Crowder v. United States of America

Filing 21

DECISION ON PETITIONER'S MOTION FILED PURSUANT TO 28 U.S.C. § 2255: The Second Circuit Court of Appeals has remanded this case to the district court for it todetermine whether to vacate Crowder's § 924(c) conviction. For the reaso ns stated herein, Crowder's § 924(c) is vacated; an amended judgment will be entered forthwith. Accordingly, the Court finds that Taylor applies retroactively on collateral review. Crowder 's § 924(c) Conviction on Count Three is Vacated Since the only predicate of Crowder' s § 924(c) conviction no longer qualifies as crimes of violence, his conviction and sentence on Count Three are vacated. Having now vacated Crowder' s § 924(c) conviction, the Court may in its discretion, conduct a de nova resentencing or enter an amended judgment. An amended judgment will be entered reflecting a sentence of time served, to be followed by a three-year term of supervised release, $26,840 in restitution, and a $100 mandatory special assessment for Crowder's conviction on Count Two. and as set forth herein. This constitutes the decision and order of the Court. (Signed by Judge Colleen McMahon on 8/09/2023) (ama)

Case 1:16-cv-04403-CM Document 21 Filed 08/09/23 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: ----=r-+---1-D1\TE FILED:

?J /1 /2-3

ANDRA LAMONT CROWDER,
Petitioner,

16 CV 4403 (CM)
05 CR 67-02 (CM)

-againstUNITED STATES OF AMERICA,
Respondent.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.X

DECISION ON PETITIONER'S MOTION FILED PURSUANT TO 28 U.S.C. § 2255
McMahon, J.:
The Second Circuit Court of Appeals has remanded this case to the district court for it to
determine whether to vacate Crowder's § 924(c) conviction. For the reasons stated herein,
Crowder's § 924(c) is vacated; an amended judgment will be entered forthwith.

I. Background
A. Relevant Facts
Crowder pleaded guilty to committing what this Court has described as "a particularly
heinous armed kidnapping. (Transcript of Sentence dated Jan. 26, 2007). Crowder and two other
individuals confronted and threatened a victim ("Victim-1 ") in his home. One perpetrator put a
gun in Victim-1 's face. Id. Crowder and his cohorts then abducted Victim-1 and forced him into
their vehicle. Id. Crowder suggested that Victim-1 be locked in the trunk, but the other
perpetrators instead restrained Victim-1 inside the vehicle. Id. The three perpetrators demanded
money for Victiml 's release; ultimately they were apprehended without receiving any payment.
Crowder was charged in a six-count Indictment on January 19, 2005. On June 14, 2006,
Crowder pled guilty pursuant to a plea agreement to Counts Two and Three of that Indictment,

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which had charged him with attempted Hobbs Act robbery, in violation of 18 U.S.C. § 195l(a)
("Count Two"), and using and carrying a firearm, which was brandished, during that offense in
violation of 18 U.S.C. §§ 924(c)(l)(A)(ii) and 2 ("Count Three"). (Plea Transcript dated June
14, 2006).
On January 26, 2007, this Court sentenced Crowder to 77 months' incarceration on
Count Two, to be followed by a consecutive sentence of 84 months' incarceration on Count
Three. (See Judgment). Crowder's sentence of incarceration was to be followed by a three-year
term of supervised release on Count Two, and a five-year term of supervised release on Count
Three, with such terms to run concurrently. Id.
Crowder was released from custody on January 28, 2018 and began serving his term of
supervised release. On or about October 15, 2019, his supervision was transferred to the U.S.
District Court for the Eastern District of North Carolina. On April 7, 2020, Crowder's
supervision was revoked, and he was placed on a new term of supervised release for a period of
24 months. On September 18, 2020, his supervision was revoked again, and he was sentenced
to a term of incarceration with no additional supervision to follow. See United States v.
Crowder, No. 19 Cr. 435 (JCD), Dkt. 35 (E.D.N.C. Sept. 22, 2020).
According to the U.S. Bureau of Prisons, Crowder was released from custody on or
about November 19, 2021.
B. Procedural History

Crowder filed a first motion pursuant to 28 U.S.C. § 2255 on June 10, 2016, which
challenged his conviction under§ 924(c)(l)(A)(ii). In light of the U.S. District Court for the
Southern District ofNew York's Standing Order In re: Petitions under 28 US.C. §§ 2255 and
2241 in Light of Johnson v. United States, 16-MC-217 (filed June 8, 2016), Crowder's motion

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was stayed. On February 1, 2019, the Court directed the Government to file a response to the
motion, and the Government did so on March 4, 2019. Crowder filed a response on April 3,
2019, which, among other things, requested that this case be stayed pending a decision by the
U.S. Supreme Court in United States v. Davis, 139 S. Ct. 2319 (2019). The Court granted that
request on April 4, 2019.
On June 24, 2019, the Supreme Court issued its opinion in Davis, which held that

§ 924(c)(3)(B) - the so-called "residual" or risk-of force clause - is unconstitutionally vague.
See 139 S. Ct. at 2336. On July 1, 2019, this Court directed the Government to file an additional

response in light of Davis. The Government did so on July 31, 2019, and Crowder filed an
additional reply on August 30, 2019. (Dkt. 11.) This Court denied Crowder's motion in a written
decision on November 20, 2019. Crowder promptly appealed.
On April 29, 2020, the U.S. Court of Appeals for the Second Circuit granted Crowder's
request to hold his appeal in abeyance pending decisions in prior appeals presenting a similar
issue. See Crowder v. United States, No. 19-3887, Dkt. 28 (2d Cir.). Crowder moved to reinstate
the appeal in January 2023, following decisions by the Supreme Court in United States v. Taylor,
142 S. Ct. 2015 (2022), and the Court of Appeals in United States v. McCoy, 58 F.4th 72 (2d Cir.
2023). On April 4, 2023, the Court of Appeals vacated this Court's denial of Crowder's § 2255
motion in light of Taylor and McCoy, and remanded the case to permit this Court to "determine
whether to vacate [Crowder )'s § 924(c) conviction," including, "in the first instance, whether
Taylor is retroactively applicable to cases on collateral review and any other issues relevant to

the relief requested by [Crowder]."

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II. Discussion

On June 21, 2022, the Supreme Court issued its decision in Taylor and held that
attempted Hobbs Act robbery does not qualify as a crime of violence for purposes of 18 U.S.C.

§ 924(c)(3). 142 S. Ct. at 2020. Since Crowder pleaded guilty only to Count Two (Attempted
Hobbs Act Robbery) and Count Three (the § 924(c) firearms offense) of the Indictment, this
case does not present the question of whether his § 924( c) conviction (Count Three) could be
affirmed on the basis of one or more valid alternative predicates, charged in other counts. See,

e.g., United States v. Dussard, 967 F.3d 149, 156-58 (2d Cir. 2020). Thus, if the Court
determines that Taylor applies retroactively on collateral review, Crowder's conviction must be
set aside.

Retroactivity
"The framework for determining whether a decision applies retroactively to cases on
collateral review is set forth by the [Supreme Court's] plurality opinion in Teague v. Lane." Hall

v. United States, 58 F.4th 55, 60 (2d Cir. 2023) (citing Teague v. Lane, 489 U.S. 288 (1989)).
"Under Teague, as a general matter, new constitutional rules of criminal procedure will not be
applicable to those cases which have become final before the new rules are announced unless
they fall under an established exception." Hall, 58 F.4th 60 (internal cites omitted). "As relevant
here, one of those exceptions is for new substantive rules, which generally apply retroactively."

Hall, 58 F.4th at 60 (internal cites and emphasis omitted). "A rule is substantive rather than
procedural if it alters the range of conduct or the class of persons that the law punishes," which
"includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well
as constitutional determinations that place particular conduct or persons covered by the statute
beyond the State's power to punish." Schriro v. Summerlin, 542 U.S. 348, 351-53 (internal

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citations omitted).
In Welch v. United States, the Supreme Court held that its Johnson decision-which
held that the definition of prior "violent felony" in the residual clause of the ACCA was
unconstitutionally vague under due process principles-announced a substantive rule that
applied retroactively on collateral review. Welch v. United States, 578 U.S. 120, 136 S. Ct. 1257,
194 L. Ed. 2d 387 (2016).
In Hall v. United States, the Second Circuit held that the Supreme Court's holding in

United States v. Davis-finding the residual clause in definition of"crime of violence" in statute
providing enhanced penalties for use of a firearm in connection with a crime of violence to be
unconstitutionally vague-represented a new substantive rule of constitutional criminal law that
applies retroactively on collateral review. Hall v. United States, 58 F.4th 55 (2d Cir. 2023).
It follows that Taylor--which held that attempted Hobbs Act robbery does not qualify

as a crime of violence for purposes of 18 U.S.C. § 924(c)(3)-should also be applied
retroactively on collateral review. Like Johnson and Davis, Taylor announced a rule that is (i)
new, in that it was "not dictated by precedent existing at the time the defendant's conviction
became final," Chaidez v. United States, 568 U.S. 342, 347 (2013) (quotation marks and
emphasis omitted); and (ii) substantive in that it "alter[ed] the range of conduct ... that the law
punishes," Welch v. United States, 136 S. Ct. 1257, 1264-64 (2016). Cf. Hall, 58 F.4th at 61-62
(applying two requirements for retroactivity to Davis).
Accordingly, the Court finds that Taylor applies retroactively on collateral review. 1

1 At least one other court in the Southern District has held (and several others have suggested) that Taylor applies
retroactively to cases on collateral review. See Aponte v. United States, No. 02 CR. 1082-4 (NRB), 2023 WL
3600848, at *3-4 (S.D.N.Y. May 23, 2023) (Taylor applies retroactively to petitioners, like Aponte, who seek
collateral review of their convictions under§ 2255); United States v. Nguyen, No. 07-cr-1121 (PAE), 2023 WL
2754303, at *4 (S.D.N.Y. Apr. 3, 2023) (suggesting Taylor applies retroactive); Pedro v. United States, No. 03-cr0346-01 (SHS), 2022 WL 17418529, at *l (S.D.N.Y. Nov. 30, 2022) (suggesting Taylor applies retroactive). And
while the Second Circuit has not directly addressed Taylor's retroactive applicability on collateral review, it recently

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Crowder 's § 924(c) Conviction on Count Three is Vacated

Since the only predicate of Crowder' s § 924(c) conviction no longer qualifies as crimes
of violence, his conviction and sentence on Count Three are vacated.
Having now vacated Crowder' s § 924( c) conviction, the Court may in its discretion,
conduct a de nova resentencing or enter an amended judgment. 2 While a resentencing is often
warranted after vacatur of a § 924(c) conviction "so that the district court may increase the
sentences for any remaining counts," Davis, 139 S. Ct. at 2336 (quotation marks omitted),
Crowder has already completed his entire term of incarceration and supervised release portions
of his sentence. Thus, after vacating Crowder' s § 924(c) conviction, all that remains for this
Court to do is "delete the sentence[]" on that count [Count Three], which would be "strictly
ministerial." United States v. Pena, 58 F.4th 613, 615 (2d Cir. 2023) (holding that§ 2255 "vests
district courts with discretion in such circumstances to decide whether or not to conduct a de
nova resentencing"). Pena, 58 F.4th at 623 (affirming entry of amended judgment where

resentencing would have been "strictly ministerial").
An amended judgment will be entered reflecting a sentence of time served, to be followed
by a three-year term of supervised release, $26,840 in restitution, and a $100 mandatory special
assessment for Crowder's conviction on Count Two.

cited with approval a Sixth Circuit case which applied Taylor retroactively to a request to vacate under§ 2255.
United States v. Collymore, 61 F.4th 295,297 (2d Cir. 2023) (citing Wallace v. United States, 43 F.4th 595, 601 (6th
Cir. 2022)).
2 See 28 U.S.C. § 2255(b) ("If the court finds ... that the sentence imposed was not authorized by law or otherwise
open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside
and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear
appropriate."); United States v. Pena, 58 F.4th 613, 615 (2d Cir. 2023) (holding that§ 2255 "vests district courts
with discretion in such circumstances to decide whether or not to conduct a de novo resentencing").

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This constitutes the decision and order of the Court
Dated: August 9, 2023

Colleen McMahon
District Court Judge

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