)
The
government's opposition to Defendant's § 2255
petition is twofold. First, the government argues that
Defendant is not entitled to relief because his claim is
premature. Second, the government contends that this court
properly determined that Defendant had previously been
convicted of multiple crimes of violence (six convictions in
Connecticut for first degree robbery) and thus qualified as a
career offender.
Defendant
is represented by Assistant Federal Public Defender Barclay
T. Johnson. The government is represented by Assistant United
States Attorney Gregory L. Waples and Assistant United States
Attorney Melissa A. D. Ranaldo.
I.
Factual and Procedural Background.
On
January 9, 2003, this court sentenced Defendant to a combined
term of 262 months imprisonment, consisting of the statutory
maximum term of 240 months imprisonment following his guilty
plea to one count of bank robbery, and a consecutive term of
22 months imprisonment following his guilty plea to one count
of escape. The court adopted the presentence report
("PSR") as its findings of fact and noted that
Defendant had a prior third degree burglary conviction for
breaking and entering into a private residence in Connecticut
and stealing property contained therein, as well as multiple
convictions for first degree robbery in Connecticut. The
court declined to consolidate Defendant's robbery
convictions into one offense and, as a result, concluded that
the Guidelines' career offender enhancement was
applicable.[1]
"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). In this case, the court does not
rely on the PSR's description of Defendant's
pre-arrest conduct to determine whether his prior convictions
constituted "crimes of violence" but merely for the
purposes of determining whether "there exists a close
factual relationship between the underlying
convictions." United States v. Mapp, 170 F.3d
328, 338 (2d Cir. 1999) (internal quotation marks omitted).
On or
about January 16, 1991, Defendant was arrested for robbery in
Connecticut and implicated himself in thirteen robberies and
one burglary in the Hartford, Connecticut area. Paragraph 115
of the PSR states that Defendant entered a Glastonbury,
Connecticut department store, handed a note to the cashier
that stated he had a gun, and demanded the cashier hand over
the money in the cash register. When the cashier refused to
immediately comply, Defendant grabbed the money from the cash
drawer and fled.
In
Paragraph 116 of the PSR, a police report also dated January
16, 1991 indicated that Defendant entered a West Hartford,
Connecticut gas station, proffered a note stating he
possessed a gun, and demanded money. The employee placed
money in the cash register drawer which Defendant took before
leaving.
As
detailed in PSR Paragraph 117, on or about January 14, 1991,
Defendant entered an Enfield, Connecticut flower shop and
presented a note stating he had a gun and demanded money. The
clerk began removing money from the cash register when
Defendant reached over the counter and grabbed money from her
hands and the open register cash drawer.
According
to Paragraph 118 of the PSR, Defendant entered a woman's
clothing store in Southington, Connecticut on January 14,
1991. With his hand in his right jacket pocket, Defendant
handed an employee a written note that stated he had a gun
and demanded money. The employee handed Defendant the money
from the cash register.
On or
about January 11, 1991, Defendant entered a pharmacy in
Hartford, Connecticut. According to Paragraph 120 of the PSR,
Defendant handed a pharmacist a note that stated he had a gun
and demanded money. The pharmacist opened the cash register,
and Defendant removed the ten and twenty dollar bills before
he fled the store.
The PSR
noted in Paragraph 121 that on January 12, 1991, Defendant
entered a store in Hartford, Connecticut. Upon observing the
number of people inside the store, Defendant temporarily left
until some of the customers departed. He then reentered the
store, approached a cash register, and ordered the employee
to open the cash register. When the employee did not
immediately do so, Defendant brandished a small silver
handgun and repeated his order to open the cash register.
While the clerk was collecting the money, Defendant reached
over and grabbed money.
The PSR
described the events underlying Defendant's burglary
conviction in Paragraph 119.[2] On or about January 2, 1991,
Defendant and another man entered a private residence without
permission and stole a handgun and a floor safe containing a
large, rare, and valuable collection of gold and silver
coins. Defendant confessed to the burglary on January 16,
1991. The PSR did not indicate the time of day the burglary
took place, whether anyone was present in the residence at
the time, or Defendant's method of entry.
The PSR
recommended that the court find that Defendant was a career
offender as defined in Guidelines § 4B1.1. In support of
that recommendation, the PSR noted that Defendant was at
least eighteen years of age at the time of the Vermont bank
robbery offense, that the bank robbery was a felony that was
a crime of violence, and that Defendant had at least two
prior felony convictions for crimes of violence. See
PSR at 15, ¶ 94a. Citing Guidelines § 4A1.2 n.3 and
the Second Circuit's analysis in Mapp, the PSR
recounted that Defendant was sentenced in Connecticut on May
20, 1993 for thirteen robbery offenses and burglary, as
described in Paragraphs 115-121 of the PSR, and concluded:
the [Connecticut] robberies in question cannot be considered
related . . . because the robberies occurred on different
days and involved different locations, and victims. Based on
the foregoing, the convictions outlined in [Paragraphs 115
through 121 are thus unrelated and qualify as predicate
offenses for the career offender application.
PSR at 15, ¶ 94a n.1. In making the Guidelines
calculations, the court concluded that Defendant committed
the offenses of conviction subsequent to sustaining six
felony convictions for first degree robbery and one
conviction for burglary and therefore qualified as a career
offender. See PSR at 21-24, ¶¶ 115-18,
120-21.
Based
on controlling Second Circuit precedent, in determining
Defendant's Guidelines range, the court adopted the
PSR's recommendation, found that the offense of bank
robbery occurred on or about March 22, 2001, the offense of
escape occurred on March 24, 2002, and that the Sentencing
Guidelines applied. The court further found that certain
offense characteristics applied and increased Defendant's
offense level, including that: (1) the property of a
financial institution was taken; (2) Defendant obstructed
justice; (3) Defendant used force against another person
during the commission of his escape; (4) the victim of the
escape offense was a government officer; (5) Defendant
physically restrained the victim of the escape offense; (6)
Defendant recklessly created a substantial risk of death or
serious bodily injury to another in the course of fleeing
from a law enforcement officer; and (7) Defendant did not
demonstrate an acceptance of responsibility.
After
reviewing the nature of the offenses, the court determined
that Defendant's combined offense level was 32 and that
he had 36 criminal history points, resulting in criminal
history category VI.[3] The statutory maximum was 20 years
imprisonment for the bank robbery conviction, and
Defendant's Guidelines imprisonment range was 210 to 262
months.[4] The court denied the government's
request for an upward departure, and sentenced Defendant to a
term of imprisonment of 240 months for bank robbery
consecutive to a term of imprisonment of 22 months for the
escape offense, for a total sentence of 262 months
imprisonment followed by a three year term of supervised
release.
On
appeal, the Second Circuit affirmed Defendant's sentence.
In rejecting his argument that the court erred in denying him
an adjustment for acceptance of responsibility, the Second
Circuit held that the "district court's imposition
of [the] sentence within a properly calculated Sentencing
Guidelines range is not appealable, " and noted that
Defendant "identifie[d] no errors in the district
court's sentencing calculations." United States
v. Foley, 71 Fed.Appx. 889, 891 (2d Cir. 2003).
II.
Conclusions of Law and Analysis.
A.
Whether to Stay the Case or Rule on the Merits.
On July
28, 2016, the government filed a motion requesting the court
impose a stay until the Supreme Court's decision in
Beckles. Defendant's anticipated release date
from incarceration is April 7, 2020, and he argues in his
competing motion to proceed on the merits that, in the
absence of expedited treatment of his motion, he will be
deprived of meaningful relief.
In
Blow v. United States,829 F.3d 170 (2d Cir. 2016),
the ...