Spencer v. United States of America
Filing
37
MEMORANDUM AND ORDER: For the reasons set forth in the attached memorandum and order, Petitioner's motion to correct his sentence is GRANTED, and his sentence is VACATED. Ordered by Judge LaShann DeArcy Hall on 6/27/2023. (CG)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
PATRICK SPENCER,
v.
Petitioner,
MEMORANDUM AND ORDER
15-CV-1726 (LDH)
UNITED STATES OF AMERICA,
Respondent.
LASHANN DEARCY HALL, United States District Judge:
Patrick Spencer (“Petitioner”) petitions pursuant to 28 U.S.C. § 2255 for a writ of habeas
corpus vacating his conviction and sentence under 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
BACKGROUND
Petitioner was charged in a three-count Superseding Indictment with: (1) possession with
intent to distribute five grams or more of a substance containing cocaine base and heroin, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii) and 841(b)(1)(C); (2) using and carrying a
firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i); and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2), and 924(e). (Superseding Indictment at 1–2, Case No. 9-cr-512, ECF No.
26.) On January 25, 2011, Petitioner was convicted after a jury trial on all three counts. (Jury
Verdict, Case No. 9-cr-512, ECF No. 61.) At sentencing, the trial court determined that
Petitioner was eligible for a sentencing enhancement under the Armed Career Criminal Act
(“ACCA”), due to four prior convictions involving violent felonies. (Gov’t Mem. L. in Opp’n to
Pet’r’s Mot. to Vacate Sentence, (“Gov’t Opp’n”), 5, ECF No. 34.) Of these, two were New
York state court convictions for attempted armed robbery—in the first and second degree,
respectively. (Id. at 6–7.) Petitioner was consequently sentenced to a custodial term of 300
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months: 60 months on Count One, 60 months on Count Two, and 180 months on Count Three.
(Id. at 7; see also Judgment Order at 3, Case No. 9-cr-512, ECF No. 101.)
STANDARD OF REVIEW
Section 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), permits a prisoner who was sentenced in federal court to move the court which
imposed the sentence to vacate, set aside, or correct the sentence on the grounds that the
sentence: (1) “was imposed in violation of the U.S. Constitution or the laws of the United
States;” or (2) “was entered by a court without jurisdiction to impose the sentence;” or (3)
“exceeded the maximum detention authorized by law;” or (4) “is otherwise subject to collateral
attack.” 28 U.S.C. § 2255; see also Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004)
(quoting same). A § 2255 movant bears the burden to prove the claims in his § 2255 motion by a
preponderance of the evidence. See Triana v. United States, 205 F.3d 36, 40 (2d Cir.
2000) (citing Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978) (“It is, of course, well settled
that in federal habeas corpus proceedings the burden of proving a constitutional claim lies with
the petitioner and that the nature of that burden is the customary civil one of a preponderance of
the evidence.”)).
DISCUSSION
I.
Petitioner’s Conviction for Attempted Armed Robbery in the First Degree
The Armed Career Criminal Act authorizes enhanced sentencing penalties for defendants
who are convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g), and who
also have three previous convictions for either a “violent felony” or “serious drug offense.” 18
U.S.C. § 924(e)(1). ACCA defines a violent felony as “any crime punishable by imprisonment
for a term exceeding one year . . . that (i) has as an element the use, attempted use, or threatened
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use of physical force against the person of another; or (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
Petitioner argues that vacatur of his sentence is warranted because his state convictions
for first-degree and second-degree attempted armed robbery no longer qualify as ACCA
predicates following the Supreme Court’s recent holding in United States v. Taylor, 142 S. Ct.
2015 (2022). (Pet’r’s. Suppl. Mem. Law (“Pet’r’s. Mem.”), ECF No. 31.) In Taylor, the court
held that attempted Hobbs Act robbery did not qualify as a “crime of violence” under 18 U.S.C.
§ 924(c)(3)(A) because no element of the offense required proof that the defendant used,
attempted to use, or threatened to use force. 142 S. Ct. at 2015, 2021, 2025. (“Congress tasked
the courts with a much more straightforward job: Look at the elements of the underlying crime
and ask whether they require the government to prove the use, attempted use, or threatened use
of force. Following that direction in this case, the Fourth Circuit correctly recognized that, to
convict a defendant of attempted Hobbs Act robbery, the government does not have to prove any
of those things.”).
Here, the Government concedes that Petitioner’s conviction second-degree attempted
armed robbery does not meet the definition of a violent felony. (Gov’t Opp’n, at 6, 10 n.1.)
However, the Government stops short of acknowledging that Petitioner is entitled to relief
altogether, asserting that his conviction for first-degree attempted robbery remains a crime of
violence in the wake of Taylor. (Id.) The Court agrees.
To determine whether a state law offense fits ACCA’s definition of a violent felony,
courts employ what is known as the “categorical approach,” which evaluates “whether the
elements of the statute of conviction meet the federal standard.” Borden v. United States, 141
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S.Ct. 1817, 1822 (2021). Importantly, the court must look “only to the statutory definitions—
i.e., the elements—of a defendant’s prior offenses, and not to the particular facts underlying
those convictions,” meaning that a “prior crime [will] qualify as a predicate offense in all cases
or in none.” Descamps v. United States, 570 U.S. 254, 261, 268 (2013) (internal quotations
omitted) (quoting Taylor v. United States, 495 U.S. 575 at 601 (1990)). Where a statute
criminalizes multiple acts in the alternative, that statute is “divisible” and requires the application
of a “modified categorical approach,” under which the court may look at a limited set of
documents (such as the indictment, jury instructions, or plea agreement and colloquy) to identify
the portion of the statute under which the defendant was charged, and apply the standard
categorical approach to that same portion. See United States v. Bertrand, No. 20-CR-547, 2023
WL 22623, at *3 (E.D.N.Y. Jan. 3, 2023) (collecting cases).
Section 160.15 of the New York Penal Code provides that a person is guilty of robbery in
the first degree “when he forcibly steals property and when, in the course of the commission of
the crime or of immediate flight therefrom, he or another participant of the crime: (1) [c]auses
serious physical injury to any person who is not a participant in the crime; or (2) [i]s armed with
a deadly weapon; or (3) [u]ses or threatens the immediate use of a dangerous instrument; or (4)
[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”
N.Y.P.L. § 160.15. By extension, a person is guilty of attempted armed robbery in the first
degree “when, with the intent to forcibly steal property, he or she engages in conduct which
tends to do so,” and either causes serious physical injury; is armed with a deadly weapon; uses or
threatens the immediate use of a dangerous instrument; or displays what appears to be a firearm.
See People v. Osinowo, 813 N.Y.S. 2d 283, 284 (N.Y. App. Div. 2006) (citing N.Y.P.L. §§ 110;
160.15(4)); see also People v. Miller, 87 N.Y.2d 211, 215–217 (1995) (affirming defendant’s
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conviction for attempted first-degree armed robbery where he “possessed the requisite intent to
commit a robbery,” acted “in furtherance of that intent,” and “in the ensuing flight from the
foiled robbery . . . caused serious physical injury to the victim.”).
Because there are “four different aggravating circumstances, or different ways of
committing the offense,” the modified categorical approach applies. Stuckey v. United States,
878 F.3d 62, 67 (2d Cir. 2017) (applying the modified categorical approach to New York’s firstdegree armed robbery statute). Here, the parties do not dispute that Petitioner’s conviction for
first-degree attempted armed robbery was premised on a violation of Section 160.15(4), under
which displaying a firearm is the aggravating circumstance. Applying a modified categorical
approach, the relevant question is whether an attempted armed robbery that involves the display
of a firearm “always requires the government to prove—beyond a reasonable doubt, as an
element of its case—the use, attempted use, or threatened use of force.” Taylor, 142 S. Ct. at
2020. As an apparent matter of first impression in this Circuit, the Court finds that it does. 1
In Taylor, the Supreme Court identified two elements that the Government must prove to
secure a conviction for attempted Hobbs Act robbery: (1) that the defendant “intended to
unlawfully take or obtain personal property by means of actual or threatened force,” and (2) that
the defendant “completed a ‘substantial step’ toward that end.” Id. at 2020. However, the Court
recognized that “there will be cases, appropriately reached by a charge of attempted robbery,
where the actor does not actually harm anyone or even threaten harm,” such as instances where
the defendant “is apprehended before he reaches his robbery victim and thus before he has
Whether attempted first-degree robbery under New York law can serve as a predicate felony for ACCA purposes
does not appear to have been raised in this Circuit post-Taylor. See United States v. Gibson, 55 F.4th 153, 158 (2d
Cir. 2022) (noting that defendant’s appeal “presents fewer issue than might have been raised with respect to the
government’s proffered predicates for the career-offender enhancement” because he “did not challenge the use of his
first-degree robbery conviction as a predicate by raising . . . the issue . . . of whether a robbery attempt can
categorically be a ‘crime of violence.’”).
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actually engaged in threatening conduct.” Id. at 2020–21 (quoting Model Penal Code § 222.1 at
14 (1980)). And, as the Fourth Circuit held in the same case, “an attempt to threaten force does
not constitute an attempt to use force.” United States v. Taylor, 979 F.3d 203, 209 (4th Cir.
2020), aff’d 142 S. Ct. 2015 (2022).
As Petitioner correctly observes, the definition of “forcibly steal[ing] property” under
Section 160.00 is broader than it might appear on its face. (Pet’r’s. Mem. at 7.) Indeed, “[a]
person forcibly steals property and commits robbery when, in the course of committing a
larceny, he uses or threatens the immediate use of physical force upon another person.”
N.Y.P.L. § 160.00 (emphasis added). Thus, a defendant can be convicted of attempted armed
robbery in the first degree if he (1) intends to threaten the use of force upon a person to effect a
larceny; (2) engages in conduct that would tend to bring about this result; and (3) displays what
appears to be a firearm at some point while engaging in that conduct, but ultimately fails to
complete the robbery.
Petitioner asserts that because “completed violations of both statutes encompass forcible
stealing by means of threatened force, [] attempted violations of both statutes encompass
attempted threats of force—the very conduct that Taylor excludes from the elements clause.”
(Pet’r’s Reply Mem. at 3–4, ECF No. 35.) The Court would be inclined to agree, except that
Petitioner fails to appreciate one key distinction between the two statutes: unlike attempted
Hobbs Act robbery, the “display element” of Section 160.15(4) “requires not only that the
defendant consciously displayed something that could reasonably be perceived as a firearm, but
also that the victim actually perceived the display.” People v. Nelson, 112 N.Y.S. 3d 372, 374
(N.Y. App. Div. 2019) (internal quotations omitted) (citations omitted). Thus, there is no
circumstance where the Government could prove attempted first-degree robbery under Section
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160.15(4) without also establishing that the defendant (or his accomplice) threatened the use of
force. See Taylor, 142 S. Ct. at 2022–23 (“Of course, threats can be communicated verbally or
nonverbally—pointing a gun at a cashier conveys a threat no less effectively than passing a note
reading ‘your money or your life.’ But one way or another, some form of communication is
usually required.”). Accordingly, Taylor does not preclude Petitioner’s conviction for attempted
armed robbery in the first degree from serving as an ACCA predicate.
II.
Petitioner’s Conviction for Third-Degree Attempted Sale of a Controlled Substance
Alternatively, Petitioner argues that his prior conviction for attempted criminal sale of a
controlled substance in the third degree is not a “serious drug offense,” and therefore could not
support an ACCA enhancement at sentencing. (Pet’r’s Reply Mem. at 10.) Here, the Court
agrees.
A “serious drug offense” under ACCA includes “offense[s] under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for
which a maximum term of imprisonment of ten years or more is prescribed by law[.]” 18 U.S.C.
§ 924(e)(2)(A)(ii). At the same time, however, a state-level offense cannot give rise to a federal
sentencing enhancement unless the statutes are a “categorical match”—that is, “the prior state
offense must be parallel to or narrower than its federal analog.” United States v. Thompson, 961
F.3d 545, 549 n.6 (2d Cir. 2020). In other words, if a state statute “criminalizes some conduct
that is not criminalized under the analogous federal law,” the state conviction cannot support a
federal sentencing enhancement. See United States v. Townsend, 897 F.3d 66, 72 (2d Cir. 2018).
The Government maintains that Petitioner’s controlled substance conviction is a proper
ACCA predicate because (1) it was punishable by 15 years’ imprisonment at the time of
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conviction; and (2) “both the commission of the instant offense and the defendant’s sentencing
for it took place . . . at a time when the New York state controlled substance schedules were no
broader than the schedules of the federal Controlled Substances Act.” (Gov’t Opp’n at 12.) The
Government acknowledges that “the 2015 removal of naloxegol from the CSA made some New
York controlled substances offense invalid as ACCA predicate,” but argues that Petitioner “was
sentenced in 2011, four years before the schedules allegedly diverged, and his state controlled
substance conviction remains a valid ACCA predicate.” (Id.) Petitioner, on the other hand,
contends that New York’s controlled substance schedules encompassed more than the Controlled
Substance Act at the time of his federal sentencing, because New York’s definition of “narcotic
drug” included a more exhaustive list of cocaine derivatives. (Pet’r’s Reply Mem. at 12–13.)
Petitioner is correct.
Petitioner’s conviction for third-degree attempted criminal sale of a controlled substance
was premised on an attempt to “knowingly and unlawfully sell[] a narcotic drug.” N.Y.P.L. §§
110.00, 220.39(1). New York law defines a narcotic drug as “any controlled substance listed in
schedule I(b), I(c), II(b) or II(c) other than methadone.” N.Y.P.L. § 220.00(7). And, Petitioner
correctly notes that Schedule II(b)(4) of the New York Public Health Law has included “cocaine
and all its isomers” since at least 1997. See People v. Burnett, 245 A.D.2d 460 (N.Y. App. Div.
1997) (citing N.Y. Pub. Health Law § 3306(4)). Conversely, “Schedule II of the federal
Controlled Substances Act does not include all isomers of coca leaves but only includes the
‘optical or geometric isomer.’” United States v. Boyce, No. 21-cr-777, 2022 WL 2159890, at *4
(S.D.N.Y. June 15, 2022). This was also the case of the federal drug schedule in effect at the
time of Petitioner’s sentencing, which limited the scope of “narcotic drug” to “[c]ocaine, its salts,
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optical and geometric isomers, and salts of isomers.” 21 C.F.R. § 1300.01 (effective Jan. 4,
2010 to Jan. 26, 2012) (emphasis added).
Against this backdrop, the Court agrees with the “growing list of courts in this Circuit
that have held that there is no categorical match between a controlled substance under federal
law and a narcotic drug under New York Penal Law.” Boyce, 2022 WL 2159890 at *6
(collecting cases). Accordingly, Petitioner’s conviction for third-degree attempted criminal sale
of a controlled substance is not a “serious drug offense” under ACCA, leaving Petitioner with
only two valid predicates.
CONCLUSION
For the foregoing reasons, Petitioner’s motion to correct his sentence is GRANTED, and
his sentence is VACATED.
SO ORDERED.
Dated: Brooklyn, New York
June 27, 2023
/s/ LDH
LASHANN DEARCY HALL
United States District Judge
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