Lorenzana v. United States of America

Filing 11

OPINION & ORDER (03CR1256): Before the Court is Defendant-Petitioner Victor Lorenzanas second motion to vacate his conviction for use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). (ECF No. 198.) The United States Court of Appeals for the Second Circuit granted Lorenzana leave to file a successive motion pursuant to 28 U.S.C. § 2255 in light of the United States Supreme Courts decisions in Johnson v. United States, 576 U.S. 591 (2015), and United S tates v. Davis, --- U.S. ---,139 S. Ct. 2319 (2019). (ECF No. 241.) Lorenzana argues that his § 924(c) convictions are no longer valid after Johnson and Davis because they were predicated on both attempted and substantive Hobbs Act robbery unde r 18 U.S.C. § 924(c). For the reasons set forth below, Lorenzanas motion is DENIED. For the reasons set forth above, Defendant Victor Lorenzana's motion to vacate, set aside, or correct his sentence is DENIED. The Co urt declines to issue a certificate of appealability because Lorenzana has not made a "substantial 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 Opinion & Order by Lorenzana would not be taken in good faith. See Copped ge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to terminate the motions docketed at ECF No. 198 in criminal case 03-CR-01256-JFK-1 and close civil case 16-CV-4355-JFK. SO ORDERED. (Signed by Judge John F. Keenan on 9/29/2021) (tg) Transmission to Orders and Judgments Clerk for processing. Modified on 9/30/2021 (tg).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
:
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-against:
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VICTOR LORENZANA,
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Defendant.
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No. 03 Cr. 1256 (JFK)
No. 16 Civ. 4355 (JFK)
OPINION & ORDER

APPEARANCES

FOR DEFENDANT VICTOR LORENZANA:
Yuanchung Lee
FEDERAL DEFENDERS OF NEW YORK, INC.
FOR THE UNITED STATES OF AMERICA:
Timothy Josiah Pertz
U.S. ATTORNEY’S OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK
JOHN F. KEENAN, United States District Judge:
Before the Court is Defendant-Petitioner Victor Lorenzana’s
second motion to vacate his conviction for use of a firearm in
relation to a crime of violence in violation of 18 U.S.C. §
924(c). (ECF No. 198.)

The United States Court of Appeals for

the Second Circuit granted Lorenzana leave to file a successive
motion pursuant to 28 U.S.C. § 2255 in light of the United
States Supreme Court’s decisions in Johnson v. United States,
576 U.S. 591 (2015), and United States v. Davis, --- U.S. ---,
139 S. Ct. 2319 (2019). (ECF No. 241.)

Lorenzana argues that

his § 924(c) convictions are no longer valid after Johnson and
Davis because they were predicated on both attempted and
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substantive Hobbs Act robbery under 18 U.S.C. § 924(c).

For the

reasons set forth below, Lorenzana’s motion is DENIED.
I.

Background

On June 29, 2005, Lorenzana was convicted by a jury of one
count of conspiracy to commit Hobbs Act robbery, in violation of
18 U.S.C. § 1951; three counts of substantive Hobbs Act robbery,
in violation of 18 U.S.C. §§ 1951 and 2; three counts of using,
carrying, and possessing a firearm during and in relation to a
crime of violence or drug trafficking crime, in violation of 18
U.S.C. §§ 924(c)(1)(A)(ii) and 2; one count of conspiracy to
distribute and possess with intent to distribute five kilograms
and more of cocaine and one kilogram and more of heroin, in
violation of 21 U.S.C. §§ 846, 812, 841(a)(1), and 841(b)(1)(A);
and one count of money laundering, in violation of 18 U.S.C. §§
1956(a)(1)(B)(i) and 2.

The charges stemmed from Lorenzana’s

role in a violent armed robbery crew which predominantly
targeted drug dealers in the Bronx and Manhattan.
On January 16, 2007, this Court sentenced Lorenzana to 87
years’ imprisonment to be followed by five years of supervised
release.

Lorenzana’s conviction and sentence were affirmed by

the Second Circuit on direct appeal. See United States v.
Lorenzana, 380 F. App’x 13 (2d Cir. June 2, 2010).

On August

19, 2011, Lorenzana filed his first motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255.
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This

Court denied that motion. See Lorenzana v. United States, No. 11
CIV. 6153 JFK, 2012 WL 4462006, at *2 (S.D.N.Y. Sept. 27, 2012).
On June 26, 2015, the Supreme Court decided Johnson v. United
States, 576 U.S. 591 (2015) and struck down the so-called
“residual clause” of the Armed Career Criminal Act, 18 U.S.C. §
924(2)(B)(ii), as unconstitutionally vague. Prior to the passage
of the one-year statute of limitations for filing § 2255 motions
based on Johnson, Lorenzana filed a § 2255(h)(2) motion in the
Second Circuit seeking leave to file a successive habeas
petition (ECF No. 2, 2d Cir. No. 16-1706), as well as a
“placeholder” § 2255 motion in this Court (ECF No. 198).
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 Lorenzana’s placeholder § 2255
motion pending the disposition of certain cases addressing the
constitutionality of § 924(c). (ECF No. 205.)
On June 3, 2020, the Court directed the Government to file a
letter addressing whether the stay should be lifted in light of
the Second Circuit’s decisions in United States v. Hill, 890
F.3d 51 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019), and
United States v. Barrett, 937 F.3d 126 (2d Cir. 2019). (ECF No.
218.)

The Government, in a letter filed on July 17, 2020,

argued that the Court should lift the stay and deny the motion
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because Hill, which held that Hobbs Act robbery is a crime of
violence under the so-called “force clause” of 18 U.S.C. §
924(c)(3)(A), foreclosed Lorenzana’s claims. (ECF No. 224.)

In

response, Lorenzana (through his counsel) argued that the stay
should remain in place because (1) his motion for leave to file
a successive § 2255 petition was still pending before the Second
Circuit, and (2) his claims were not precluded by Hill because
his § 924(c) convictions were predicated on both Hobbs Act
robbery and attempted Hobbs Act robbery. (ECF No. 231.)
In an August 5, 2020 Order, the Court reimposed the stay of
proceedings in Lorenzana’s civil habeas action, (No. 16 Civ.
4355 (JFK)), and held in abeyance Lorenzana's related habeas
motion in the criminal action, (No. 03 Cr. 1256 (JFK)). (ECF No.
231.)

On October, 1, 2020, the Second Circuit granted

Lorenzana’s motion for leave to file a successive habeas
petition and transferred the proceeding back to this Court. (ECF
No. 242.)

Despite the Second Circuit’s Order, Lorenzana did not

supplement his placeholder motion with a brief or memorandum of
law.
On December 10, 2020, Lorenzana filed a pro se motion
seeking a sentence reduction to time served and his immediate
release pursuant to the First Step Act, 18 U.S.C.
§ 3582(c)(1)(A), commonly known as the compassionate release
statute. (ECF No. 247.)

The Court denied Lorenzana’s
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compassionate release motion on the grounds that he failed to
demonstrate that extraordinary and compelling reasons supported
his release. See United States v. Lorenzan[a], No. 03 Cr. 1256
(JFK), 2021 WL 734984 (S.D.N.Y. Feb. 24, 2021).

On May 10,

2021, Lorenzana filed a motion for reconsideration of the
Court’s Order. (ECF No. 264.)

The Court denied the motion on

May 19, 2021. (ECF No. 265.)
II.
A.

Discussion
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 excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
In ruling on a § 2255 motion, the district court is
required to hold a hearing “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b).
B.

Analysis

Although Lorenzana has not filed a memorandum of law in
support of his successive habeas motion, the description of his
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claimed basis for relief in the placeholder motion is sufficient
for the Court to conclude that his § 924(c) claims are entirely
meritless.
In his placeholder motion, Lorenzana argues that his three
§ 924(c) convictions must be vacated because they were based on
a predicate offense that is no longer a “crime of violence”
under § 924(c)(3)(A). (ECF No. 198.)

In his response to the

Government’s July 27, 2020 letter concerning the impact of Hill,
Lorenzana acknowledged that his § 924(c) convictions were
predicated on both Hobbs Act robbery and attempted Hobbs Act
robbery. (ECF No. 230.)

In United States v. McCoy, 995 F.3d 32,

55–57 (2d Cir. 2021), the Second Circuit held that attempted
Hobbs Act robbery is a “crime of violence” within the meaning of
§ 924(c)(3)(A).

The Second Circuit has also repeatedly

reaffirmed that substantive Hobbs Act robbery is a valid
predicate offense for a § 924(c) conviction. See United States
v. Barrett, 937 F.3d 126, 128, (2d Cir. 2019); see also McCoy,
995 F.3d at 55.
Accordingly, because Lorenzana’s § 924(c) convictions were
predicated on two valid predicate offenses, his successive §
2255 motion must fail. See United States v. Felder, 993 F.3d 57,
81 (2d Cir. 2021).

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III.

Conclusion

For the reasons set forth above, Defendant Victor
L orenzana's motion to vacate, set aside, or correct his sentence
is DENIED.
The Court declines to issue a certificate of appealability
because L orenzana has not made a "substantial 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 Opinion & Order by
L orenzana 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 motions
docketed at ECF No. 198 in criminal case 03-CR-01256-JFK-1 and
close civil case 16-CV-4355-JFK.
SO ORDERED.

Dated:

New York, New York
September2,..1, 2021

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�
John F. Keenan
United States District Judge

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