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United States v. Shabazz

United States District Court, M.D. Pennsylvania

August 21, 2019

UNITED STATES OF AMERICA
v.
KAREEM SHABAZZ, Defendant

          MEMORANDUM

          JAMES M. MUNLEY JUDGE

         Before the court for disposition is Defendant Kareem Shabazz's motion to vacate and correct his sentence under 28 U.S.C. § 2255. Defendant seeks relief from a sentence imposed under the Armed Career Criminal Act (hereinafter “ACCA”) and federal “Three Strikes Law” (hereinafter “TSL”). The applicability of these statutes, and their mandatory minimum sentences, hinges on whether defendant's prior robbery convictions from New York state amount to “violent felonies” under federal law. The motion has been fully briefed and is ripe for disposition.

         Background

         The United States brought charges against Defendant Shabazz related to a robbery at the M&T Bank in Hanover Township, Pennsylvania. At the conclusion of a four-day trial, on May 4, 2012, a jury convicted defendant of the following charges: Count 1 -Brandishing a Firearm During and in Relation to a Crime of Violence, 18 U.S.C. § 924(o); Count 2 - Bank Robbery, 18 U.S.C. § 2113(d) and 2; Count 3 - Using a Firearm in Furtherance of a Crime of Violence, 18 U.S.C. § 924(c) and 2; Count 4 - Possession of Firearm by a Person Convicted of a Crime Punishable by Imprisonment Exceeding One Year, 18 U.S.C. § 922(g)(1) and § 924(e); and Count 5 - Transportation of a Firearm in Interstate Commerce, 18 U.S.C. § 924(b) and 2. (Doc. 112, Verdict).

         The court sentenced defendant to a term of life imprisonment on Counts 1, 2, and 5, and one hundred eighty (180) months (that is fifteen years) on Count 4 to run concurrently with the sentences on Counts 1, 2 and 5. On Count 3, the court imposed another life sentence to be served consecutively to the terms imposed on Counts 1, 2, 4, and 5. (Doc. 133, Judgment). The court imposed the life sentences pursuant to the TSL and the fifteen-year sentence as a mandatory minimum under the ACCA. These statutes were invoked due to the defendant's prior state court criminal convictions. Defendant now argues that the sentences are unconstitutional under the Supreme Court's decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015).

         Defendant appealed his conviction to the United States Court of Appeals for the Third Circuit. (Doc. 139, Notice of Appeal). The Third Circuit affirmed his conviction on August 8, 2013. (Doc. 163, Doc. 164, Judgment and Mandate of the United States Court of Appeals); 533 Fed.Appx. 158 (3d Cir. 2013). Defendant then filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on December 16, 2013. Shabazz v. United States, 134 S.Ct. 832 (2013).

         Defendant then filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence. We denied that motion on February 17, 2016. (Doc. 177). On June 24, 2016, the defendant filed a counseled motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. This motion raised arguments based upon the Supreme Court decision in Johnson v. United States, - - U.S. - -, 135 S.Ct. 2551 (2015). Defendant also filed a motion with the Third Circuit Court of Appeals pursuant to 28 U.S.C. § 2244 to file a second or successive motion under 28 U.S.C. § 2255. We stayed his motion in this court, until the Third Circuit ruled upon his motion to file a second or successive section 2255 motion. (Doc. 192).

         The Third Circuit granted defendant leave to file a second or successive section 2255 motion on August 11, 2016, and we lifted the stay on September 2, 2016. (Doc. 195). Because the appeals courts were clarifying aspects of the law involved in this case, we granted several stays.[1] The parties then completed briefing the issues, and the matter is now ripe for decision.

         Jurisdiction

          As defendant brings his motion under section 2255 with permission from the Court of Appeals to file a second or subsequent 2255 motion, we have jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). We also have jurisdiction under 28 U.S.C. § 2241 (“Writs of habeas corpus may be granted by . . . the district courts[.]”).

         Standard of review

          Generally, a federal prisoner in custody under the sentence of a federal court may, within one year from when the judgment becomes final, move the sentencing court to “vacate, set aside, or correct” a sentence “imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). A federal prisoner may also file a section 2255 motion within one year from “[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3).[2] A section 2255 motion may attack a federal prisoner's sentence on any of the following grounds: (1) the judgment was rendered without jurisdiction; (2) the sentence imposed was not authorized by law or otherwise open to collateral attack; or (3) there has been such a denial or infringement of the Constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. 28 U.S.C. § 2255(b).

         Section 2255 does not, however, afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n. 25 (3d Cir. 1993). Rather, section 2255 permits relief for an error of law or fact constituting a “fundamental defect which inherently results in complete miscarriage of justice.” United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio, 442 U.S. 178, 185 (1979)). If the court determines that the sentence was not authorized by law, was unconstitutional, or is otherwise open to collateral attack, the court may vacate the judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate. See 28 U.S.C. § 2255(b).

         Discussion

          As noted above, the defendant received mandatory sentences under the ACCA and the TSL. The sentencing is at issue currently, thus, we will describe with more particularity the sentence in this case.

         The jury found defendant guilty of the following:

Count 1 - Brandishing a Firearm During and in Relation to a Crime of Violence, 18 U.S.C. § 924(o);
Count 2 - Bank Robbery, 18 U.S.C. § 2113(d) and 2;
Count 3 - Using a Firearm in Furtherance of a Crime of Violence, 18 U.S.C. § 924(c) and 2;
Count 4 - Possession of Firearm by a Person Convicted of a Crime Punishable by Imprisonment Exceeding One Year 18 U.S.C. § 922(g)(1) and § 924(e); and
Count 5 - Transportation of a Firearm in Interstate Commerce, 18 U.S.C. § 924(b) and 2.

         The federal TSL provides for mandatory life imprisonment upon the third conviction of a serious violent felony. 18 U.S.C. § 3559.[3]

         Prior to trial the United States filed an “Information of Prior Convictions Notifying Defendant of Intention to Seek Mandatory Life Imprisonment, ” which informed the defendant that the government would seek mandatory life imprisonment under the TSL on Counts 1, 2, 3 and 5. (Doc. 95). The information indicated that defendant had been convicted of the following prior charges:

1) Robbery 1 and Criminal Possession of Stolen Property, New York state, 1976;
2) Robbery 1, Grand Larceny 3, Escape 1 and Criminal Possession of a Weapon 4, New York state, 1983;
3) Criminal Possession of a Weapon 2nd Degree, Robbery 1st degree, Robbery 1st degree, attempted murder 2nd degree, attempted murder 2nd degree, criminal possession of a Weapon 2nd Degree, Criminal Possession of a Weapon 2nd Degree, 1988.

(Doc. 95, Govt's Information of Prior Convictions).

         The Presentence Report used the second and third of these three prior offenses as a justification to impose the TSL and its mandatory life sentence. (PSR ¶ ¶ 38, 51, 52). The Presentence Report also suggested that defendant is an armed career criminal due to three prior convictions for violent felonies under 18 U.S.C. § 924(c). (PSR ¶ 76). The defendant's motion challenges all of these findings. We will address them all in turn.

         A. Career Criminal

         The court sentenced the defendant as a “career criminal” under the United States Sentencing Guidelines (hereinafter “USSG”) § 4B1.2(a)(2). The instant petition originally argued that defendant's classification as a “career criminal” is not proper, and therefore, his sentence should be vacated. In his reply brief, however, the defendant concedes that he is not entitled to any relief on this issue.[4]

         B. ACCA

         The court also sentenced the defendant under the ACCA. The ACCA mandates a minimum fifteen-year prison sentence for a defendant who possessed a firearm after three prior convictions for serious drug offenses or violent felonies committed on different occasions. 18 U.S.C. § 924(e). These prior convictions are termed “predicate offenses.” The court applied this enhancement to Count 4 - Possession of Firearm by a Person Convicted of a Crime Punishable by Imprisonment Exceeding One Year, 18 U.S.C. § 922(g)(1) and § 924(e).

         Defendant attacks this sentencing enhancement on the basis that, although he has several New York state robbery convictions, they do not amount to predicate offenses under the ACCA. After a careful review, we agree in that the New York robbery statute does not categorically ...


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