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United States v. Nieves-Galarza

United States District Court, M.D. Pennsylvania

January 10, 2017

UNITED STATES OF AMERICA
v.
JOSE NIEVES-GALARZA

          MEMORANDUM

          SYLVIA H. RAMBO United States District Judge

         Before the court is Jose Nieves-Galarza's motion to correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 68.) Galarza was sentenced under the Armed Career Criminal Act (“ACCA”) resulting in a guideline range of 188 to 235 months based on an offense level of 51 and a criminal history category of VI. (Presentence Report “PSR”, ¶ 57.) On February 12, 2013, a downward departure was granted reducing his sentence to 109 months. (Doc. 46.) On October 29, 2013, a further amended judgment was entered reducing his sentence to 87 months. (Doc. 55.)

         I. Argument

         Galarza argues that without the ACCA designation he would have been subject to a statutory maximum of 10 years and subject to a further reduction under Amendment 782 of the United States Sentencing Guidelines (“USSG”), as well as the reductions already received. (Doc. 68, pp. 2-3.)

         Galarza asserts that pursuant to Johnson v. United States, he does not qualify for the ACCA designation. 135 S.Ct. 2251. In Johnson, the court held that the residual clause of the ACCA which defines “violent felony” as including an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another” is “unconstitutionally vague.” Id. at 2557. He argues that the New York robberies set forth in paragraphs 29 through 33 of the PSR do not qualify as violent felonies.

         The Government raises two arguments: (1) that the New York robberies would qualify under the “force clause” of the ACCA; and (2) that Galarza, in his plea agreement at paragraph 25 (Doc. 27), waived his right to appeal, which is sweeping and all-encompassing language.

         II. Discussion

         A. Waiver in Plea Agreement

         A review of the guilty plea proceeding supports that Galarza knowingly and voluntarily waived his right to appeal under § 2255. However, United States v. Mabry held that this court has an affirmative duty to evaluate whether the enforcement of the waiver works any miscarriage of justice. 536 F.3d 231, 237-38 (3d Cir. 2008). In United States v. Swerdon, a court in this District held that failure to grant relief in the form of a lower sentence resulting from a retroactive change in the law, to which a defendant would otherwise be eligible, would be a miscarriage of justice. No. 12-cr-87, 2016 WL 4988065, *5 (M.D. Pa. Sept. 19, 2016).

         Because this court believes that Galarza's prior crimes fit under the “force clause” of the ACCA, this court will not address the effect of the waiver in Galarza's plea agreement.

         B. Prior Offenses[1]

         The PSR sets forth five convictions for robbery in the state of New York to which Galarza pled guilty. (PSR, ¶¶ 29-33.) Galarza argues that none of his robbery convictions qualify as predicate offenses. (Doc. 68, pp. 6-9.) The Government cites New York case law which held that New York's robbery statute “has as an element the use, attempted use or threatened use of physical force against the person of another, ” which qualifies for an ACCA designation. (See Exhibit A attached hereto.)

         In United States v. Kornegay, the court held that a conviction under the New York second degree robbery statute qualifies as a violent felony under the force clause of USSG § 4B1.2(a)(1). 641 F.App'x 79, 85 (2d Cir. 2016). Furthermore, the court in United States v. Bennett held that attempted robbery in the first degree qualifies as a violent felony under the force clause.[2] 604 F.App'x 11, 15-16 (2d Cir. 2015).

         Galarza replies by arguing that the New York courts did not thoroughly perform an in depth analysis in reaching their conclusion and should not be followed. (See Exhibit B attached hereto.) In Pinho v. Gonzales, the court stated: “The Supreme Court has repeatedly emphasized that state courts are the ultimate authorities on the meaning of state law.” 432 F.3d 193, 212 (3d Cir. 2005). The Supreme Court in Bush v. Gore held that “comity and respect for federalism compels us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that ...


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