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United States v. Kulikowski

United States District Court, W.D. Pennsylvania

June 14, 2017

UNITED STATES OF AMERICA,
v.
SCOTT KULIKOWSKI, Defendant. Civil No. 16-1625

          MEMORANDUM OPINION

          JOY FLOWERS CONTI, CHIEF UNITED STATES DISTRICT JUDGE

         I. Introduction

         Defendant Scott Kulikowski (“Kulikowski”) asks the court to vacate his conviction and five-year consecutive sentence pursuant to 18 U.S.C. § 924(c) for possession of a firearm in furtherance of a crime of violence. Kulikowski, through counsel, filed a motion pursuant to 28 U.S.C. § 2255 (“§ 2255”) on October 26, 2016, and filed a supplemental § 2255 motion on October 28, 2016. (ECF Nos. 125, 128).[1] The government filed a brief in opposition to the motions and Kulikowski filed a reply. (ECF Nos. 144, 148). On December 12, 2016, the court granted the government's motion to stay this case pending the Court of Appeals for the Third Circuit's decisions in two potentially dispositive cases. (ECF No. 134). The court takes judicial notice that those decisions were issued, see United States v. Robinson, No. 15-1402, 844 F.3d 137 (3d Cir. Dec. 19, 2016); United States v. Galati, No. 15-1609, 844 F.3d 152 (3d Cir. Dec. 19, 2016), and the motions are ripe for disposition. An evidentiary hearing is not necessary.

         Defendant's supplemental § 2255 motion incorporates the arguments made in the initial motion and adds allegations of ineffective assistance of counsel. The initial motion (ECF No. 125), will therefore be DENIED AS MOOT. In his reply brief, Kulikowski incorporated by reference each of the arguments made in the § 2255 motion filed by codefendant Christopher Levy (“Levy”). (See ECF No. 148 at 1-2). On June 13, 2017, the court issued a lengthy memorandum opinion and order in United States v. Levy, 2017 WL 2559627 (W.D. Pa. June 13, 2017), which denied Levy's § 2255 motion.[2]

         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 Kulikowski, Levy and Raymond Kober (“Kober”) planned to commit an armed robbery of an auto parts store on September 8, 2014. 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 selected Levy to commit the actual robbery so that Kulikowski would not be recognized by the victims. “All conspirators knew it was going to be an armed robbery.” Presentence Investigation Report (“PSI”) (ECF No. 87 ¶ 13). Agents apprehended Levy within blocks of the store on that date, and recovered a firearm from his car. Kulikowski called Levy's girlfriend immediately after the arrest and told her to delete incriminating text messages regarding the robbery conspiracy. Id. ¶ 14.

         Kulikowski was charged in two separate criminal cases. At Criminal Number 15-19, Kulikowski was charged with a cocaine conspiracy. At Criminal Number 15-22, Kulikowski, Levy and Kober were charged in count one with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); and Kulikowski and Levy were charged in count two with possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The Hobbs Act conspiracy count charged, in relevant part, that Kulikowski, Levy and Kober 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.” (ECF No. 39). The § 924(c) count charged that Kulikowski and Levy knowingly possessed a firearm “in furtherance of a crime of violence.” Id.

         Kulikowski and the government entered into a plea agreement in which Kulikowski agreed to plead guilty to a lesser included offense at count one of the indictment at Criminal Number 15-19 (conspiracy to possess with intent to distribute less than 500 grams of cocaine), [3] and counts one and two of the indictment at Criminal Number 15-22. Kulikowski waived his right to file a direct appeal, except in limited circumstances, but specifically reserved his ability to file an ineffective assistance of counsel claim. Id. ¶ A(8). 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 each of Count One of Criminal No. 15-19 and 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 37-46 months' imprisonment 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 change of plea hearing. (Hearing Memo, ECF No. 80). During the hearing, the prosecutor outlined the elements of each offense and provided the following summary of the evidence: police learned about the conspiracy to commit an armed robbery of an auto parts store through intercepted telephone calls in the course of a lengthy drug investigation; Kulikowski, through his legitimate employment as a tow truck driver, was familiar with the victim location and knew that large sums of cash were on the premises; Kulikowski prompted Levy to commit the actual armed robbery so as not to implicate himself; police stopped Levy on September 8, 2014, when he was two blocks away from the robbery location and recovered a firearm; calls both before and after the arrest indicated that all the conspirators, including Kulikowski, were aware that it was going to be an armed robbery and that Levy had a firearm in his possession for that purpose; soon after the arrest, Kulikowski was intercepted while asking Levy's girlfriend to destroy incriminating text messages relating to the robbery. (See Plea Hearing Transcript at 32-33) (see also PSI ¶ 14, to which Kulikowski did not object). Kulikowski agreed with the prosecution's summary of what he did and admitted that he had possession of the gun that was involved. Id. at 34. The court found that Levy's plea of guilty was knowing and voluntary and supported by an independent basis in fact on each element of the offenses. Id. at 36. At the sentencing hearing on October 16, 2015, the court accepted the parties' plea agreement and imposed the stipulated sentence. (ECF No. 99). Kulikowski did not pursue a direct appeal. His initial § 2255 motion was filed on October 26, 2016, more than one year after his judgment became final.

         III. Legal Analysis

         As more fully explained in the memorandum opinion denying the § 2255 motion filed by co-defendant Levy, the underlying conspiracy with respect to the attempt to commit robbery of the auto parts store on September 8, 2014 was a “crime of violence” and thus, Levy's contemporaneous conviction for possession a firearm in furtherance of a crime of violence is lawful. (Crim. No. 15-22, ECF No. 151). In Robinson, the court of appeals explained: “[A]nalyzing a § 924(c) predicate offense in a vacuum is unwarranted when the convictions of contemporaneous offenses, read together, necessarily support the determination that the predicate offense was committed with the ‘use, attempted use, or threatened use of physical force against the person or property of another.'” 844 F.3d at 143. The court specifically noted in Robinson that courts may consider facts found by a jury and facts “admitted by the defendant in a plea.” Id. In Galati, the court explained that under § 924(c), the government must prove only that a defendant “committed” a predicate crime of violence, but need not “charge” or “convict” the defendant of such an offense. 844 F.3d at 155. In Galati, as in Robinson, a firearm had been used and the use of that firearm indicated the use, attempted use or threatened use of physical force to establish that Galati committed a predicate crime of violence under the “elements” clause of § 924(c). Id.

         Kulikowski's predicate offense and § 924(c) crime were “contemporaneous.” Therefore, the court must look at “the record of all necessary facts before the district court” to determine the means by which the contemporaneous predicate offense was committed. Robinson, 844 F.3d at 141. The relevant facts are those admitted by Kulikowski in his guilty plea. Id. at 143. The record reflects that all conspirators, including Kulikowski, had knowledge and intent that Levy would commit an armed robbery with a gun. The conspirators took substantial steps to carry out the armed robbery by providing a gun and Levy drove toward the auto parts store on the day of the planned holdup. These actions constitute the crime of “attempt” even though Levy did not perform the “last act necessary” to complete the robbery because he was intercepted by police. Under the analysis mandated by the court of appeals in Robinson and Galati, the attempted robbery ...


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