Speed v. United States of America
Filing
4
OPINION AND ORDER: For the reasons explained, Speed's motion to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Clerk is respectfully directed to terminate the motion (Doc 114). (Signed by Judge P. Kevin Castel on 11/30/2020) (jwh)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROBERT SPEED,
16 cv 4500 (PKC)
Petitioner,
-against-
OPINION
AND ORDER
UNITED STATES OF AMERICA,
Respondent.
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CASTEL, U.S.D.J.:
Petitioner Robert Speed moves to vacate, set aside, or correct his conviction and
sentence pursuant to 28 U.S.C. § 2255. (Doc 114.) Speed argues, inter alia, that in light of the
rules announced by the Supreme Court in Johnson v. United States, 576 U.S. 591 (2015) and
United States v. Davis, 139 S. Ct. 2319 (2019), his conviction for possession of a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three) cannot stand
because the Court must assume that the predicate “crime of violence” was RICO conspiracy
(Count Two), which no longer qualifies as a “crime of violence” under the statute. Speed
alternatively argues that even if the Court were to consider the substantive RICO count (Count
One) as the predicate offense, it also does not qualify as a “crime of violence” and thus warrants
vacatur of the Count Three conviction, and re-sentencing. For the reasons set forth below,
Speed’s motion will be denied.
BACKGROUND
On November 9, 2005, a jury convicted Speed of seven counts of an eight-count
indictment. (Superseding Indictment (Doc 55); Trial Tr. (Doc 114, Ex. 4) at 1811-16.) Speed
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was convicted on Count One, a substantive racketeering charge, in violation of the Racketeer
Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1962(c); Count Two,
racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); Count Three, possession of a
firearm in furtherance of a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A)(ii) and 2;
Count Four, unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); Count Five,
conspiracy to transport stolen goods in interstate commerce and to sell stolen goods, in violation
of 18 U.S.C. § 371; Count Six, interstate transportation of stolen property, in violation of 18
U.S.C. § 2314 and 2; and Count Seven, possession and sale of stolen property, in violation of 18
U.S.C. § 2315 and 2. (Presentence Investigation Report (“PSR”) (Doc 114, Ex. 1).) The jury
acquitted Speed on Count Eight, which charged a Hobbs Act conspiracy in violation of 18
U.S.C. § 1951(a). (Doc 55; Amended Judgment (Doc 75).)
At trial, the Court instructed the jury on Count Three, in relevant part:
To find the defendant Robert Speed guilty of the crime in the indictment, the
government must prove each of the following elements beyond a reasonable
doubt.
First, that the defendant committed a crime of violence for which he might be
prosecuted in a court of the United States.
Second, that between in or about 1995 and in or about January 2002, Robert
Speed used, carried or possessed a firearm or aided and abetted others to do so.
Third, that the defendant did so unlawfully, willfully and knowingly.
Fourth, that the defendant used and carried the firearm during and in relation to a
crime of violence, namely, the offenses charged in Counts 1 and 2, or that the
defendant possessed the firearm in furtherance of any such crime of violence.
Although not a required element of the charge, you will also be asked whether the
defendant brandished a firearm during and in relation to a crime of violence.
The first element that the government must prove beyond a reasonable doubt is
that the defendant committed a crime of violence for which he might be
prosecuted in a court of the United States.
As I have already instructed you, the defendant is charged in Count 1 with, among
other things, participating in a racketeering enterprise that committed robberies
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and conspired to commit robberies, and in Count 2 the defendant is charged with
conspiring to participate in the RICO enterprise.
I instruct you the crimes of Count 1 and Count 2 are crimes of violence. It is for
you to determine whether the government has proven beyond a reasonable doubt
that the defendant committed the crimes of violence charged in Count 1 and
Count 2.
Further, Count 1 of the indictment charges that the defendant committed several
different conspiracies to commit robbery and robberies. You may find the
defendant is guilty of more than one of the conspiracies to commit robbery,
robberies and/or robberies. However, you need not find that the defendant is
guilty in one of the conspiracies to commit robberies or one of the robberies to
find that the defendant committed a crime of violence, but you must be
unanimous with respect to the crime of violence that you find the defendant
committed.
Finally, in order for you to find the defendant guilty of Count 3 in connection with
the crime of violence in Count 1, you must further find that the defendant used or
carried a firearm during and in relation to or possessed a firearm in furtherance of
one or more of the conspiracies to commit robberies or one or more of the
robberies in Count 1.
(Doc 114, Ex. 4 at 1736-37.)
The Court adopted a Sentencing Guidelines range of 408 to 489 months’
imprisonment. (PSR at 48; Doc 114, Ex. 2 at 62.) On May 19, 2006, the Court sentenced Speed
to a total of 420 months’ imprisonment. (Doc 114, Ex. 2 at 63-65.) Specifically, and as is
relevant here, Speed received a sentence of 84 months’ imprisonment on Count Three, to run
consecutively to the other counts. (Id. at 65.)
Speed moved for a judgment of acquittal on Count Three pursuant to Rule 29,
Fed. R. Crim. P., asserting that the government failed to prove venue in this District. The Court
denied Speed’s motion. (Doc 64.) Speed also moved for relief pursuant to section 2255, and the
Court denied his motions. (Docs 88, 90, 94.)
On June 14, 2016, Speed filed a “placeholder” petition to vacate his sentence
again pursuant to 18 U.S.C. § 2255, and simultaneously filed a motion in the United States Court
of Appeals for the Second Circuit for permission to proceed with a successive section 2255
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motion based on the Supreme Court’s decision in United States v. Johnson, 576 U.S. 591 (2015).
(Docs 98, 99, 100, 102.) The Second Circuit granted his motion. (Speed v. United States, 161863, Doc 26.) After stays of the motion pending the outcome of various cases before the
Supreme Court and the Second Circuit, a briefing schedule was set on July 19, 2019. (Doc 113.)
DISCUSSION
A. Legal Framework
Section 924(c)(1)(A)(ii) provides, in relevant part:
[A]ny person who, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be prosecuted in a court
of the United States, uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime . . .
if the firearm is brandished, be sentenced to a term of imprisonment of not less
than 7 years . . . .
Section 924(c)(3) defines a “crime of violence” as “an offense that is a felony and”
(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
Subsection (A) is referred to as “the elements clause” and subsection (B) is referred to as “the
residual clause.” United States v. Davis, 139 S. Ct. 2319, 2324 (2019). In Davis, the Supreme
Court held that the residual clause of section 924(c) is unconstitutionally vague. Id. at 2336.
The Court had previously held that a similar residual clause of the Armed Career Criminal Act
(“ACCA”), at issue in Johnson v. United States, 576 U.S. 591, 597 (2015) was unconstitutionally
vague, finding that the clause “[left] great uncertainty about how to estimate the risk posed by a
crime,” as it “tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a
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crime, not to real-world facts or statutory elements.” The Supreme Court further noted that “the
residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent
felony.” Id. at 598; see Davis, 139 S. Ct. at 2325-26 (discussing Johnson). In order for a
conviction under 18 U.S.C. § 924(c) to stand, therefore, the predicate offense must be a “crime
of violence” as defined by the elements clause, 18 U.S.C. § 924(c)(3)(A).
Determining whether an offense is a “crime of violence” requires a “categorical
approach,” as opposed to a case-specific approach. Davis, 139 S. Ct. at 2328; United States v.
Barrett, 937 F.3d 126, 128 (2d Cir. 2019) (describing the Supreme Court’s holding in Davis).
Under the categorical approach, “courts may 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.” Descamps v. United States, 570 U.S. 254, 261 (2013) (internal quotation marks
and citation omitted) (emphasis in original); United States v. Acosta, 470 F.3d 132, 135 (2d Cir.
2006) (“Under this categorical approach, we focus on the intrinsic nature of the offense rather
than on the circumstances of the particular crime.”). “Consequently, only the minimum criminal
conduct necessary for conviction under a particular statute is relevant.” Acosta, 470 F.3d at 135.
Where a statute has “a more complicated (sometimes called ‘divisible’)
structure,” and lists alternative elements, “thereby defin[ing] multiple crimes,” courts may
employ a “modified categorical approach” whereby they “look[] to a limited class of documents
(for example, the indictment, jury instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted of.” Mathis v. United States, 136 S.
Ct. 2243, 2249 (2016).
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B. Speed Did Not Procedurally Default
The government argues that Speed cannot raise a claim based on Johnson and
Davis in a section 2255 motion because he failed to raise it on direct appeal, and therefore
procedurally defaulted. “Where a defendant has procedurally defaulted a claim by failing to raise
it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate
either ‘cause’ and actual ‘prejudice,’ . . . or that he is ‘actually innocent.’” Bousley v. United
States, 523 U.S. 614, 622 (1998). Speed demonstrates cause and prejudice.
Prior to Johnson and Davis, Speed’s claim would have been “so novel that it was
not reasonably available to counsel at the time.” Vilar v. United States, 16 cv 5283 (CS), 2020
WL 85505, at *2 (S.D.N.Y. Jan. 3, 2020). “[W]here a constitutional claim is so novel that its
legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the
claim in accordance with applicable state procedures.” Reed v. Ross, 468 U.S. 1, 16 (1984); see
Aquino v. United States, 2020 WL 1847783, at *2 (S.D.N.Y. Apr. 13, 2020) (Castel, J.) (cause
requirement satisfied and finding “that there was no procedural default in failing to raise a
Johnson-type argument before Johnson was decided.”); Camacho v. United States, 13 cr 58
(AKH), 2019 WL 3838395, at *2 (S.D.N.Y. Aug. 15, 2019) (finding cause existed where
“Second Circuit caselaw at the time of Petitioner’s direct appeal foreclosed his § 924(c)
argument, and the Supreme Court did not take up or decide Johnson until after Petitioner filed
his direct appeal.”). Therefore, Speed has established cause for failing to raise the claim on
direct appeal.
Speed has also demonstrated prejudice. Speed asserts that he was convicted and
sentenced under a now-unconstitutionally vague statutory provision (the residual clause of
section 924(c)(3)). If this contention is correct, then he would suffer the prejudice of a legally
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invalid conviction, and the attending 84 months’ imprisonment to which he was sentenced on
that conviction. See Aquino, 2020 WL 1847783, at *2; Camacho, 2019 WL 3838395, at *2.
The Court will therefore address the merits of Speed’s motion.
C. Substantive RICO Can Serve as the Predicate for Speed’s Section 924(c) Conviction
At trial, the Court gave what was then a proper instruction on the law: that both
Count One (the substantive RICO charge) and Count Two (RICO conspiracy) were crimes of
violence and therefore possible predicates for finding Speed guilty on Count Three. (Doc 114,
Ex. 5 at 1736-37.) When returning a guilty verdict on Count Three, the jury did not make a
specific finding as to whether the predicate on which they relied was Count One or Two. (See
Doc 114, Ex. 4 at 1814.) Speed argues that because there was no special verdict specifying the
basis for Speed’s section 924(c) conviction on Count Three, the Court must assume that the
lesser of the two possible predicates, Count Two (RICO conspiracy), is the basis for the Count
Three conviction, and that RICO conspiracy can no longer be considered a crime of violence.
Speed is correct that in the aftermath of Davis, RICO conspiracy is no longer
considered a crime of violence under section 924(c)(3). See United States v. Brown, 797 F.
App’x 52, 54 (2d Cir. 2019) (summary order) (where “the underlying crime of violence was a
racketeering conspiracy . . . [t]he Government concedes that the Supreme Court’s recent decision
in United States v. Davis . . . requires vacatur of those counts of conviction [under 18 U.S.C. §
924(c)].”); Boykin v. United States, 16 cv 4185 (CM), 2020 WL 774293, at *5 (S.D.N.Y. Feb.
18, 2020) (“After Davis, it is unclear whether a conspiracy to commit a violent crime could any
longer serve as a predicate ‘crime of violence’ for a § 924(c) firearms conviction.”); United
States v. Johnson, 452 F. Supp. 3d 36 (S.D.N.Y. 2019) (“The Government concedes that, in light
of Davis, racketeering conspiracy can no longer constitute a crime of violence.”), appeal filed,
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No. 19-3952 (2d Cir. Nov. 26, 2019); Davis v. United States., 2019 WL 3429509, at *8
(S.D.N.Y. July 30, 2019) (Briccetti, J.) (“Under the reasoning of United States v. Davis, . . . as
the government acknowledges, Davis’s firearms conviction under Section 924(c) must be
vacated.”); but see United States v. Howard, 414 F. Supp. 3d 580, 604 (S.D.N.Y. 2019) (granting
motion for acquittal on section 924(c) conviction where the evidence failed to show that the
defendant “used a firearm ‘in relation to’ the RICO conspiracy or possessed it ‘in furtherance of’
the conspiracy,” but concluding that the underlying “RICO offense was a crime of violence, and
conspiracy to commit the RICO offense is a crime of violence too.”); appeal filed sub nom.,
United States v. White (Howard), No. 19-3833 (2d Cir. Nov. 18, 2019). “This is because a
conspiracy to commit racketeering qualifies as a ‘crime of violence’ only under the so-called
residual clause of . . . 18 U.S.C. § 924(c)(3)(B), which the Supreme Court has now declared
unconstitutionally vague.” Davis, 2019 WL 3429509, at *8; see also Barrett, 937 F.3d at 128
(vacating section 924(c) sentence based on Hobbs Act robbery conspiracy “because the
identification of that crime as one of violence depends on the § 924(c)(3)(B) residual clause
definition, which Davis has now pronounced unconstitutionally vague.”). For these reasons, the
Court concludes that Count Two cannot be the predicate offense for Speed’s section 924(c)
conviction.
The Court disagrees with Speed’s second contention: that because the conviction
on Count Three did not specify which of the two possible predicates was the basis for the 924(c)
conviction, the Court must assume that it was the lesser charge, here RICO conspiracy in Count
Two, rather than substantive RICO in Count One. Speed cites Johnson v. United States, 559
U.S. 133, 136 (2010) for the proposition that where a conviction could rest on any one of several
disjunctive elements of a crime, a district court must “conclude that it rested upon . . . the least of
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these acts.” But Johnson was referring to a statute which permitted he predicate offense of
battery to be proven in any one of three ways, one of which was the mere touching of another.
In the context of section 924(c) convictions, the Second Circuit and courts in this
District have held that the invalidity of one predicate conviction does not warrant vacatur of a
section 924(c) conviction where there are other valid predicates. Where a crime of violence and
a drug trafficking crime are the two possible predicates for a 924(c) charge, the Second Circuit
has looked to the validity of the drug trafficking predicate where crime of violence questions
were raised. United States v. Vasquez, 672 F. App’x 56, 60-61 (2d Cir. 2016) (summary order);
see also United States v. Ventura, 742 F. App’x 575, 578 (2d Cir. 2018) (summary order) (doing
the same to uphold a 924(j) conviction). This is no different when the two predicate crimes are
both crimes of violence, but only one is called into doubt. United States v. Walker, 789 F. App’x
241, 244-45 (2d Cir. 2019) (summary order) (denying defendant-appellants’ challenges to their
section 924(c) convictions pursuant to Davis where those convictions rested on both conspiracy
and substantive Hobbs Act convictions, as substantive Hobbs Act robbery remains a crime of
violence pursuant to the elements clause); United States v. White, 16 cr 82 (VEC), 2020 WL
5117973, at *4 (S.D.N.Y. Aug. 31, 2020) (“Thus, where a § 924(c) conviction rests on multiple
predicates, one of which has been invalidated, the conviction may stand only if the record
factually establishes that the defendant committed another predicate offense that constitutes a
‘crime of violence’ under the elements clause of § 924(c).”), appeal filed sub nom., United States
v. Santiago, No. 20-3238 (2d Cir. Sept. 22, 2020); Simmons v. United States, 2019 WL
6051443, at *2 (S.D.N.Y. Nov. 15, 2019) (Hellerstein, J.) (“When a § 924(c) conviction rests
upon both a conspiracy to commit Hobbs Act robbery and a separate valid § 924(c) predicate
offense, the conviction remains valid, even after Davis and Barrett.”).
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There were two possible valid predicates for Speed’s Count Three conviction at
the time of trial: substantive RICO in Count One, and RICO conspiracy in Count Two. The jury
was charged that “Count 1 and Count 2 are crimes of violence. It is for you to determine whether
the government has proven beyond a reasonable doubt that the defendant committed the crimes
of violence charged in Count 1 and Count 2.” (Doc 114, Ex. 5 at 1736-37.) The record leaves
no doubt that Count Three rested on convictions for both counts:
The evidence presented by the government at trial was overwhelming. Twentynine witnesses testified, including fourteen victims and two cooperating witnesses
who described their own participation in the racketeering acts and enterprise and
the charged conspiracy. The government also introduced thirteen written
messages from Speed, which were intended to convince one of the cooperating
witnesses to file a false affidavit to explain how Speed's DNA got on the ski mask
found after the Hunt Drive burglary.
Speed v. United States, 04 cr 336, 2012 WL 1003469 at *3 (S.D.N.Y. Mar. 26, 2012) (Castel, J).
Speed’s partner in crime testified at trial, confirming that he and Speed “each
brought a gun. . . to the site of [at least one of the] home invasion[s]. United States v. Speed, 04
cr 336, 2006 WL 196971 at *2 (S.D.N.Y. Jan. 26, 2006) (Castel, J). One of his victims testified
that “the short guy grabbed me in the, by the dining room door, and I was struggling with him,
trying to escape from him. And in that moment, I saw that the short guy had a gun.” Id. (citing
Tr. at 588). The jury had an opportunity to compare the heights of Speed and his partner, and
Speed was the shorter of the two. Id. In the face of this evidence, it is no surprise that the jury
found Speed guilty of both substantive RICO and RICO conspiracy. In fact, the jury found
proven eight racketeering acts, including five robberies in New York, and one robbery in New
Jersey. In the face of these facts, the Court finds that Speed’s Count Three conviction relied on
both substantive RICO in Count One, and RICO conspiracy in Count Two as the predicate
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crimes. Thus, even if RICO conspiracy is no longer a crime of violence, another predicate crime
remains.
D. The Substantive RICO Conviction (Count One) Constitutes a Crime of Violence
Of course, finding that Speed’s section 924(c) conviction rested upon both
substantive RICO and RICO conspiracy is not the end of the matter. The question that remains
is whether the substantive RICO conviction charged in Count One is a “crime of violence” under
the elements clause of section 924(c)(3), such that it would be a valid predicate for Speed’s
Count Three conviction. The Court finds that it is.
Count One charged Speed with a “pattern of racketeering activity,” in violation of
18 U.S.C. § 1962(c). Specifically, Speed was charged with having participated in the criminal
activities of the “Speed Robbery Crew, which was engaged in, and the activities of which
affected, interstate commerce, unlawfully, willfully, and knowingly conducted and participated,
directly and indirectly, in the conduct of the affairs of that enterprise . . . through the commission
of” ten racketeering acts, as set forth in the indictment. (Doc 55 at 4-13.) Racketeering acts 1, 2,
4, 6, 8, 9, and 10 were premised upon both a conspiracy to commit robbery and a substantive
charge of robbery. (Id.) Racketeering acts 3 and 7 were premised upon the crimes of interstate
transportation of stolen property and possession and sale of stolen goods; racketeering act 5 was
premised upon the crime of conspiracy to rob narcotics traffickers. (Id.) The jury convicted
Speed on Count One and found that the following racketeering acts were proven: 2, 3, 4, 6, 8, 9,
and 10. (Doc 114, Ex. 4 at 1811-14.) The jury was instructed that the racketeering acts had to be
proven beyond a reasonable doubt and its verdict had to be unanimous as to which acts were
proven. (Doc 114, Ex. 5 at 1693.) As will be developed, the Court need only focus on those
predicate acts that are premised on the crime of robbery under New York law.
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In order for Count One to be a valid predicate for Speed’s Count Three
conviction, the substantive RICO offense must have “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). Section 1962(c) of Title 18 prohibits “any person employed by or associated
with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce,
to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through
a pattern of racketeering activity or collection of unlawful debt.” A “‘pattern of racketeering
activity’ requires at least two acts of racketeering activity, one of which occurred after the
effective date of this chapter and the last of which occurred within ten years (excluding any
period of imprisonment) after the commission of a prior act of racketeering activity.” 18 U.S.C.
§ 1961(5).
The Second Circuit has observed that “a conviction under § 1962 is not
necessarily a conviction for a crime of violence,” but rather, “[b]ecause racketeering offenses
hinge on the predicate offenses comprising the pattern of racketeering activity, we look to the
predicate offenses to determine whether a crime of violence is charged.” United States v. Ivezaj,
568 F.3d 88, 95-96 (2d Cir. 2009). The Second Circuit went on to hold in Ivezaj: “[W]here the
government proves (1) the commission of at least two acts of racketeering and (2) at least two of
those acts qualify as ‘crime[s] of violence’ under § 924(c), a § 1962 conviction serves as a
predicate for a conviction under § 924(c).” Id. at 96. After Davis, these predicate acts must be
“crimes of violence” pursuant to the elements clause of § 924(c)(3)(A). See United States v.
Rodriguez, 94 cr 313 (CSH), 2020 WL 1878112, at *11 (S.D.N.Y. Apr. 15, 2020).
To determine whether the predicate racketeering acts are crimes of violence, the
Court “employ[s] either a ‘categorical approach,’ or a ‘modified categorial approach.’” Boykin,
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2020 WL 774293, at *5. Under both approaches, the Court looks “only [to] the minimum
criminal conduct necessary for conviction under a particular statute . . . .” Acosta, 470 F.3d at
135. The Court “cannot go behind the offense as it was charged to reach [its] own determination
as to whether the underlying facts qualify the offense as . . . a crime of violence.” United States
v. Hill, 890 F.3d 51, 55 (2d Cir. 2018).
Racketeering acts 4(b), 6(b), 8(b), 9(b), and 10(b), which the jury found proved,
were robberies in violation of New York Penal Law §§ 160.10 and 20.00.1 Section 160.10
provides:
A person is guilty of robbery in the second degree when he forcibly steals
property and when:
1. He is aided by another person actually present; or
2. In the course of the commission of the crime or of immediate flight therefrom,
he or another participant in the crime:
a. Causes physical injury to any person who is not a participant in the
crime; or
b. Displays what appears to be a pistol, revolver, rifle, shotgun, machine
gun or other firearm; or
c. The property consists of a motor vehicle, as defined in section one
hundred twenty-five of the vehicle and traffic law.
Robbery in the second degree is a class C felony.
N.Y. Penal Law § 160.10.
Section 20.00 of the New York Penal Law makes a person “criminally liable for”
the conduct of another if “when acting with the mental culpability required for the commission”
1
The jury also found racketeering act 2 proved, which charged robbery under New Jersey Code of Criminal Justice,
Title 2C, Chapters 15-1 and 2-6. However, because Ivezaj requires at least two racketeering acts to be classified as
crimes of violence, and all other potential predicate racketeering acts are robbery charges under the New York Penal
Law, the crime of violence classification of the New York statute is both necessary and sufficient.
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of the crime, “he solicits, requests, commands, importunes, or intentionally aids” the other
“person to engage in such conduct.”
Because the robbery statute at issue criminalizes conduct in the alternative, the
“modified categorial approach” would apply here. Mathis v. United States, 136 S. Ct. at 2249.
This permits the Court to look to the indictment and jury instructions “to determine what crime,
with what elements, [the] defendant was convicted of.” Id. The Court, however, need not follow
this approach to determine that the robberies comprising these racketeering acts were crimes of
violence. The language of the statute and prior decisions of the Second Circuit make it clear that
robbery under New York law is a crime of violence under the elements clause of section
924(c)(3)(A).
That a person must “forcibly steal” to be guilty of robbery under section 160.10
renders it categorically a crime of violence under section 924(c)(3)(A). United States v. Ojeda,
951 F.3d 66, 72 (2d Cir. 2020) (“[T]he foundational element . . . i.e., forcible stealing . . . .
categorically requires the use of physical force.”). The robbery statute “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). The Second Circuit has found that, “New York defines robbery as
‘forcible stealing,’ which requires ‘us[ing] or threaten[ing] the immediate use of physical force
upon another person.’” Pereira-Gomez, 903 F.3d at 165 (quoting N.Y. Penal Law § 160.00)
(alterations in original). “[F]orcible stealing [] is common to all degrees of robbery under New
York law . . . .” Id. at 166. As the Second Circuit recently stated: “This court has long
recognized New York robbery—in any degree—to be a violent crime under the elements clause
of ACCA and other federal laws.” United States v. Ojeda, 951 F.3d 66, 70 (2d Cir. 2020).
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In Pereira-Gomez, the Second Circuit concluded that “robbery in any degree is a
crime of violence under the ‘force clause’ of application note 1(B)(iii) to Section 2L1.2 of the
2014 Guidelines.” Pereria-Gomez, 903 F.3d at 165. The “force clause” of application note
1(B)(iii) to Section 2L1.2 of the 2014 Sentencing Guidelines provided that a “crime of violence”
would include “any other offense under federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against the person of another.” Id. at 159 n.4.
The latter portion of the “force clause” of application note 1(B)(iii) is nearly identical to the
elements clause of section 924(c)(3)(A), the only difference being that the elements clause
includes “person or property of another,” while the force clause of the application note is limited
to “the person of another.” The robberies comprising racketeering acts 4(b), 6(b), 8(b), 9(b), and
10(b), therefore, are crimes of violence under the elements clause of section 924(c)(3). See Belk
v. United States, 743 F. App’x 481, 482 (2d Cir. 2018) (summary order) (concluding that
“[b]ecuase the ‘force clause’ of the ACCA . . . contains the same language as the ‘force clause’
of the Guidelines under review in Pereira-Gomez . . . Pereira-Gomez compels us to conclude that
New York robbery in any degree also satisfies the ACCA’s ‘force clause.’”).
Speed argues that because the jury did not specify which of the underlying
racketeering acts underlying Count One—conspiracy to commit robbery or robbery—formed the
predicate for its Count Three verdict, the Court must assume that it was the conspiracy acts,
which in turn requires vacatur of the Count Three conviction because conspiracy is not a crime
of violence under the elements clause. The Court disagrees. Ivezaj holds that where “at least
two of those [racketeering] acts qualify as ‘crime[s] of violence’ under § 924(c), a § 1962
conviction serves as a predicate for a conviction under § 924(c).” Ivezaj, 568 F.3d at 96. The
presence of underlying racketeering acts that are not crimes of violence does not alter this
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principle; in fact, the defendant in Ivezaj was found guilty of a non-violent racketeering act as
well. Id. at 96 n.5. Moreover, were the court to utilize the modified categorical approach and
look to the “limited class of documents” that is permitted, the violent nature of the racketeering
acts is clear. For example, racketeering act 2b charged that “Speed and CC-1, armed with a gun
and using information provided by a co-conspirator. . . robbed and aided and abetted the robbery.
. .” (Doc 55 at 6) Racketeering act 4b charged that “Speed and CC-1 robbed, and aided and
abetted the robbery of, the occupants of a residence. . . by threatening the occupants with a knife.
. .” (Id. at 8). Racketeering act 9b charged that “Speed, CC-1 and a co-conspirator . . . armed
with guns. . . robbed and aided and abetted the robbery of individuals of proceeds from a gas
station . . .” (Id. at 12.) The jury specifically found these racketeering acts proven beyond a
reasonable doubt, along with three other robberies. (Doc 114, Ex. 4 at 1811-16.) In fact, in
finding Speed guilty of the section 924(c) charge, the jury also specifically found that Speed had
brandished the firearm. (Id. at 1814.) These documents make it clear that Speed was convicted
under either New York Penal Law § 160.10(1) or 160.10(2)(b). Both are categorically crimes of
violence under the elements clause. Pereira-Gomez, 903 F.3d at 165.
The jury was instructed that “in order for you to find the defendant guilty of
Count 3 in connection with the crime of violence in Count 1, you must further find that the
defendant used or carried a firearm during and in relation to or possessed a firearm in furtherance
of one or more of the conspiracies to commit robberies or one or more of the robberies in Count
1.” (Doc 114, Ex. 5 at 1737.) For the reasons discussed above, the Court agrees with Speed
insofar as conspiracy to commit robbery is no longer a crime of violence under section 924(c),
but the invalidity of one predicate (conspiracy to commit robbery) does not warrant vacatur of
the Count Three conviction because robbery remains a crime of violence under the elements
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clause. The jury explicitly found the substantive robbery acts, which are crimes of violence,
proved. The jury found more than two acts proven that “qualify as ‘crime[s] of violence’ under §
924(c),” and therefore, Speed’s Count One conviction remains a valid predicate for his Count
Three conviction. Ivezaj, 468 F.3d at 96.
CONCLUSION
For the reasons explained, Speed’s motion to vacate, set aside, or correct his
conviction and sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Clerk is respectfully
directed to terminate the motion (Doc 114).
SO ORDERED.
Dated: New York, New York
November 30, 2020
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