Allen v. USA
Filing
24
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). See attached Ruling & Order for details. Signed by Judge Robert N. Chatigny on 9/26/2019. (Rickevicius, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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DERRICK ALLEN,
Petitioner,
v.
UNITED STATES,
Respondent.
Case No. 3:16-cv-634(RNC)
RULING AND ORDER
In 2011, petitioner Derrick Allen pleaded guilty to
unlawful possession of a firearm by a previously convicted felon
in violation of 18 U.S.C. § 922(g)(1) and was sentenced to
prison for 15 years.
He moves pursuant to 28 U.S.C. § 2255 to
vacate his sentence claiming that it was improperly enhanced
under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1)
(“ACCA”), which requires a sentence of fifteen years for a
person convicted of unlawful possession of a firearm who has
three prior convictions for a “violent felony” or “serious drug
offense.”
Id.
Petitioner concedes that he has two prior
convictions for a serious drug offense for purposes of the
fifteen-year mandatory minimum under the ACCA, but disputes that
he has a prior conviction for a violent felony.
In support of
his motion to vacate his sentence, he relies on Johnson v.
United States, 135 S. Ct. 2551 (2015), which invalidated the
1
residual clause of the ACCA’s definition of the term “violent
felony” as unconstitutionally vague.
Id. at 2557.
Without the
residual clause to fall back on, he argues, the government is
unable to prove that his sentence comports with the ACCA.
The government does not take issue with petitioner’s
assertion that his sentence was enhanced under the residual
clause of the ACCA.
Instead, it argues that a collateral attack
waiver in the written plea agreement bars his claim.
In
addition, it argues that the claim is meritless because
petitioner has two prior convictions that support his sentence
under another part of the ACCA’s definition of a “violent
felony,” known as the “elements clause,” which survived Johnson.
See 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” as
any crime that “has as an element the use, attempted use, or
threatened use of physical force against the person of
another”); see Stokeling v. United States, 139 S.Ct. 544 (2019).
I agree with both of the government’s arguments and
therefore deny the motion.
In doing so, however, I grant a
certificate of appealability.
I.
Background
Petitioner pleaded guilty pursuant to a written plea
agreement in which he stipulated that his criminal record
included four ACCA predicate offenses: two prior convictions for
a serious drug offense and two prior convictions for a violent
2
felony.
In accordance with petitioner’s concession that he was
subject to increased punishment under the ACCA, the plea
agreement stipulated that his offense carried a mandatory
minimum sentence of fifteen years.
The plea agreement contained the following collateral
attack waiver:
The defendant acknowledges that under certain
circumstances he is entitled to challenge his
conviction and sentence. The defendant agrees not to
appeal or collaterally attack in any proceeding,
including but not limited to a motion under 28 U.S.C.
§ 2255 and/or § 2241, the conviction or sentence
imposed by the Court if that sentence does not exceed
188 months, a 5-year term of supervised release, and a
$150,000 fine, even if the Court imposes such a
sentence based on an analysis different from that
specified above. The Government and the defendant
agree not to appeal or collaterally attack the Court’s
imposition of a sentence of imprisonment concurrently
or consecutively, in whole or in part, with any other
sentence. The defendant acknowledges that he is
knowingly and intelligently waiving these rights.
Furthermore, the parties agree that any challenge to
the defendant's sentence that is not foreclosed by
this provision will be limited to that portion of the
sentencing calculation that is inconsistent with (or
not addressed by) this waiver.
At the change of plea hearing, Judge Burns canvassed
petitioner regarding the plea agreement.
Petitioner stated
under oath that he had read the agreement, understood its
contents, and was pleading guilty of his own free will.
Regarding the collateral attack waiver, Judge Burns stated,
“[A]s long as I don’t give you a sentence which exceeds 188
months, a 5-year term of supervised release, and a $150,000
3
fine, you are giving up your right to take an appeal from my
sentence or to attack it by any other legal means.
understand that, sir?”
Do you
Petitioner responded, “Yes, ma’am.”
On August 2, 2012, Judge Burns imposed the mandatory
minimum sentence of fifteen years required by the ACCA.
Petitioner did not appeal.
Petitioner brought the present
motion after the Supreme Court ruled that Johnson applies
retroactively to cases on initial collateral review.
See Welch
v. United States, 136 S.Ct. 1257, 1261 (2016).
II.
Discussion
A. Petitioner’s Collateral Attack Waiver Bars His Claim
In response to petitioner’s motion, the government first
argues that petitioner’s challenge to his sentence is barred by
the collateral attack waiver in the plea agreement.
The Second
Circuit has held that a knowing and voluntary waiver of the
right to collaterally attack a sentence bars a claim that the
sentence is invalid after Johnson.
See Sanford v. United
States, 841 F.3d 578, 580 (2d Cir. 2016).
Petitioner does not
contend that the waiver in his plea agreement was other than
knowing and voluntary.
Rather, he distinguishes Sanford on the
ground that it involved a challenge to a sentence imposed under
the career offender provision of the Sentencing Guidelines.
4
He
submits that considerations of fairness and equity weigh heavily
in favor of reading Sanford as narrowly as possible. 1
I agree with the government that petitioner’s challenge to
his sentence is barred by the collateral attack waiver in the
plea agreement.
The holding in Sanford reflects the established
principle that a defendant who has knowingly and voluntarily
waived the right to attack his sentence as part of a plea
agreement may not attack the legality of a sentence that was
imposed in conformity with the agreement.
As Sanford
recognizes, exceptions to the enforceability of an otherwise
valid waiver are available in narrowly circumscribed
circumstances, for example, “when the sentence was imposed based
on constitutionally impermissible factors, such as ethnic,
racial or other prohibited biases.”
Id. at 580 (quoting United
States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000)).
1
But a
Petitioner also argues that his Johnson claim is available
under the Supreme Court’s recent decision in Class v. United
States, 138 S. Ct. 798 (2018). Class held that “a guilty plea
[does not] bar a criminal defendant from later appealing his
conviction on the ground that the statute of conviction violates
the Constitution,” even when the defendant waived his right to
appeal his sentence. Id. at 801-802. However, in Class, by
challenging the constitutionality of the statute of conviction,
the defendant questioned the state’s very power to prosecute
him. Id. at 805. Here, by contrast, petitioner only attacks
his sentence. See United States v. Peppers, 899 F.3d 211, 225
n.7 (3d Cir. 2018) (“[Class] does not bear on our resolution of
whether [the defendant’s] plea precludes his Johnson claim
because [the defendant] is not collaterally attacking the
constitutionality of the statute underlying his conviction.”).
5
change in the law does not in itself create such an exceptional
circumstance.
See Sanford, 841 F.3d at 580 (stating that
defendant’s inability to foresee change in the law does not
provide a basis for failing to enforce collateral attack waiver;
possibility of favorable change in the law after a plea is
simply one of the risks that accompanies pleas and plea
agreements).
In the absence of an extraordinary circumstance of the type
referred to in Sanford, the principle underlying Sanford
requires enforcement of a collateral attack waiver in a plea
agreement in accordance with its terms.
See Sanford, 841 F.3d
at 581 (“Sanford’s collateral attack waiver therefore bars the
present motion because the waiver encompasses any challenge to
his sentence.”).
Petitioner’s attempt to distinguish Sanford on
the ground that it involved a sentence under the career offender
provision of the Guidelines is therefore unavailing. 2
B. Petitioner’s Armed Career Criminal Status
Turning to the merits, petitioner’s sentence comports with
the ACCA if he has at least one prior conviction for a “violent
felony” within the meaning of the elements clause, 18 U.S.C. §
2
Nothing in Sanford suggests that the Court would have permitted
the claim to proceed if the petitioner’s sentence had been
enhanced under the ACCA. Even so, because Sanford does not
necessarily foreclose petitioner’s argument, a certificate of
appealability is granted on this issue.
6
924(e)(2)(B)(i).
The government contends that he has two such
convictions: a Connecticut conviction for second degree assault
and a Georgia conviction for aggravated assault. 3
Petitioner
contends that neither conviction can be relied on to support his
sentence.
I think the record is sufficient to establish that
both convictions are predicate offenses under the ACCA.
The elements clause defines a violent felony as any crime
that “(1) has as an element the use, attempted use, or
threatened use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B)(i).
employment of physical force.
(2004).
The word “use” requires active
Leocal v. Ashcroft, 543 U.S. 1, 9
“[T]he phrase ‘physical force’ means violent force –
that is, force capable of causing physical pain or injury to
another person.”
(Curtis) Johnson v. United States, 559 U.S.
133, 140 (2010).
The issue is therefore whether either of the
assault convictions on which the government relies includes, as
an element, the use of violent force within the meaning of the
ACCA.
“The Supreme Court has instructed that in determining
whether a state criminal statute qualifies as an ACCA predicate
offense, courts are to use the so-called ‘categorical approach,’
3
The government no longer relies on petitioner’s Connecticut
conviction for conspiracy to commit first degree assault. ECF
No. 15 at 2.
7
and, when the state statute has subdivisions, courts are to use
the so-called ‘modified categorical approach.’”
Villanueva v.
United States, 893 F.3d 123, 128 (2d Cir. 2018) (citing Descamps
v. United States, 570 U.S. 254 (2013)).
“Under [the modified
categorical] approach, a sentencing court looks to a limited
class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of.”
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); see
Descamps, 570 U.S. at 262 (sentencing courts are permitted to
“examine a limited class of documents to determine which of a
statute’s alternative elements formed the basis of the
defendant’s prior conviction”); see also Shepard v. United
States, 544 U.S. 13, 26 (2005) (limiting inquiry to “the terms
of the charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant . . . , or to
some comparable judicial record of this information”).
Under
either the general or modified categorical approach, courts
ascertain the minimum criminal conduct necessary for conviction
under the applicable statute or subsection.
Villanueva, 893
F.3d at 128.
1. Connecticut Conviction for Second Degree Assault
On October 10, 2000, petitioner was convicted in
Connecticut Superior Court of assault in the second degree in
8
violation of Conn. Gen. Stat. § 53a-60.
At that time, the
statute provided as follows:
(a) A person is guilty of assault in the second degree
when: (1) With intent to cause serious physical injury
to another person, he causes such injury to such
person or to a third person; or (2) with intent to
cause physical injury to another person, he causes
such injury to such person or to a third person by
means of a deadly weapon or a dangerous instrument; or
(3) he recklessly causes serious physical injury to
another person by means of a deadly weapon or a
dangerous instrument; or (4) for a purpose other than
lawful medical or therapeutic treatment, he
intentionally causes stupor, unconsciousness or other
physical impairment or injury to another person by
administering to such person, without his consent, a
drug, substance or preparation capable of producing
the same; or (5) he is a parolee from a correctional
institution and with intent to cause physical injury
to an employee of the department of correction or an
employee or member of the board of parole, he causes
physical injury to such employee or member.
Conn. Gen. Stat. § 53a-60.
Petitioner argues that this conviction cannot serve as a
predicate offense for purposes of the ACCA because the record
does not establish the subsection of the statute under which he
pleaded guilty and at least one of the subsections does not
require violent force.
See United States v. Moreno, 821 F.3d
223, 228 (2d Cir. 2016) (a violation of Conn. Gen. Stat. § 53a60 is not categorically a “crime of violence” under 18 U.S.C. §
16(a) because at least one of its subsections does not
constitute such a crime).
The government responds that
9
petitioner’s conviction necessarily rested on a violation of
subsection (2), which does qualify as a violent felony.
That a guilty plea necessarily rested on the elements of a
predicate offense under the ACCA may be shown by “proof that the
charge was narrowed to include only predicate conduct.”
States v. Savage, 542 F.3d 959, 996 (2d Cir. 2008).
United
In support
of its argument here, the government points to the transcript of
the hearing at which petitioner pleaded guilty.
ECF 11-8.
In
the government’s view, the transcript establishes that
petitioner was convicted under subsection (2).
I agree.
As the transcript shows, the judge explained to petitioner
that “[a]n assault in the second degree occurs when a person
with intent to cause another person physical pain causes that
person or a third person physical pain, but does so by using a
deadly weapon or dangerous instrument.”
ECF No. 11-8 at 6.
judge then asked petitioner, “Do you understand?”
responded, “Yes, sir.”
Id.
The
Petitioner
The judge’s description of the
offense to which petitioner pleaded guilty maps onto § 53a60(a)(2).
See id.
In Moreno, the Second Circuit stated that, “[n]either the
description of the charge at the plea colloquy nor the judgment
of conviction identified which of [§ 53a-60]’s six subsections
applied.”
821 F.3d at 225-26.
Here, in contrast, the judge’s
description of the charge during the plea colloquy adequately
10
served to identify the applicable subsection.
did not refer to the subsection by number.
True, the judge
But there can be no
doubt the judge was referring to subsection (2).
Therefore, I
conclude that the judge’s description of the charge provides
sufficient proof that petitioner’s guilty plea rested on the
elements of the offense defined by subsection (2).
A conviction under Conn. Gen. Stat. § 53a-60(a)(2) is
categorically a violent felony under the elements clause.
To
violate this statute, one must both intend to cause physical
injury to another and actually cause injury by means of a deadly
weapon.
The Second Circuit has held that an offense having
these elements is categorically a violent felony under the ACCA.
See United States v. Walker, 442 F.3d 787, 788 (2d Cir. 2006)
(attempted assault in the second degree as similarly defined in
New York is categorically a violent felony). 4
2. Georgia Conviction for Aggravated Assault
On May 5, 2006, petitioner was convicted of aggravated
assault in violation of Georgia Code § 16-5-21.
At the time of
his conviction, the statute defined aggravated assault as
follows:
4
Even though I readily conclude that the judge’s description of
the offense during the plea colloquy is sufficient to establish
that petitioner’s guilty plea necessarily rested on the elements
set forth in subsection (2), a certificate of appealability is
granted on this issue as well.
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(a)
A person commits the offense of aggravated
assault when he or she assaults:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object,
device, or instrument which, when used
offensively against a person, is likely to
or actually does result in serious bodily
injury; or
(3) A person or persons without legal
justification by discharging a firearm from
within a motor vehicle toward a person or
persons.
Ga. Gen. Stat. § 16-5-21 (effective until June 30, 2006).
“Assault,” in turn, was defined as “(1) “[A]ttempt[ing] to
commit a violent injury to the person of another; or (2)
Commit[ting] an act which places another person in reasonable
apprehension of immediately receiving a violent injury.”
Ga.
Gen. Stat. § 16-5-20(a) (effective until June 20, 2006).
The Eleventh Circuit has determined that the aggravated
assault statute is “clearly divisible as to the aggravator
component of the statute.”
United States v. Morales-Alonso, 878
F.3d 1311, 1316 (11th Cir. 2018).
In other words, the statute
sets forth three different crimes, each involving a criminal
assault aggravated by one of the three enumerated statutory
factors.
Id.
A court may therefore use the modified
categorical approach, look at the subsection the defendant
violated, and determine whether it constitutes a violent felony.
Id.
12
Petitioner contends that the record fails to establish the
subsection under which he pleaded guilty and not every
subsection has as an element the use, attempted use or
threatened use of violent force.
With regard to the latter
point, petitioner may be correct.
Georgia’s assault statute,
Ga. Gen. Stat. § 16-5-20(a), is unusual in that a violation does
not require proof of specific intent to cause reasonable
apprehension of imminent harm.
491, 493-94 (2016).
See Patterson v. State, 299 Ga.
All that is required is the general intent
to do the act that causes the reasonable apprehension.
Id.
If
the act that places another in reasonable apprehension involves
use of a deadly weapon, such as a handgun, or an object likely
to cause serious injury when used offensively, such as a car,
the assault may be punishable as an aggravated assault in
violation of § 16-5-21(a)(2).
See Patterson, 299 Ga. at 495;
see also id. at 513-14 (Blackwell, J., dissenting).
The government argues that even if a violation of
subsection (2) of Georgia’s aggravated assault statute is not
categorically a violent felony, petitioner’s conviction
qualifies as an ACCA predicate because his guilty plea
necessarily rested on a violation of subsection (1), punishing
assault with intent to murder, rape or rob.
The government
relies on a court record of petitioner’s conviction, entitled
“Final Disposition.”
EC 11-6, 2.
13
The document shows that
petitioner was charged with “rape” and, after plea negotiations,
pleaded guilty to a “lesser included offense” of “aggravated
assault.”
On the basis of this record, the government argues
that petitioner’s guilty plea must have been based on subsection
(1).
I agree.
No case has been cited or found addressing the issue
whether a violation of § 16-5-21(a)(1) categorically qualifies
as a violent felony under the ACCA.
However, petitioner does
not suggest that one can (a) assault a victim, (b) with intent
to murder, rape or rob the victim, (c) by an act that puts the
victim in reasonable apprehension of immediately receiving a
violent injury, (d) without using, attempting to use or
threatening to use physical force.
unavailing in any event.
Such a suggestion would be
To come up with a scenario in which a
person could violate this subsection of the statute without
using, attempting to use or threatening to use violent force
requires use of “legal imagination,” which courts have been
cautioned to avoid.
(2013).
See Moncrieffe v. Holder, 569 U.S. 184, 191
To conclude that a conviction under this subsection is
not categorically a predicate offense, there would have to be a
realistic probability, not a theoretical possibility, that the
state would use the statute to prosecute non-predicate conduct.
14
See id.
Given the current state of the law, no such realistic
probability exists. 5
III. Conclusion
The motion to vacate petitioner’s sentence is hereby
denied.
A certificate of appealability is set forth below.
The Clerk may enter judgment and close the case.
So ordered this 26th day of September, 2019.
/s/ RNC
Robert N. Chatigny
United States District Judge
Certificate of Appealability
A certificate of appealability is granted with regard to
the following issues: (1) whether the collateral attack waiver
bars petitioner’s claim; if not, (2) whether the record is
sufficient to support a finding that he was convicted of
violating Conn. Gen. Stat. § 53a-60(a)(2); and, if not, (3)
whether his aggravated assault conviction qualifies as a violent
felony under the ACCA.
5
Whether a conviction under Georgia’s aggravated assault
statute is categorically a violent felony is the subject of
ongoing litigation in the Eleventh Circuit. See United States
v. Moss, 920 F.3d 752, 758 (11th Cir. 2019), reh’g en banc
granted and vacated by 928 F.3d 1340 (11th Cir. 2019).
Accordingly, a certificate of appealability is granted with
regard to the government’s reliance on petitioner’s aggravated
assault conviction as support for his enhanced sentence.
15
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