SOSA v. UNITED STATES OF AMERICA

Filing 17

OPINION. Signed by Judge Dickinson R. Debevoise on 2/12/2015. (anr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN SOSA,

Civil Action No. 12-1725 (DRD)
Petitioner,

v.

OPINION

UNITED STATES OF AMERICA,
Respondent.

APPEARANCES:
JOHN SOSA, #17399-050
F.C.I. Edgefield
P.O. Box 725
Edgefield, South Carolina 29824
Petitioner Pro Se
JOSE ALMONTE, ASSISTANT UNITED STATES ATTORNEY
UNITED STATES ATTORNEY
970 Broad Street
Newark, New Jersey 07101
Attorneys for Respondent
Debevoise, Senior U.S. District Judge
John Sosa filed a petition for a writ of error coram nobis challenging a judgment of
conviction filed on September 14, 1994, in United States v. Sosa, Crim. No. 94-210 (JCL) (D.N.J.
Sept. 14, 1994), after he pled guilty to possession of a firearm by a person who has been convicted
of a crime punishable by imprisonment for a term exceeding one year, contrary to 18 U.S.C. §
922(g)(1). The United States filed an Answer and Sosa filed a Reply. After carefully reviewing
the arguments of the parties and the record of the 1994 conviction, this Court will deny coram
nobis relief.

I. BACKGROUND
A one-count information charged that Sosa, having been convicted of a crime punishable
by imprisonment for a term exceeding one year in the State of New Jersey, knowingly possessed,
in and affecting interstate commerce, a Sturm Ruger 357 magnum revolver and a .22 Burgo
revolver, which had been transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1)
and 2. 1

See United States v. Sosa, Crim. No. 94-210 (JCL).

On April 25, 1994, while

represented by counsel, Sosa pled guilty to the information in accordance with a written plea
agreement dated February 9, 1994. On September 14, 1994, Judge Lifland sentenced Sosa to a
39-month term of imprisonment, which Sosa has served.
On March 19, 2012, Sosa filed a petition for writ of error coram nobis, pursuant to 28
U.S.C. § 1651. Sosa challenges the expired 1994 conviction on the ground that this Court lacked
jurisdiction to convict him for violation of § 922(g) because he had not been convicted of an
offense “punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).
He argues that his attorney was constitutionally ineffective in failing to discern that he had not
been convicted of a crime punishable by imprisonment for a term exceeding one year and that he
could not have challenged the conviction earlier because he was not aware of the legal basis for
the claim until the Supreme Court decided Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010),

At the time Sosa committed the offense in 1993, § 922(g) made it unlawful for any person “who
has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce,
any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).
1

2

and the Fourth Circuit decided United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).
Sosa acknowledges that he was convicted on May 17, 1991, of third-degree burglary, contrary to
N.J. STAT. ANN. § 2C:18-2, and sentenced to three years on probation, and that he was convicted
on December 18, 1992, of third-degree terroristic threats, contrary to N.J. STAT. ANN. 2C:12-3,
and third-degree unlawful possession of a weapon, contrary to N.J. STAT. ANN. § 2C:39-41, and
sentenced to four years on probation. But he maintains that none of these offenses was punishable
by imprisonment for a term exceeding one year because the statutory presumption of nonimprisonment set forth in N.J. STAT. ANN. § 2C:44-1(e) “prohibited [the court] from sentencing
[him] to a state prison term ranging from three to five years.” (ECF No. 1-1 at 8.) Sosa further
contends that he is presently suffering continuing adverse consequences of the wrongful 1994
conviction because it was used to enhance the 210-month sentence he is now serving for
conspiracy to distribute a controlled substance. See United States v. Sosa, Crim. No. 04-0412
(KSH) judgment (D.N.J. June 6, 2005).
In the Answer, the United States asserts that Sosa is not entitled to coram nobis relief
because Sosa has not shown error with respect to the 1994 conviction, Sosa has not established
sound reasons for failing to seek relief earlier, and Sosa has failed to establish that his attorney in
the 1994 case was constitutionally ineffective. Sosa filed a Reply in which he expands on the
arguments he raised in his petition. He argues that, although crimes of the third degree are
punishable by three to five years in prison, see N.J. STAT. ANN. § 2C:43-6(a)(3), under § 2C:441(e), “persons convicted of ‘crimes of the third degree,’ or lesser degree offenses are subject to the
presumption of non-incarceration except where the court makes a specific finding that there are
aggravating factors which make imprisonment necessary.” (ECF No. 15 at 13.) He reasons that
3

his convictions were not punishable by imprisonment for a term exceeding one year because his
sentencing judges did not find that the aggravating factors made imprisonment for a term
exceeding one year necessary.
II. DISCUSSION
A. Jurisdiction
This Court has the power to grant a writ of error coram nobis and vacate an expired
conviction to correct errors of a fundamental character, such as deprivation of counsel in violation
of the Sixth Amendment, provided “no other remedy [is] then available and sound reasons exist[]
for failure to seek appropriate earlier relief.” United States v. Morgan, 346 U.S. 502, 513 (1954).
“To confine the use of coram nobis so that finality is not at risk in a great number of cases, [the
Supreme Court] limit[ed] the availability of the writ to ‘extraordinary’ cases presenting
circumstances compelling its use to ‘achieve justice.’” United States v. Denedo, 556 U.S. 904,
911 (2009) (quoting Morgan, 346 U.S. at 511). The authority to issue a writ of coram nobis is
conferred by the All Writs Act, which permits “courts established by Act of Congress” to issue
“all writs necessary or appropriate in aid of their respective jurisdictions.” 28 U.S.C. § 1651(a);
see also Denedo, 556 U.S. at 911. “Because coram nobis is but an extraordinary tool to correct a
legal or factual error, an application for the writ is properly viewed as a belated extension of the
original proceeding during which the error allegedly transpired.” Denedo, 556 U.S. at 912-13.
Although this Court may have jurisdiction to issue a writ of coram nobis in this case, Soto is not
entitled to such relief because he has not asserted a fundamental error that rendered his 1994
conviction invalid.

4

B. The Merits
In his coram nobis petition, Sosa argues that this Court lacked jurisdiction to find him guilty
of violating 18 U.S.C. § 922(g) because, when he possessed the firearms, he had not been convicted
of a crime punishable by imprisonment for a term exceeding one year. In order to establish a
violation of § 922(g)(1) 2 , the government must prove beyond a reasonable doubt: “(1) the
defendant has been convicted of a crime punishable by imprisonment for a term exceeding one
year; (2) the defendant knowingly possessed the firearm; (3) the firearm had travelled in interstate
commerce.” United States v. Higdon, 638 F.3d 233, 239-40 (3d Cir. 2011); accord United States
v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000). What constitutes a conviction for a “crime punishable
by imprisonment for a term exceeding one year” “shall be determined in accordance with the law
of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20).
The Presentence Investigation Report for Sosa’s 1994 conviction shows that the §
922(g)(1) conviction was predicated on three New Jersey convictions. On May 17, 1991, based
on a guilty plea to one count of third-degree burglary, contrary to N.J. STAT. ANN. § 2C:18-2,
the Superior Court of New Jersey, Law Division, Union County, sentenced Sosa to three years on
probation. On December 18, 1992, the Superior Court of New Jersey, Law Division, Essex
County, sentenced Sosa to a 60-day term of imprisonment and four years on probation based on
his guilty plea to one count of third-degree terroristic threats, in violation of N.J. STAT. ANN. §
2C:12-3, and one count of third-degree unlawful possession of a weapon, contrary to N.J. STAT.
ANN. § 2C:39-4a.

2

See supra n.1.
5

Sosa contends that his 1991 conviction for third-degree burglary in violation of N.J. STAT.
ANN. § 2C:18-2 was not “punishable by imprisonment for a term exceeding one year” within 18
U.S.C. § 922(g) because he was sentenced pursuant to N.J. STAT. ANN. § 2C:44-1(e), which
provided for a presumption against imprisonment. New Jersey law in effect at the time of the
commission of Sosa’s 1991 offense provided that a person convicted of a crime of the third degree
may be sentenced to imprisonment “for a specific term of years which shall be fixed by the court
and shall be between three years and five years.” N.J. STAT. ANN. § 2C:43-6(a)(3). Sosa is
correct that N.J. STAT. ANN. § 2C:44-1(e) provided for a presumption against imprisonment for
first-time offenders, such as Sosa. That section provides:
The court shall deal with a person convicted of an offense other than a crime of the
first or second degree, who has not previously been convicted of an offense, without
imposing a sentence of imprisonment unless, having regard to the nature and
circumstances of the offense and the history, character and condition of the
defendant, it is of the opinion that his imprisonment is necessary for the protection
of the public under the criteria set forth in subsection [N.J. STAT. ANN. § 2C:441(a)].
N.J. STAT. ANN. § 2C:44-1(e).
Section 2C:44-1(e) allows the presumption of non-incarceration to be overcome if the
sentencing judge “is of the opinion that [the defendant’s] imprisonment is necessary for the
protection of the public.” N.J. STAT. ANN. § 2C:44-1(e). As the New Jersey Supreme Court
explained in State v. Gardner, 113 N.J. 510, 517-18 (1989),
[B]efore the presumption against imprisonment of a first offender who pleads guilty
to a crime of the third degree may be overcome, the sentencing court must be
persuaded by a standard that is higher than “clear and convincing” evidence that
incarceration is necessary. And once the presumption has been overcome, the
defendant must be sentenced according to the statutory guidelines . . . . For a thirddegree offense, that would entail a prison term ranging from three to five years,
N.J.S.A. 2C:43-6(a)(3)[.]
6

Id. at pp. 517-18 (emphasis in original) (citation omitted); see also State v Natale, 184 N.J. 458,
483 n.10 (2005) 3 (“When sentencing, a court first must make the ‘in-out’ decision - whether a
term of imprisonment is appropriate in light of the relevant presumptions for and against
incarceration . . . The presumptions in favor of imprisonment and non-imprisonment may be
overcome as explained in N.J.S.A. 2C:44-1(d) and (e)[.]”); State v. Jabbour, 118 N.J. 1, 5 (1990)
(“When sentencing, the trial court must decide whether incarceration is warranted, taking into
account the presumption for and against imprisonment. Then the court must determine the length
of the sentence.”) (citations omitted).
Citing Gardner, the United States Court of Appeals for the First Circuit determined in
United States v. Minnick, 949 F.2d 8, 9-10 (1st Cir. 1991), that under New Jersey law, a first
offense conviction of a third-degree crime is “punishable by imprisonment for a term exceeding
one year,” within the meaning of 18 U.S.C. § 922(g)(1), because a sentencing judge could impose
a three to five-year prison sentence for such a conviction pursuant to N.J. STAT. ANN. ' 2C:441(e). The Court of Appeals observed that federal gun control legislation was enacted to keep
firearms “away from persons, such as those convicted of serious crimes, who might be expected
to misuse them.” Id. (citation omitted). The court explained that “[c]onviction of a third-degree
crime [in New Jersey] does not of itself, then, signify that an offender is so threatening to the public
that he must be incarcerated. But whether a prison sentence was actually imposed is irrelevant to

3

To satisfy the Sixth Amendment under Blakely v. Washington, 542 U.S. 296 (2004) and United
States v. Booker, 543 U.S. 220 (2005), the Natale court eliminated presumptive terms of
imprisonment, which, in the case of a third-degree crime, was four years. Natale, 184 N.J. at 483.
7

the purpose of § 922, which is to identify those people whose criminal backgrounds indicate
unreliability with respect to firearms.” Id. at 10. The Minnick court reasoned that third degree
offenses in New Jersey identify those people whose criminal backgrounds indicate unreliability to
possess firearms, particularly since a third degree New Jersey conviction prevents an offender from
obtaining a gun permit in New Jersey.4
In this case, Sosa’s first conviction for third-degree burglary exposed him to a three to fiveyear term of imprisonment. See N.J. STAT. ANN. §§ 2C:44-1(e), 2C:43-6(a)(3); Natale, 184 N.J.
at 483; Gardner, 113 N.J. at 517-18. Accordingly, his third-degree burglary conviction was
punishable by imprisonment for a term exceeding one year within the meaning of § 922(g), see
Minnick, 949 F.2d at 9-10; Henries v. United States, Civ. No. 05-5013 (SDW), 2008 WL 2386170,
*6-7 (D.N.J. Jun. 9, 2008), and Sosa’s counsel was not constitutionally ineffective in failing to
challenge his 1994 conviction on this basis.
Sosa argues, nevertheless, that Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), as
interpreted by United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), undermines the conclusion
that his first offender conviction for third-degree burglary was punishable by imprisonment for a
term exceeding one year because his New Jersey sentencing court found that the aggravating
factors did not warrant incarceration.

Carachuri-Rosendo involved the question of whether

New Jersey law prohibits “any person who has been convicted of any crime” from obtaining a
gun permit. See N.J. STAT. ANN. § 2C:58-3(c)(1). N.J. STAT. ANN. § 2C:1-4(a) provides that
an offense “for which a sentence of imprisonment in excess of 6 months is authorized, constitutes
a crime within the meaning of the Constitution of this State. Crimes are designated in this code
as being of the first, second, third or fourth degree.” N.J. STAT. ANN. § 2C:1-4(a). By contrast,
offenses designated in the code as disorderly persons offenses are not crimes. See N.J. STAT.
ANN. § 2C:1-4(b); United States v. Booker, 270 F. App’x 176, 180 n.3 (3d Cir. 2008).
4

8

Carachuri-Rosendo, who had been ordered removed, was eligible to apply for cancellation of
removal. The Board of Immigration Appeals and the Court of Appeals had ruled that he was
ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3) because he had been convicted
of an aggravated felony, since he had been convicted of two misdemeanors in Texas and, under
Texas law, a person found guilty of a second misdemeanor was eligible for a sentencing
enhancement if the state elected to seek the enhancement based on criminal history. The Court
of Appeals reasoned that, “if the conduct proscribed by the state offense could have been
prosecuted as a felony,” had it been prosecuted in federal court, then the conviction qualified as
an aggravated felony under § 1229b(a)(3). Carachuri-Rosendo, 560 U.S. at 572 (quoting 570 F.3d
263, 267 (5th Cir. 2009)). The Supreme Court reversed, holding that Carachuri-Rosendo’s
second misdemeanor conviction, for which he was sentenced to 10 days for the unauthorized
possession of one Xanax, did not qualify as an aggravated felony, punishable by imprisonment for
more than one year, where the Texas prosecutor had not charged or sought the recidivist
enhancement. The Court reasoned that § 1229b(a)(3) “limits the Attorney General’s cancellation
authority only when the noncitizen has actually been ‘convicted of a[n] aggravated felony’ - not
when he merely could have been convicted of a felony but was not.” Carachuri-Rosendo, 560
U.S. at 578 (quoting 8 U.S.C. § 1229b(a)(3)).
Following the reasoning of Carachuri-Rosendo, the Fourth Circuit held in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011), that Simmons’ North Carolina conviction for possession
with intent to distribute no more than 10 pounds of marijuana was not punishable by imprisonment
for more than one year where the state prosecutor had not satisfied the requirements of North
Carolina law for the imposition of a sentence exceeding 12 months. Under North Carolina law,
9

“an offender can receive an aggravated sentence only if: (1) North Carolina provides him with
30-days notice of its intent to prove the necessary aggravating factors, N.C. Gen. Stat. § 15A1340.16(a6); (2) he admits (or a jury finds) the existence of those factors, id. § 15A:1340.16(a1);
and (3) the sentencing judge issues written findings justifying such a sentence. Id. § 15A:134016(c).” Simmons, 649 F.3d at 245. The Fourth Circuit found that, even though the state statute
setting forth the predicate offense proscribed only one type of conduct - possession with intent to
sell marijuana - North Carolina had in essence created two offenses, one of which was punishable
by up to one year in prison and the other which was punishable by more than one year. Id. at 247.
The Fourth Circuit held that, because North Carolina had charged and found Simmons guilty of
possession punishable by up to one year in prison, Simmons was not convicted of a North Carolina
offense punishable by more than one year under the Controlled Substances Act.
The Fourth Circuit clarified, and limited, the holding of Simmons in United States v. Kerr,
737 F.3d 33 (4th Cir. 2013). In that case, a jury convicted Kerr of possession of a firearm after
being previously convicted of a crime punishable by imprisonment for a term exceeding one year,
in violation of 18 U.S.C. § 922(g)(1), and the district court determined that he qualified as an
armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e). On direct
appeal, relying on Simmons, Kerr argued that none of his three North Carolina convictions for
breaking and entering was punishable by one year. The Fourth Circuit noted that, at the time of
Kerr’s North Carolina convictions, the law provided for sentencing within a mitigated range, a
presumptive range, or an aggravated range, but the judge had the statutory authority to sentence in
the aggravated range only if the state had provided the defendant with written notice of its intent
to prove the aggravating factors at least 30 days before trial or entry of a plea. Because no such
10

notice had been provided to Kerr, the maximum presumptive sentence for each of Kerr’s three
breaking and entering convictions was 14 months. The state sentencing judge
found, however, that the factors in mitigation outweighed those in aggravation and
that a mitigated sentence was justified. The judge then exercised her discretion to
depart from the presumptive range and sentenced Kerr in the mitigated range. The
mitigated range included a possible maximum sentence of 11 months’
imprisonment. Ultimately, the judge sentenced Kerr to 8 to 10 months’
imprisonment.
Kerr, 737 F.3d at 36.
Relying on Carachuri-Rosendo and Simmons, Kerr argued on direct appeal that because
the state sentencing judge decided to sentence him in the mitigated range, and the maximum
sentence in the mitigated range was 11 months, he was not convicted of a state crime punishable
by imprisonment in excess of one year. The Fourth Circuit rejected Kerr’s argument and found
that, because the North Carolina judge “remained free at all times to sentence Kerr to a presumptive
prison term of up to 14 months,” “the maximum possible prison sentence that Kerr faced for his
prior state convictions exceeded one year[.]” Kerr, 737 F.3d at 38-39 (emphasis in original).
Carachuri-Rosendo and Simmons do not alter this Court’s conclusion that Sosa’s first
third-degree conviction was punishable by imprisonment for a term exceeding one year. N.J.
STAT. ANN. § 2C:44-1(e), which sets forth the presumption of non-imprisonment for a first
offense, expressly authorized the sentencing judge to impose a five year term of imprisonment for
Sosa’s first conviction of a third-degree crime. See N.J. STAT. ANN. § 2C:44-1(e) (“The court
shall deal with a person convicted of a[ third-degree] offense . . , who has not previously been
convicted of an offense, without imposing a sentence of imprisonment unless, having regard to the
nature and circumstances of the offense and the history, character and condition of the defendant,
11

it is of the opinion that his imprisonment is necessary for the protection of the public under the
criteria set forth in [N.J. STAT. ANN. § 2C:44-1(a)]). Thus, as in Kerr, the New Jersey judge
remained free at all times to sentence Sosa to a prison term of up to five years and his 1991 initial
third-degree burglary conviction was “punishable by a term of imprisonment exceeding one year”
within the meaning of 18 U.S.C. § 922(g)(1). See Minnick, 949 F.2d at 9-10; Gargano v. United
States, 2014 WL 1725736 *6 (S.D.N.Y. Apr. 30, 2014) (distinguishing Carachuri-Rosendo and
Simmons and holding that, although Gargano was sentenced to one year of probation for his first
third-degree New Jersey conviction, he was convicted of a crime punishable by imprisonment for
more than one year because “even without a recidivist finding, Gargano’s New Jersey conviction
alone exposed him to the possibility that the sentencing court could sentence him to five years
imprisonment based on its balancing of the aggravating and mitigating factors.”) (emphasis in
original); Battle v. United States, 2012 WL 1067943 (S.D.W.Va. Mar. 29, 2012) (holding that
Batttle’s third-degree New Jersey conviction, for which he received a 36-day sentence, was a crime
punishable by a term of imprisonment in excess of one year).
Sosa also argues that his 1992 New Jersey third-degree felony convictions were not
punishable by incarceration for a term exceeding one year. He relies on N.J. STAT. ANN. §
2C:44-1(e), but he fails to mention that the presumption of non-incarceration applies only to a first
offense.5 See State v. Battle, 256 N.J. Super. 268, 285 (App. Div.), certif. denied, 130 N.J. 393
(1992) (holding that the presumption in favor of a noncustodial sentence under N.J. STAT. ANN.

An “offense” was and continues to be defined in New Jersey as “a crime, disorderly persons
offense or a petty disorderly persons offense unless a particular section of this code is intended to
apply to less than all three.” N.J. STAT. ANN. § 2C:1-14(k).
5

12

§ 2C:44-1(e) did not apply to Battle because the conviction was not his first offense). Finally,
Sosa argues that because none of the sentences imposed for his New Jersey convictions exceeded
one year of incarceration, he was not convicted of a crime punishable by imprisonment for a term
exceeding one year within the meaning of § 922(g). This argument is clearly without merit, as
the actual sentence imposed by a court is irrelevant to the determination of whether the offense
was punishable by a term exceeding one year within the meaning of § 922(g)(1). See Dickerson
v. New Banner Institute, Inc., 460 U.S. 103, (1983), superseded by statute, 18 U.S.C. § 921(a)(20)
(“It was plainly irrelevant to Congress whether the individual in question actually receives a prison
term; [§ 922(g)] imposes disabilities on one convicted of ‘a crime punishable by imprisonment for
a term exceeding one year’”) (emphasis in original).
To summarize, each of Sosa’s three third-degree convictions exposed him to a five-year
term of incarceration. Accordingly, Sosa was convicted of a crime punishable by a term of
imprisonment exceeding one year within the meaning of 18 U.S.C. § 922(g)(1), he has not shown
a fundamental error with respect to his 1994 conviction for violation of § 922(g)(1), and he is not
entitled to a writ of error coram nobis.
III. CONCLUSION
This Court denies the petition for a writ of error coram nobis.

s/Dickinson R. Debevoise
DICKINSON R. DEBEVOISE
U.S.S.D.J.
Dated: February 12, 2015

13