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United States v. Simmon

United States District Court, S.D. New York

July 28, 2015

UNITED STATES OF AMERICA
v.
SERVINO SIMMON, Defendant.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, District Judge.

Defendant Servino Simmon - who pleaded guilty to a felon-in-possession charge under 18 U.S.C. § 922(g) - is scheduled for sentencing on July 29, 2015. This opinion addresses the proper application of the Sentencing Guidelines to this case. For the reasons stated below, this Court concludes that the applicable Guidelines range is 100 to 125 months' imprisonment.

BACKGROUND

I. CHARGES AND TRIAL

The Indictment charges Simmon with Hobbs Act robbery, in violation of 18 U.S.C. § 1951; using a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c); and felon-in-possession, in violation of 18 U.S.C. § 922(g). See Indictment (Dkt. No. 6).

The Government alleged that Simmon had attempted to rob a livery car driver at about 5:00 a.m. on October 19, 2013, at East 137th Street and St. Ann's Avenue in the South Bronx. (Cmplt. (Dkt. No. 1) ¶ 5a) The case proceeded to trial on June 2, 2014. This Court bifurcated the Hobbs Act robbery and Section 924(c) charges from the felon-in-possession count. (Dkt. No. 18 at 7) After several hours of deliberation, the jury returned a verdict acquitting the Defendant on the Hobbs Act robbery and Section 924(c) counts. (Trial Tr. (Dkt. No. 62) at 510)

After accepting the verdict on June 5, 2014, this Court informed the jury - for the first time - that there would be a second phase of the trial, in which the jury would hear evidence and argument concerning, and render a verdict on, the felon-in-possession count. ( Id. at 511-12) The parties then gave opening statements concerning this charge, and additional evidence was received. ( Id. at 512-21) After summations, this Court instructed the jury as to the felon-inpossession count and the jury began its deliberations on that count. ( Id. at 526-31)

At the end of the day, the jury sent out a note saying that it could not agree on a unanimous decision as to the felon-in-possession count. ( Id. at 532-33) This Court sent the jurors home and they resumed deliberations at 11:00 a.m. the next day. ( Id. at 533-38) The Court gave the jury an Allen charge in the mid-afternoon after another deadlock note. (Trial Tr. (Dkt. No. 64) at 543-46) At about 5:00 p.m., the jury sent out a note stating that the jury remained deadlocked. At that point, this Court declared a mistrial on Count Three, the felon-inpossession count. ( Id. at 547-48)

II. GUILTY PLEA AND PLEA AGREEMENT

On August 8, 2014, Defendant pleaded guilty to Count Three - the felon-inpossession count - before Magistrate Judge Netburn. (Plea Tr. (Dkt. No. 71)) This Court accepted the plea in an August 11, 2014 order. (Dkt. No. 70)

Defendant pleaded guilty pursuant to a plea agreement that contains a number of stipulations regarding the application of the Sentencing Guidelines, both as to offense level and as to criminal history. As to Defendant's offense level, the plea agreement stipulates that, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), the base offense level is 20, "because the defendant committed the instant offense subsequent to sustaining a felony conviction for a crime of violence, to wit, a conviction on or about April 15, 2005 in New York County Supreme Court of Robbery in the Second Degree." (Plea Agmt. (Dkt. No. 95) at 2) The plea agreement also stipulates that, assuming Defendant clearly demonstrates acceptance of responsibility, a twolevel reduction will be warranted pursuant to U.S.S.G. § 3E1.1(a). (Id.) The agreement also states that, assuming Defendant accepts responsibility, "the Government will move at sentencing for an additional one-level reduction, pursuant to U.S.S.G. § 3E1.1(b), because the defendant gave timely notice of his intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently." (Id.) The plea agreement thus arrives at a total offense level of 17. (Id.)

As to Defendant's criminal history, the plea agreement stipulates that Defendant has five criminal history points, which correlates with Criminal History Category III. ( Id. at 2-3) The plea agreement recites that Defendant was convicted on April 15, 2005, in New York County Supreme Court of two counts of Robbery in the Second Degree, and was sentenced to six years' imprisonment for both offenses. ( Id. at 2) This sentence results in three criminal history points pursuant to U.S.S.G. §§ 4A1.1(a) and 4A1.2(a)(2). (Id.) Because Defendant committed the instant offense while under a term of post-release supervision in connection with the 2005 robbery offenses, the plea agreement stipulates that two points are added pursuant to U.S.S.G. § 4A1.1(d). (Id.) The plea agreement notes that - although Defendant testified during his April 2005 trial on second-degree robbery charges that he "robbed a delivery man at knife point on January 8, 1999" - "[n]o conviction for the 1999 robbery offense appears in the defendant's published criminal history."[1] ( Id. at 2 n.1) Accordingly, the plea agreement does not provide for criminal history points associated with the 1999 robbery. ( Id. at 2)

Based on these stipulations, the plea agreement provides for a Guidelines range of 30 to 37 months' imprisonment. ( Id. at 3)

III. THE COURT'S SEPTEMBER 15, 2014 ORDER

In preparing for sentencing, the Court became concerned that the parties' stipulations in the plea agreement did not address the full scope of Defendant's conduct in this case or his criminal record. Because these matters are relevant to the proper application of the Sentencing Guidelines, the Court issued an order on September 15, 2014, directing the parties to address the following issues in their sentencing submissions:

1. whether additional criminal history points should be assessed under U.S.S.G. § 4A1.1(a), based on the Defendant's conviction for Robbery in the First Degree on June 7, 2000, and his subsequent re-sentencing to one to three years' imprisonment on December 19, 2001. In this regard, the parties will address application of U.S.S.G. §§ 4A1.1(a) & cmt. n.1, 4A1.2(a)(1), 4A1.2(b)(1), 4A1.2(d), 4A1.2(e)(1), and 4A1.2(k) & cmt. n.11, as well as the Second Circuit's holdings in United States v. Cuello, 357 F.3d 162, 168-69 (2d Cir. 2004) and United States v. Driskell, 277 F.3d 150, 156-57 (2d Cir. 2002);
2. whether Defendant committed any part of the instant offense after sustaining at least two felony convictions for a crime of violence under U.S.S.G. § 2K2.1(a)(2) & cmt. nn.1, 10;
3. whether the firearm Defendant possessed on October 19, 2013, was stolen for purposes of U.S.S.G. § 2K2.1(b)(4)(A) & cmt. n.8;
4. whether Defendant used or possessed a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B) & cmt. n.14. The parties will address whether the evidence adduced at trial demonstrated that Defendant committed the crimes of Coercion in the First Degree - in violation of N.Y. Penal Law § 135.65 when he allegedly demanded that Mr. Kromah drive him to 137th Street and St. Ann's Avenue (see Trial Tr. (Dkt. No. 46) at 33-34), or Reckless Endangerment in the First Degree - in violation of N.Y. Penal Law § 120.25 - when he allegedly struggled with Officer Azcona over a loaded firearms and attempted to pull the trigger (see Trial Tr. (Dkt. No. 48) at 162-63); and
5. whether Defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer under U.S.S.G. § 3C1.2 & cmt. nn.1-4. (Dkt. No. 73 at 1-2) The Court also directed the Probation Department "to consider the[] Guidelines provisions [cited by the Court] in preparing the Pre-Sentence Report[.]" ( Id. at 2)

IV. PRE-SENTENCE INVESTIGATION REPORT

The Probation Department issued a Pre-Sentence Investigation Report ("PSR") on October 29, 2014. The Guidelines range calculated in the PSR - 57 to 71 months' imprisonment - is significantly higher than the 30-37 month range reflected in the plea agreement. See PSR ¶ 66. The higher range set forth in the PSR reflects the Probation Department's determination that Defendant's June 7, 2000 conviction for First Degree Robbery should be considered in calculating the Defendant's offense level and his criminal history category. With respect to the 2000 conviction, the PSR states that Defendant was arrested on January 8, 1999 - at age 16 - and was convicted of First Degree Robbery in New York County Supreme Court. ( Id. ¶ 33) The PSR also states that (1) on June 7, 2000, Defendant was adjudicated a youthful offender and received a sentence of five years' probation; (2) on December 19, 2001, he was re-sentenced to one to three years' imprisonment; (3) on October 10, 2002, he was paroled; (4) on March 10, 2004, his parole was revoked due to violations and he was admitted to Ulster Correctional Facility; and (5) on May 18, 2004, he was again released to parole. (Id.)

The PSR calculates a base offense level of 24, because Defendant committed the instant offense "subsequent to sustaining at least two felony convictions of.... a crime of violence" - i.e., the 2000 and 2005 robbery convictions - pursuant to U.S.S.G. § 2K2.1(a)(2). ( Id. ¶ 22) The PSR grants a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. §§ 3E1.1(a) and (b), resulting in a total offense level of 21. ( Id. ¶¶ 29-31)

As to Defendant's criminal history, the PSR imposes three points - pursuant to U.S.S.G. §§ 4A1.1(a), 4A1.2(d)(1), and 4A1.2(e)(1) - for Defendant's 2000 first-degree robbery conviction. ( Id. ¶ 33) It also adds three points for Defendant's 2005 second-degree robbery conviction ( Id. ¶ 35), and two points because Defendant committed the instant offense while under a criminal justice sentence for the 2005 robbery conviction. ( Id. ¶ 38) Accordingly, the PSR calculates a criminal history score of eight, which correlates with Criminal History Category IV. ( Id. ¶ 39)

Based on these calculations, the PSR concludes that the applicable Guidelines range is 57 to 71 months' imprisonment. ( Id. ¶ 66)

V. NOVEMBER 10, 2014 CONFERENCE

Sentencing was originally scheduled for November 10, 2014. See Dkt. No. 69. On October 27, 2014, however, Defendant filed a sentencing brief containing a motion to withdraw his guilty plea, pursuant to Rule 11(d) of the Federal Rules of Criminal Procedure. See Def. Sent. Br. (Dkt. No. 96). This Court denied Defendant's motion in a bench ruling on November 10, 2014.[2] See Nov. 10, 2014 Tr. (Dkt. No. 84) at 8-20. The Court did not proceed to sentencing at that time, however.

Because neither Defendant nor the Government had properly addressed the issues set forth in the September 15, 2014 Order, the Court directed the parties to submit briefs addressing these issues. (Nov. 10, 2014 Tr. (Dkt. No. 84) at 20) The Court also directed the Government to (1) "collect all available information concerning the issue of whether the firearm possessed by the defendant was stolen"; and (2) "respond to defendant's arguments concerning the appropriate treatment of defendant's June 2000 youthful offender [adjudication] under the Sentencing Guidelines." (Id.) Both sides were instructed "to address why defendant was resentenced to one to three years of imprisonment on December 19, 2001... at a time when he was over 18 years old, and how this fact affects the guidelines calculation." (Id.)

The parties filed supplemental sentencing submissions on November 17, 2014. (Dkt. Nos. 81-83) As to Defendant's 2000 youthful offender adjudication, the Government stated that it "continue[d] to investigate" the circumstances of that conviction - pursuant to an unsealing order - and "hope[d] to provide additional information to the Court shortly." (Dkt. No. 82 at 2) The Government completed its submissions concerning this issue on April 24, 2015. (Dkt. Nos. 87, 90, 97, 98)

LEGAL STANDARD

"[B]ecause district courts [are] statutorily obliged under 18 U.S.C. § 3553(a) to consider' the [Sentencing] Guidelines, they [are] statutorily obliged to calculate a Guidelines range [before sentencing a defendant]." United States v. Salazar, 489 F.3d 555, 557 (2d Cir. 2007) (citing United States v. Crosby, 397 F.3d 103, 111-12 (2d Cir. 2005)). "[T]he statutory requirement to determine a Guidelines range... necessarily means that facts relevant to sentencing must be found by a preponderance of the evidence." Id . Accordingly, proof by a "preponderance of the evidence' is the generally applicable standard for a sentencing judge to employ when deciding the weight and effect to accord relevant, uncharged conduct at sentencing." United States v. Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000) (citations omitted); see also U.S.S.G. § 6A1.3 cmt. ("The ...


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