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Hernandez v. United States

United States District Court, E.D. New York

June 1, 2017

LUIS HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          Sandra J. Feuerstein United States District Judge

         On June 23, 2014, petitioner Luis Hernandez (“Hernandez”) filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate his sentence of imprisonment on the ground that the Supreme Court's decision in Descamps v. U.S., 133 S.Ct. 2276 (2013), rendered it improper. (See Motion to Correct Sentence under 28 U.S.C. § 2255 (“Mot.”) (Cr. Dkt. 468)). On November 21, 2014, the United States of America (the “Government”) filed a response in opposition to Hernandez's motion, and on March 10, 2015 Hernandez filed a reply brief in further support of his motion. (See Government's Response in Opposition (“Opp.”) (Cr. Dkt. 484); Hernandez's Reply to the Government's Response (“Reply”) (Civ. Dkt. 10)). On July 15, 2016, Hernandez, represented by the Federal Defenders, filed a supplemental brief in further support of his motion, arguing that his sentence must be vacated in light of the Supreme Court's decision in Johnson v. U.S., 135 S.Ct. 2551 (2015). (See Brief for Petitioner Luis Hernandez, Jr. (“Johnson Br.”) (Cr. Dkt. 511)). On August 26, 2016, the Government filed a supplemental opposition brief, and on August 31, 2016, Hernandez filed a supplemental reply brief. (See Government's Supplemental Response Brief in Opposition to Defendant's Supplemental Brief (“Johnson Opp.”) (Cr. Dkt. 519); Hernandez's Letter Reply (“Johnson Reply”) (Cr. Dkt. 520)). For the following reasons, Hernandez's motion is denied in its entirety.

         I. BACKGROUND

         A. Relevant Procedural History Preceding § 2255 Motion

         On October 13, 2010, a federal grand jury in the Eastern District of New York returned a superseding indictment, charging Hernandez, a member of the Latin Kings street gang, with: conspiring with other Latin Kings members to commit robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a) (Count Two); attempting to commit robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a) (Count Three); and brandishing a firearm during the course of the attempted robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) (Count Four). (See Superseding Indictment (the “Indictment”) (Cr. Dkt. 147) at 2-7). In April 2011, the Government and Hernandez entered a plea agreement, pursuant to which, inter alia, Hernandez agreed to plead guilty to Count Two of the Indictment (conspiracy to commit robbery affecting interstate commerce) and the Government agreed to move the Court for a two-level reduction pursuant to § 3E1.1(b) of the United States Sentencing Guidelines (the “Guidelines”) and dismiss Count Four of the Indictment (brandishing a firearm in violation of § 924(c)(1)(A)(ii)), a charge that would have carried a consecutive seven-year sentence. (See Plea Agreement (Cr. Dkt. 519-1) at ¶¶ 1, 2, 5). The plea agreement indicates that § 1951(a) carries a maximum term of imprisonment of 20 years. (Id. ¶ 1(a)). It contains the following language regarding Hernandez's possible sentence under the Guidelines:

…The Office estimates the likely adjusted offense level for Count Two under the Sentencing Guidelines to be level 30, which is predicated on the following Guidelines calculation:

Base Offense Level (§ 4B1.1(b))

32

Less: Acceptance of Responsibility (§ 3E1.1(a))

-2

Total:

30

This level carries a range of imprisonment of 168 to 210 months, assuming that the defendant falls within Criminal History Category VI. If the defendant pleads guilty on or before April 22, 2011, the government will move the Court, pursuant to [Guidelines] § 3E1.1(b), for an additional one-level reduction, as well as an additional one-level reduction for a global disposition, resulting in an adjusted offense level of 28. This level carries a range of imprisonment of 140 to 175 months, assuming that the defendant falls within Criminal History Category VI. The defendant stipulates to the above Guidelines calculation.

(Id. at ¶ 2). The plea agreement also provides that Hernandez “agrees not to file an appeal or otherwise challenge by petition pursuant to 28 U.S.C. § 2255 or any other provision the conviction or sentence in the event that the Court imposes a term of imprisonment of 188 months or below.” (Id. at ¶ 4).

         On April 20, 2011, Magistrate Judge Arlene Lindsay held a plea allocution hearing, during which Hernandez, represented by Robert L. Moore, Esq., testified that he “and others conspired to rob a known drug dealer for drugs and money in Kings Park” and pled guilty to Count Two of the Indictment. (Transcript of Criminal Cause for Pleading before the Honorable Arlene R. Lindsay (Cr. Dkt. 260) at 42-43). Prior to entering his guilty plea, upon explanation and questioning from Magistrate Judge Lindsay, Hernandez affirmed that: he was satisfied with the assistance he had received from Moore; he had discussed the Indictment and its charges with Moore; he understood that he intended to plead guilty to conspiracy to commit Hobbs Act robbery, which carries a maximum term of imprisonment of 20 years; he had read the plea agreement, reviewed it with Moore, and understood it; he understood that the Government's estimated Guideline level of 28 equated to a sentencing range of 140 to 175 months imprisonment under the Guidelines, which this Court had discretion to deviate from; and he understood that, pursuant to the plea agreement, he was waiving his right to appeal any sentence of 188 months imprisonment or less. (Id. at 13, 27-31, 42-45). Magistrate Judge Lindsay accepted Hernandez's guilty plea and recommended that this Court do the same. (Id. at 44-45; see also 4/20/2011 Minute Entry (Cr. Dkt. 259)). On May 10, 2011, this Court adopted Magistrate Judge Lindsay's recommendation and accepted Hernandez's guilty plea. (Cr. Dkt. 277).

         On October 14, 2011, the United States Probation Department submitted a revised presentence investigation report (“PSR”) and sentence recommendation. The PSR recommended a base offense level of 32 under the “career offender” provision of the Guidelines, § 4B1.1, based upon the instant conviction for conspiracy to commit Hobbs Act robbery, “a felony that is a crime of violence, ” and “at least two prior felony convictions for crimes of violence and/or controlled substance offenses.” (PSR ¶¶ 15, 32, 53). The prior felony convictions upon which the PSR relied to recommend a career offender sentence were: (1) a January 24, 2006 New York State conviction for third-degree burglary; (2) a January 24, 2006 New York State conviction for third-degree criminal sale of a controlled substance; and (3) a June 29, 2009 New York State conviction for attempted second-degree robbery, for which Hernandez was sentenced to three years state imprisonment. (See Id. ¶¶ 49-51, 53). The Probation Department, concurring with the Government's recommendation of a three-point reduction but not a one-point “global disposition” reduction, ultimately recommended a total offense level of 29, which carried a corresponding Guidelines range of 151 to 188 months imprisonment. (See id. ¶ 3, 25-34). The Probation Department recommended 151 months imprisonment to be served consecutive to an undischarged term of state imprisonment for the 2009 state attempted robbery conviction. (See U.S. Probation Department Sentence Recommendation at 1).

         On December 9, 2011, Hernandez filed an objection to the PSR, arguing, inter alia, that he should not be designated a career offender because his January 2006 state conviction for third-degree burglary did not constitute a conviction for a “crime of violence” under Guidelines § 4B1.1. (See Cr. Dkt. 311 at 5-9). Hernandez recognized that the Second Circuit, in U.S. v. Brown, 514 F.3d 256 (2d Cir. 2008), had “considered the question [of] whether third degree burglary (N.Y. Penal Law 140.02) fit within the residual clause in section 4B1.2(a), as a ‘crime of violence' and concluded that it did, ” but argued that “[t]he reasoning of the Second Circuit in this respect is flawed, running counter to that of sister circuits.” (Id. at 6, 8). On January 12, 2012, the Government responded, arguing, inter alia: “Given that this is settled law in the Second Circuit that a conviction for Burglary in the Third Degree under New York State Law is a crime of violence for purposes of the career offender designation under the Guidelines, the Court should reject the defendant's arguments, find taht [sic] he is a career offender, and conclude that the applicable advisory Guidelines range in this case is a [sic] 140 to 175 months.” (Cr. Dkt. 320 at 2).

         On January 26, 2012, this Court held a sentencing hearing, during which it advised Hernandez's counsel that it had considered his objections to the PSR but was bound by then-current Second Circuit precedent dictating that third-degree burglary in New York State constituted a “crime of violence” under § 4B1.1(a) of the Guidelines and the “residual clause” of § 4B1.2(a)(2), which the United States Sentencing Commission has since removed. (See Sentencing Hearing Transcript (Cr. Dkt. 519-2), at 2-3).[1] This Court accepted the Probation Department's recommendation and imposed a sentence of 151 months imprisonment to be served consecutive to his undischarged term of state imprisonment with three years of post-release supervision. (See Id. at 16-17; Sentencing Hearing Minute Entry (Cr. Dkt. 337); Judgment (Cr. Dkt. 338)). Hernandez appealed his sentence on January 30, 2012. (Notice of Appeal (Dkt. 328)). On October 12, 2012, the Second Circuit dismissed Hernandez's appeal as barred by the appellate waiver in the plea agreement. (See Mandate (Dkt. 399)).

         B. Hernandez's § 2255 Motion

         1. First ...


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