United States District Court, E.D. Pennsylvania
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.
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.
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
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
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,
MR. TOWNSEND: I get the inference, your Honor, yes, sir.
THE COURT: Well do you understand what I said?
MR. TOWNSEND: Yes, your Honor.
during the change of plea hearing, Mr. Townsend agreed to the
factual basis for the plea as specifically described by the
United States. 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
Davis scheduled Mr. Townsend's sentencing for June 25,
2015. On June 19, 2015, the United States and Mr. Townsend
filed sentencing memoranda. 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. 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. Mr. Townsend raised the issue of
requesting his counsel file a written reply to the United
States' response. Judge Davis briefly adjourned the
sentencing hearing to give Mr. Townsend the opportunity to
meet with counsel and decide what to do. After talking
with his counsel, Mr. Townsend agreed to continue with the
sentencing. 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.
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 brief concluding the
arguments made by Mr. Townsend in his pro se §
2255 motion lacked merit.
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."
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. Attorney Hetznecker timely filed a
supplement in support of Mr. Townsend's
motion. The United States did not respond.
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
The conditions of supervised release are not
Townsend argues the conditions of supervised release are
unconstitutionally vague and Judge Davis committed reversible
error by imposing ambiguous conditions requiring a new
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
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." The court "has wide
discretion" in imposing terms of supervised release
within the parameters of §3583(d). 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),  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. 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
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, and find the terms
impermissibly vague and ambiguous requiring a new sentencing
hearing. We have done so and find no error.
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. 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."
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.
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. 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
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.
Mr. Townsend's ineffective assistance claims lack
majority of Mr. Townsend's arguments are based on claims
of ineffective assistance by Attorney Thompson. Under the
two-part Stricklandtest, Mr. Townsend bears the
burden of showing (1) "counsel's performance was
deficient"; and (2) "the deficient performance
prejudiced the defense." Mr. Townsend must demonstrate