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Mapp v. United States

United States District Court, E.D. New York

August 3, 2018

JOHN MAPP, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          For Plaintiff: MIA EISNER-GRYNBERG Federal Defenders of New York

          For Defendants: BRIDGET M. ROHDE Acting United States Attorney By: SAMUEL P. NITZE Assistant U.S. Attorney

          MEMORANDUM AND ORDER

          FREDERIC BLOCK, SENIOR UNITED STATES DISTRICT JUDGE.

         John Mapp (“Mapp”) moves under 28 U.S.C. § 2255 to vacate his sentence. He argues that it is unconstitutional under Johnson v. United States, 135 S.Ct. 2551, 2557 (2015), because the Court enhanced his mandatory United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”) range based on the unconstitutionally vague residual clause of the Career Offender Guideline, U.S.S.G. § 4B1.2(1)(ii). For the reasons discussed below, the motion is granted.

         I

         Mapp was charged in a thirteen-count superseding indictment with Hobbs Act robbery, Hobbs Act robbery conspiracy, bank robbery, using a firearm during a crime of violence, and murder in aid of racketeering. United States v. Mapp, 170 F.3d 328, 332 (2d Cir. 1999). At trial, the Government introduced evidence that he was a leader in a gang that carried out a series of robberies against business owners and operators in the early 1990s. The gang operated by entering banks and robbing the victims while they waited to deposit cash business proceeds. Of the five specific robberies identified at trial, three involved the shooting of the victim by Mapp's fellow participants. One of these caused the victim's death. The jury found Mapp guilty of Hobbs Act robbery, attempted Hobbs Act robbery, and attempted bank robbery. It failed to reach a verdict on the murder count and several of the robbery counts.[1] Id. at 331-33.

         During the May 1999 sentencing proceeding, the Court initially calculated Mapp's Guideline range at 110 to 137 months. However, the Court applied the Career Offender Guideline, see U.S.S.G. § 4B1.1, based on Mapp's two prior New York convictions for second-degree robbery, for which he served concurrent terms of nine years' imprisonment. Sentencing Tr. at 36-37. The Career Offender enhancement resulted in an increased Guideline range of 262 to 327 months. Id. at 50. Finding by clear and convincing evidence that Mapp was involved in the planning and execution of the robberies and murder on which the jury had failed to reach a verdict, the Court upwardly departed to a sentence of 450 months' imprisonment.[2] Id. at 81-85.

         Mapp appealed, and the Second Circuit affirmed, rejecting Mapp's argument that the Court's upward departure was unreasonable. Mapp, 170 F.3d at 339. The Court denied Mapp's first § 2255 motion in 2001. In August 2016, the Second Circuit granted Mapp leave to file a successive § 2255 motion raising his present claims.

         II

         A. The Residual Clause of the pre-Booker Career Offender Guideline is Void for Vagueness under Johnson.

         Section 4B1.1 of the Guidelines imposes an enhanced offense level if, as relevant here, (1) the “instant offense” is a “crime of violence” and (2) the defendant has at least two prior felony convictions for a “crime of violence.” U.S.S.G. § 4B1.1 (Nov. 1, 1990). A “crime of violence” is defined as:

any offense under federal or state law punishable by imprisonment for a term exceeding one year that-
(i) has as an element the use, attempted use, or threated use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a seriouspotential risk ...

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