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United States v. Townsend

United States District Court, E.D. Pennsylvania

December 7, 2017

UNITED STATES OF AMERICA
v.
LEROY TOWNSEND

          MEMORANDUM

          KEARNEY, J.

         After pleading guilty to two bank robberies resulting in a sentence within the guidelines range followed by supervised release, Leroy Townsend asks we vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He challenges the constitutionality of the bank robbery statute and his sentence. He also argues ineffective assistance of counsel on several grounds. We carefully reviewed all of his arguments. His arguments lack merit. We deny Mr. Townsend's motion in the accompanying Order.

         I. Background

         In August 2014, within a month of being released from over six years of custody following pleading guilty to four 2008 bank robberies, a masked Leroy Townsend admittedly robbed another Philadelphia bank. He escaped arrest. On October 14, 2014, Mr. Townsend admittedly robbed another Philadelphia bank. This time, a citizen followed Mr. Townsend in his car until the Philadelphia police could capture Mr. Townsend. The same day, law enforcement officers executed a federal search warrant on Mr. Townsend's van. A week later, federal agents executed a search warrant on Mr. Townsend's residence recovering distinctive clothing depicted in the surveillance footage from the August robbery.

         Our grand jury returned an indictment charging Mr. Townsend with two counts of bank robbery for his August and October 2014 bank robberies under 18 U.S.C. § 2113(a). Mr. Townsend again decided to plead guilty to these two robberies. At his change of plea hearing while represented by Assistant Federal Defender Rossman D. Thompson, Jr., Mr. Townsend told Judge Davis:

THE COURT: .. .you used or attempted to use force or violence or intimidation to take that money, do you understand that?
MR. TOWNSEND: Yes, your Honor.
THE COURT: All right.
[...]
THE COURT: And when I say that you used - you attempted to use - force or intimidation, all right. You don't have to produce a gun, that's not what's required and we understand, there was no allegation of a gun, do you understand that?
MR. TOWNSEND: Yes, your Honor.
THE COURT: That the full and complete circumstances under which you were present and in which you presented yourself, was intimidation and it was implied violence. I think there was a mask involved, correct?
MR. TOWNSEND: Yes, your Honor.
THE COURT: So, that would be a sufficient amount of force, just the way you presented yourself, the forceful way you presented yourself, the totality of the circumstances, understood?
MR. TOWNSEND: I get the inference, your Honor, yes, sir.
THE COURT: Well do you understand what I said?
MR. TOWNSEND: Yes, your Honor.[1]

         Later during the change of plea hearing, Mr. Townsend agreed to the factual basis for the plea as specifically described by the United States.[2] Mr. Townsend offered no corrections to the factual basis for his plea. The United States' statement of facts represented Mr. Townsend wore a mask for both robberies.

         Judge Davis scheduled Mr. Townsend's sentencing for June 25, 2015. On June 19, 2015, the United States and Mr. Townsend filed sentencing memoranda.[3] The United States sought and upward variance and Mr. Townsend sought a downward variance. On June 24, 2015, the United States filed a response to Mr. Townsend's request for a downward variance.[4] The next day at sentencing, Mr. Townsend's counsel told Judge Davis he did not wish to continue with the sentencing despite having limited time to respond to the United States' June 24 response.[5] Mr. Townsend raised the issue of requesting his counsel file a written reply to the United States' response.[6] Judge Davis briefly adjourned the sentencing hearing to give Mr. Townsend the opportunity to meet with counsel and decide what to do.[7] After talking with his counsel, Mr. Townsend agreed to continue with the sentencing.[8] After the parties agreed to the guidelines range and Judge Davis evaluated the § 3553(a) factors, Judge Davis sentenced Mr. Townsend to sixty-six (66) months imprisonment, three years supervised release, a $200 special assessment and $1, 370 in restitution.

         Ten months after sentencing, Mr. Townsend filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Judge Davis appointed Irina Ehrlich to represent Mr. Townsend, but Mr. Townsend moved to terminate Attorney Ehrlich based on a "conflict of interest" and asked leave to proceed pro se. While Mr. Townsend's motion to terminate counsel pended, Attorney Ehrlich filed an Anders[9] brief concluding the arguments made by Mr. Townsend in his pro se § 2255 motion lacked merit.

         Judge Davis granted Mr. Townsend's motion to terminate Attorney Ehrlich and appointed new counsel, Benjamin Cooper, Esquire. Three months into Attorney Cooper's representation, Mr. Townsend filed a pro se motion for expedited review of his § 2255 motion, then pending for seventeen months. Mr. Townsend also moved "for ineffective assistance of counsel, " contending Attorney Cooper had not contacted him and asked Judge Davis to either re-instate him as a pro se litigant or compel Attorney Cooper to "reach out and assist me in being listed to be heard."

         Following Judge Davis' departure and reassignment to us in October 2017, we discharged Attorney Cooper due to scheduling concerns and appointed Paul J. Hetznecker, Esquire to represent Mr. Townsend to review and supplement, if warranted, Mr. Townsend's § 2255 motion.[10] Attorney Hetznecker timely filed a supplement in support of Mr. Townsend's motion.[11] The United States did not respond.

         II. Analysis

         Mr. Townsend argues we should vacate his sentence because Judge Davis did not specify reasons for conditions during supervised release rendering them unconstitutionally vague and Attorney Thompson provided ineffective assistance by failing to (1) request additional time to rebut the United States' response to Mr. Townsend's sentencing memorandum, violating his due process rights; (2) argue insufficient evidence to support an element of the bank robbery offense; (3) challenge the federal bank robbery statute as unconstitutionally vague; (4) request a downward variance based on his conditions of confinement at his Delaware County facility compared to the Federal Detention Center in Philadelphia; and (5) argue Mr. Townsend's criminal history is inflated based on 2005 and 2007 offenses in the presentence investigation report. He also argues the sentence is no longer constitutional under Johnson v. United States. Following close review of each challenge, we disagree with Mr. Townsend and deny his request for relief.

         A. The conditions of supervised release are not unconstitutionally vague.

         Mr. Townsend argues the conditions of supervised release are unconstitutionally vague and Judge Davis committed reversible error by imposing ambiguous conditions requiring a new sentencing hearing.

         Judge Davis imposed two, three-year terms of supervised release to be served concurrently, ordered Mr. Townsend to comply with this District's standard conditions of supervised release. Judge Davis also ordered Mr. Townsend to comply with conditions of supervised release tailored to the four bank robberies and earlier arrests (while not included in the criminal history) such as possession of firearms in 1994 and possessing a controlled substance in 2001:

1. cannot possess any firearms, illegal controlled substances, or destructive devices;
2. must participate in the DNA collection project;
3. receive appropriate drug, alcohol, and mental treatment in a form determined by the probation department in its discretion, but to include at least three drug tests the first to be administered within fifteen days of release and the other two tests at a time determined by the probation department in its discretion;
4. must regularly provide financial data to the probation department including, at a minimum, the annual Form 1040 and monthly financial reports on assets and debts; and
5. may not obtain credit cards or lines of credit, or extend money on credit, without the advance permission of the probation department.[12]

         Section 3583 of Title 18 of the United States Code provides a court may include, "as part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment."[13] The court "has wide discretion" in imposing terms of supervised release within the parameters of §3583(d).[14] Special conditions of supervised release may be imposed under § 3583(d) only where the conditions are "reasonably related" the factors set out in 18 U.S.C. § 3553(a), [15] and where the special conditions '"involve[] no greater deprivation of liberty than is reasonably necessary for the purposes set forth" in the § 3553(a) factors.[16] A condition of supervised release violates due process and is void for vagueness if it "either forbids or requires the doing of an act in terms so vague that men or common intelligence must necessarily guess at its meaning and differ as to its application."[17]

         Mr. Townsend does not identify the objectionable condition(s) of supervised release; he asks us to review the entire sentencing transcript, apply the United States Court of Appeals for the Seventh Circuit's standard in United States v. Thompson, [18]and find the terms impermissibly vague and ambiguous requiring a new sentencing hearing. We have done so and find no error.

         In Thompson, the Court of Appeals for the Seventh Circuit identified problems with the conditions of supervised released at issue, and provided suggested approaches as a "best practice" for district courts when imposing conditions of supervised release.[19] After Thompson, the Court of Appeals for the Seventh Circuit "ha[s] issued numerous remands requiring that district courts resentence defendants in light of its instructions" on "the process of considering and explaining in open court the conditions of supervised release and how they advance the statutory goals of sentencing . . . designed to promote more tailored and effective conditions and to eliminate 'rote" imposition of conditions that may be vague or irrelevant to the defendant."[20]

         We do not see a basis for extending the Seventh Circuit's reasoning based on sentences issued there to apply to Judge Davis' conditions for a person who has twice plead guilty to multiple bank robberies. Judge Davis' conditions are appropriate for a habitual bank robber with a history of illegally possessing firearms and a controlled substance.

         Mr. Townsend fails to provide us with authority from this Circuit applying Thompson. A recent non-precedential decision from our court of appeals denied defendant's petition for a full resentencing based on an inadvertent error in a form outlining conditions of supervised release.[21] Our court of appeals rejected the defendant's reliance on Thompson, finding "although we reject [defendant's] invitation to apply the Seventh Circuit's standard, which would call for resentencing when reconsideration of a condition of supervised release 'may conceivably induce' the judge to 'alter the prison sentence that he imposed, ' . . . [defendant] provides no valid reason why the District Court here would conceivably be induced to alter his sentence."[22]

         Mr. Townsend does not offer a reason why the district court "would conceivably be induced to alter his sentence." The conditions of supervised release are not vague and are tailored to the § 3553(a) factors in the context of Mr. Townsend's guilty plea to two counts of bank robbery occurring within a year of his release from prison after serving a previous 84-month sentence for four counts of bank robbery. The terms of Mr. Townsend's supervised release are not so vague and ambiguous "that men or common intelligence must necessarily guess at its meaning and differ as to its application." We deny Mr. Townsend's § 2255 petition on this basis.

         B. Mr. Townsend's ineffective assistance claims lack merit.

         The majority of Mr. Townsend's arguments are based on claims of ineffective assistance by Attorney Thompson. Under the two-part Strickland[23]test, Mr. Townsend bears the burden of showing (1) "counsel's performance was deficient"; and (2) "the deficient performance prejudiced the defense."[24] Mr. Townsend must demonstrate ...


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