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United States v. Levy

United States District Court, W.D. Pennsylvania

June 13, 2017

UNITED STATES OF AMERICA,
v.
CHRISTOPHER LEVY, Defendant. Criminal Nos. 15-21, 15-22

          MEMORANDUM OPINION

          Joy Flowers Conti Chief United States District Judge.

         I. Introduction

         Defendant Christopher Levy (“Levy”) asks the court to vacate his sentence and to immediately release him from prison. Levy filed a pro se Motion to Dismiss Count Two and to Vacate Guilty Plea on April 22, 2016, and a pro se motion pursuant to 28 U.S.C. § 2255 (“§ 2255”) on May 12, 2016. (Crim. No. 15-22, ECF Nos. 114, 115). The court appointed counsel for Levy, who filed a supplemental and a second supplemental § 2255 motion on Levy's behalf. (Crim. No. 15-21, ECF No. 32; Crim. No. 15-22, ECF Nos. 119, 126). The government filed a brief in opposition to the motions and Levy filed a reply. (Crim. No. 15-21, ECF Nos. 37, 38; Crim. No. 15-22, ECF Nos. 139, 141). On February 3, 2017, Levy filed a motion for an immediate status conference to seek his immediate release. (Crim. No. 15-21, ECF No. 39; Crim. No. 15-22, ECF No. 142). The court held a telephone conference on February 7, 2017, and requested additional briefing from the parties. Those briefs have been filed (Crim. No. 15-21, ECF No. 43; Crim. No. 15-22, ECF Nos. 146, 147), and the motions are ripe for disposition. An evidentiary hearing is not necessary.

         Defendant's various motions raise essentially the same issues and seek the same relief. The second supplemental motion (Crim. No. 15-21, ECF No. 32; Crim. No. 15-22, ECF No. 126) incorporates the arguments made in the earlier motions and adds allegations of ineffective assistance of counsel. The pro se motion to dismiss count two and to vacate guilty plea (Crim. No. 15-22, ECF No. 114), the pro se motion pursuant to 28 U.S.C. § 2255 (Crim. No. 15-22, ECF No. 115), the supplemental § 2255 motion (Crim. No. 15-22, ECF No. 119), and the motion for immediate status conference (Crim. No. 15-21, ECF No. 39; Crim. No. 15-22, ECF No. 142), therefore, will be DENIED AS MOOT. The court has considered all the legal arguments articulated by defendant.

         Levy contends that he is now serving an illegal sentence, in that: (1) he has completed his two-year agreed-upon sentence for conspiracy to commit Hobbs Act robbery; (2) he is now serving a consecutive five-year sentence for possession of a firearm in furtherance of a “crime of violence” pursuant to 18 U.S.C. § 924(c); and (3) his § 924(c) conviction is legally invalid and must be vacated. Levy reasons that he could not have possessed a firearm in furtherance of a crime of violence because the predicate Hobbs Act conspiracy is not a “crime of violence” pursuant to Johnson v. United States, 135 S.Ct. 2552 (2015) (holding that the “residual clause” in 18 U.S.C. § 924(e) is unconstitutionally vague). Defendant argues that his original attorney was ineffective for advising him to plead guilty to these charges.

         Levy contends that his § 2255 motion is timely because it was filed within one year of Johnson and prior to Johnson, he had no basis to challenge his § 924(c) conviction. 28 U.S.C. § 2255(f)(3). His reasoning is two-fold: (1) conspiracy cannot qualify as a predicate offense under the § 924(c) “elements” clause because the essence of conspiracy is an agreement and use of force is not an element of a conspiracy crime; and (2) conspiracy can no longer qualify under the § 924(c) “residual” clause because after Johnson, the “residual” clause is unconstitutionally vague. The court will consider for the sake of argument that Levy's motion is timely because the timeliness analysis is intertwined with the merits of his arguments.

         The government maintains that Levy's conviction and sentence are valid. The government argues: (1) Levy's original counsel was not ineffective; (2) Levy's claims are procedurally defaulted because he failed to raise these arguments at sentencing or on direct appeal; (3) new Third Circuit Court of Appeals precedent in the companion decisions of United States v. Robinson, 844 F.3d 137 (3d Cir. 2016), and United States v. Galati, 844 F.3d 152 (3d Cir. 2016), mandates that Levy committed a “crime of violence” based on the record in this case; (4) the holding in Johnson regarding the residual clause in § 924(e) did not invalidate the different “residual clause” in § 924(c) at issue in this case; and (5) conspiracy to commit Hobbs Act robbery is a “crime of violence” under both the “elements” and “residual” clauses of § 924(c). The government argues that, if Levy is given any relief, the appropriate remedy is not immediate release, but resentencing de novo under the “sentencing package doctrine.” United States v. Davis, 112 F.3d 118, 123 (3d Cir. 1997) (remanding for resentencing on multiple counts where mandatory consecutive sentence was stricken).

         II. Factual and Procedural Background

         Law enforcement agents were in the midst of a long-term investigation when they intercepted a series of telephone calls in which Levy and co-defendants Scott Kulikowski and Raymond Kober planned to commit an armed robbery of an auto parts store on September 8, 2014. Levy was arrested while driving to the store on that day. A firearm was recovered from the car. Because Levy was stopped before he arrived at the store, the robbery did not occur.

         Levy was charged in two separate criminal cases. At Criminal Action No. 15-21, Levy was charged with: (1) possession of a firearm by an unlawful user or addict; and (2) possession of a firearm by a person subject to a court order, in violation of 18 U.S.C. § 922(g)(8). At Criminal Action No. 15-22, Levy was charged with: (1) conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); (2) possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i); (3) possession of a firearm by a person subject to a court order; and (4) possession of a firearm by an unlawful user or addict. The Hobbs Act conspiracy count charged, in relevant part, that Levy and others conspired to obstruct commerce by robbery, “by means of actual and threatened force, and violence and by placing [the victims] in fear of immediate and future injury to their persons and property.” (Crim. No. 15-22, ECF No. 39). The § 924(c) count charged, in relevant part, that Levy knowingly possessed a firearm “in furtherance of a crime of violence, that is, unlawfully obstructing, delaying and affecting commerce, and the movement of articles and commodities in commerce by robbery, and conspiring to do so, in violation of [§ 1951(a)], as charged in Count One of this Indictment, and possessed said firearm in furtherance of said crime.” Id.

         Levy and the government entered into a plea agreement pursuant to which Levy agreed to plead guilty to count 2 of the indictment at Criminal Number 15-21 and counts 1 and 2 of the indictment at Criminal Number 15-22. Levy acknowledged his responsibility for the conduct charged at the other counts of the indictments and stipulated that “the conduct charged in those Counts may be considered by the Probation Office or by the Court in calculating the guideline range and in imposing sentence.” Plea Agreement ¶ A(2). Levy waived his right to file a direct appeal, except in limited circumstances, but specifically reserved his ability to file a collateral attack for an ineffective assistance of counsel claim. Id. ¶ A(9). The parties stipulated to an appropriate sentence as follows:

Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties stipulate and agree that the appropriate sentence in this case is a term of imprisonment of seven (7) years [two (2) years imprisonment at Count Two of Criminal No. 15-21 and at Count One of Criminal No. 15-22 to run concurrently with one another, and five (5) years imprisonment at Count Two of Criminal No. 15-22 to run consecutively thereto] . . . .

Id. at ¶ C(6). The parties agreed that “no other enhancements, departures or variances are applicable or appropriate.” Id. The agreement reflected a downward variance because the advisory guideline range was 30-37 months plus the mandatory five-year consecutive sentence for possession of a firearm in furtherance of a crime of violence.

         On July 6, 2015 (approximately two weeks after the Supreme Court's decision in Johnson on June 26, 2015), the court conducted a thorough change of plea colloquy. (Crim. No. 15-22, ECF No. 140). According to the prosecution's summary of the offense conduct, Kulikowski was aware through his legitimate business as a tow truck driver that the auto parts store kept large amounts of cash on the premises. Kulikowski had Levy commit the actual robbery so that Kulikowski would not be recognized by the intended victims. Kober gave Levy a gun. All conspirators knew it was going to be an armed robbery. Agents apprehended Levy within blocks of the store on that date, and recovered a firearm from his car. See Transcript of Plea Hearing, Crim. No. 15-22, ECF No. 140 at 20-21. Levy was asked whether he agreed with the prosecution's summary about what he did and responded “Yes.” Id. at 22. Levy affirmed that he agreed to rob the business and had a firearm at that time. Id. at 22-23. Levy pled guilty to both offenses. Id. at 23. The court found that Levy's guilty plea was knowing and voluntary and supported by an independent basis in fact for each element of the offenses. Id. at 24.

         Following Levy's guilty plea, the probation office prepared a Presentence Investigation Report (“PSI”), which contained a description of the offense conduct. The PSI reflected that all conspirators knew that Levy was going to commit an armed robbery of the auto parts store and officers seized a firearm from Levy's car when they apprehended him on his way to the store. See PSI ¶¶ 9-13, Crim. No. 15-21, ECF No. 20 (under seal). Levy had no objections to the contents of the PSI. (Crim. No. 15-21, ECF No. 23). In his sentencing memorandum, Levy admitted that he was “an integral part of the Hobbs Act Robbery conspiracy involving use of a firearm, ” although the idea to commit the robbery did not originate with him. (Crim. No. 15-21, ECF No. 25 at 7). At the sentencing hearing on October 16, 2015, the court accepted the plea agreement and imposed the stipulated sentence. (Crim. No. 15-21, ECF No. 42).

         III. Legal Analysis

         The statute of conviction, § 924(c), imposes a five-year mandatory minimum consecutive sentence for “any person who, during and in relation to any crime of violence or drug trafficking crime . . ., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm. . . .” 18 U.S.C. § 924(c)(1)(A). Sections 924(c)(1)(A)(ii) and (iii) provide more severe penalties if the firearm is “brandished” or “discharged.” The “elements” clause and “residual clause” in § 924(c) are defined as follows:

(3) For purposes of this subsection the term ‘crime of violence' means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the ...

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