Memoli v. United States of America

Filing 13

ORDER for 12 Report and Recommendations. The Court has considered the underlying motion and the Government's objections de novo. With the exception of the Report's conclusion as to whether the conviction for four counts of burglary shou ld count as one or four predicate convictions, the Court hereby adopts Magistrate Judge Freeman's Report by reference. A re-sentencing hearing will be held on September 29, 2017 at 2:00 p.m. The Government should take the steps necessary to produce the defendant for the hearing. SO ORDERED. (Status Conference set for 9/29/2017 at 02:00 PM before Judge Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 8/14/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------x
UNITED STATES OF AMERICA
-v-

DOMINICK MEMOLI,
Defendant.

JED S. RAKOFF, U.S.D.J.
On July 11, 2017, Magistrate Judge Debra Freeman issued a
Report and Recommendation ("Report")

in the above-captioned matter

recommending that Mr. Memoli's petition under 28 U.S.C.

§

2255 to

vacate and correct his sentence be granted. The Government filed an
objection to the Report, dated July 25, 2017. Accordingly, the Court
has considered the underlying motion and the Government's objections
de novo.
Having done so, the Court finds itself in agreement with
Magistrate Judge Freeman that Mr. Memoli's petition should be
granted because one of the New York State convictions that had
served as a predicate conviction for Mr. Memoli's enhanced federal
sentence under the Armed Criminal Career Act of 1984
U.S.C.

§

("ACCA"), 18

924(e), was based on the statute's "residual clause," which

the Supreme Court held to be unconstitutionally vague in Johnson v.
United States, 135 S. Ct. 2551

(2015). This error was not harmless

because one of Mr. Memoli's remaining predicate convictions, for
four counts of burglary in the second degree, would itself have

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qualified as a violent felony under ACCA only under the residual
clause. Given these conclusions, the Court need not reach the
question whether this conviction would qualiry as one or rour
violent felonies.
Therefore, with the exception of the Report's conclusion as to
whether the conviction for four counts of burglary should count as
one or four predicate convictions, the Court hereby adopts
Magistrate Judge Freeman's Report by reference.
A re-sentencing hearing will be held on September 29, 2017 at
2:00 p.m. The Government should take the steps necessary to produce
the defendant for the hearing.

SO ORDERED.

~~.S.D.J.

Dated: New York, NY
August l_.!j_, 2017

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