Gjidija v. United States of America
Filing
16
OPINION & ORDER: For the reasons set forth above, Defendant Agron Gjidija's motion to vacate, set aside, or correct his sentence is DENIED. The Court declines to issue a certificate of appealability because Gjidija has not made a "substant ial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c) (2); Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000). Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Orde r would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to terminate the motion docketed at ECF No. 196 in criminal case 03-CR-01256-JFK-5 and close civil case 16-CV-03118-JFK. (As further set forth in this Order.) (Signed by Judge John F. Keenan on 3/31/2021) (cf)
Case 1:09-md-02013-PAC Document 57
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
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In re FANNIE MAE 2008 SECURITIES
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-against:
LITIGATION
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AGRON GJIDIJA,
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Defendant.
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Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 03/31/2021
No. 03 Cr. 1256 (JFK)
08 Civ. Civ. 3118 (JFK)
No. 167831 (PAC)
09 MD 2013 (PAC)
OPINION & ORDER
OPINION & ORDER
APPEARANCES
HONORABLE PAUL A. CROTTY, United States District Judge:
FOR DEFENDANT AGRON GJIDIJA:
Barry D. Leiwant
FEDERAL DEFENDERS OF NEW YORK, INC. 1
BACKGROUND
FOR THE UNITED STATES OF AMERICA:
The early years of this decade saw a boom in home financing which was fueled, among
David W. Denton, Jr.
U.S. ATTORNEY’S OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK
other things, by low interest rates and lax credit conditions. New lending instruments, such as
JOHN F. KEENAN, United States District Judge:
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
Before the Court is Defendant-Petitioner Agron Gjidija’s
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
motion to vacate, set aside, or correct his sentence pursuant to
assumption that the market would continue to rise and that refinancing options would always be
28 U.S.C. § 2255. For the reasons set forth below, Gjidija’s
available in the future. Lending discipline was lacking in the system. Mortgage originators did
motion is DENIED.
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
I. Background
originators sold their loans into the secondary mortgage market, often as securitized packages
On March 30, 2004, Gjidija pleaded guilty, pursuant to a
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
plea agreement, to conspiracy to commit Hobbs Act robbery, in
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
violation of 18 U.S.C. § 1951 (“Count One”); one count of
and home prices began to fall. In light of the changing housing market, banks modified their
substantive Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951
lending practices and became unwilling to refinance home mortgages without refinancing.
and 2 (“Count Eight”); and brandishing a firearm during and in
relation to the substantive Hobbs Act robbery charged in Count
1
Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
Eight, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2
1
1
(“Count Nine”).
The charges stemmed from Gjidija’s role in a
violent robbery crew that predominantly targeted drug dealers in
the Bronx and Manhattan, and his participation in the armed
robbery of an apartment in Upper Manhattan on or about February
13, 1999, during which Gjidija and others disguised themselves as
police officers, forced their way into the apartment at gunpoint,
and tortured a victim into handing over approximately $5,000 in
narcotics proceeds.
On October 13, 2004, this Court sentenced
Gjidija to a 204-month term of incarceration to be followed by
three years of supervised release.
On April 26, 2016, Gjidija filed a motion to vacate his
§ 924(c) conviction under Count Nine based on the United States
Supreme Court’s decisions in Johnson v. United States, 576 U.S.
591 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016),
which held the so-called “residual clause” of the Armed Career
Criminal Act, 18 U.S.C. § 924(e), to be unconstitutionally vague.
(ECF No. 196.)
Consistent with Chief Judge McMahon’s standing
order, In re Petitions Under 28 U.S.C. §§ 2255 and 2241 in Light
of Johnson v. United States, 16 Misc. 217 (S.D.N.Y. Jun. 8,
2016), the Court stayed consideration of Gjidija’s habeas
petition pending the disposition of certain cases addressing the
constitutionality of the residual clause of § 924(c).
203, 208.)
2
(ECF Nos.
On June 17, 2020, the Court lifted the stay following the
Supreme Court’s decision in United States v. Davis, 139 S. Ct.
2319 (2019), which, similar to Johnson, ruled that the residual
clause of § 924(c) was unconstitutionally vague.
(ECF No. 225.)
On August 16, 2020, the Government opposed Gjidija’s motion on
the grounds that his § 924(c) conviction remains valid in light
of the Second Circuit’s decision in United States v. Hill, 890
F.3d 51 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019),
which ruled that Hobbs Act robbery is a crime of violence under
the so-called “force clause” of 18 U.S.C. § 924(c)(3)(A), and
thus, Gjidija’s conviction for the completed Hobbs Act robbery in
Count Eight constitutes a valid predicate offense for his §
924(c) conviction in Count Nine.
(ECF No. 236.)
On September
14, 2020, Gjidija filed a letter in reply conceding that the
merits of his petition are governed by Hill.
II.
(ECF No. 237.)
Discussion
A.
Legal Standard
Pursuant to 28 U.S.C. § 2255, a prisoner sentenced in
federal court “may move the court which imposed the sentence to
vacate, set aside or correct the sentence” if the prisoner claims
that “the sentence was imposed in violation of the Constitution
or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in
3
excess of the maximum authorized by law, or is otherwise subject
to collateral attack.” 28 U.S.C. § 2255(a).
B.
Analysis
18 U.S.C. § 924(c) imposes a mandatory, consecutive sentence
for “any person who, during and in relation to any crime of
violence . . . uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm.” 18 U.S.C.
§ 924(c)(1)(A).
As relevant here, § 924(c)’s so-called “elements
clause” or “force clause” defines “crime of violence” as a felony
offense that “has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another.” 18 U.S.C. § 924(c)(3)(A).
“Hobbs Act robbery is a
crime of violence under 18 U.S.C. § 924(c)(3)(A).” Hill, 890 F.3d
at 53; see also United States v. Felder, --- F.3d ---, No. 19897, 2021 WL 1201340, at *15–16 (2d Cir. Mar. 31, 2021)
(explaining Hobbs Act robbery is a categorical crime of
violence).
As Gjidija concedes, the crime charged in Count Eight—
substantive Hobbs Act robbery—constitutes a crime of violence
under 18 U.S.C. § 924(c)(3)(A).
Accordingly, Count Eight is a
valid predicate offense for Count Nine, and Gjidija’s motion to
vacate his § 924(c) conviction and sentence is without merit. See
Felder, 2021 WL 1201340, at *15–16; United States v. Barrett, 937
F.3d 126, 128 (2d Cir. 2019) (explaining that substantive Hobbs
4
Act robbery is a valid predicate offense for a § 924(c)
conviction); United States v. White, No. 16 Cr. 82 (VEC), 2020 WL
5898680, at *6 (S.D.N.Y. Oct. 5, 2020) (denying similar habeas
petitions to vacate § 924(c) convictions which were based on a
completed Hobbs Act robbery).
III.
Conclusion
For the reasons set forth above, Defendant Agron Gjidija's
motion to vacate, set aside, or correct his sentence is DENIED.
The Court declines to issue a certificate of appealability
because Gjidija has not made a "substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2); K rantz v.
United States, 224 F.3d 125, 127 (2d Cir. 2000).
Further, the
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this Order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to terminate the motion
docketed at ECF No. 196 in criminal case 03-CR-01256-JFK -5 and
close civil case 16-CV-03118-JFK.
SO ORDERED.
Dated:
New York, New York
March 31, 2021
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