LEVY v. USA
MEMORANDUM OPINION & ORDER denying § 2255 motions filed at Crim. Nos. 15-21 and 15-22. Signed by Chief Judge Joy Flowers Conti on 6/13/17. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Criminal Nos. 15-21, 15-22
Conti, Chief District Judge.
Defendant Christopher Levy (“Levy”) asks the court to vacate his sentence and to
immediately release him from prison. Levy filed a pro se Motion to Dismiss Count Two and to
Vacate Guilty Plea on April 22, 2016, and a pro se motion pursuant to 28 U.S.C. § 2255 (“§
2255”) on May 12, 2016. (Crim. No. 15-22, ECF Nos. 114, 115). The court appointed counsel
for Levy, who filed a supplemental and a second supplemental § 2255 motion on Levy’s behalf.
(Crim. No. 15-21, ECF No. 32; Crim. No. 15-22, ECF Nos. 119, 126). The government filed a
brief in opposition to the motions and Levy filed a reply. (Crim. No. 15-21, ECF Nos. 37, 38;
Crim. No. 15-22, ECF Nos. 139, 141). On February 3, 2017, Levy filed a motion for an
immediate status conference to seek his immediate release. (Crim. No. 15-21, ECF No. 39;
Crim. No. 15-22, ECF No. 142). The court held a telephone conference on February 7, 2017,
and requested additional briefing from the parties. Those briefs have been filed (Crim. No. 1521, ECF No. 43; Crim. No. 15-22, ECF Nos. 146, 147), and the motions are ripe for disposition.
An evidentiary hearing is not necessary.
Defendant’s various motions raise essentially the same issues and seek the same relief.
The second supplemental motion (Crim. No. 15-21, ECF No. 32; Crim. No. 15-22, ECF No.
126) incorporates the arguments made in the earlier motions and adds allegations of ineffective
assistance of counsel. The pro se motion to dismiss count two and to vacate guilty plea (Crim.
No. 15-22, ECF No. 114), the pro se motion pursuant to 28 U.S.C. § 2255 (Crim. No. 15-22,
ECF No. 115), the supplemental § 2255 motion (Crim. No. 15-22, ECF No. 119), and the motion
for immediate status conference (Crim. No. 15-21, ECF No. 39; Crim. No. 15-22, ECF No. 142),
therefore, will be DENIED AS MOOT. The court has considered all the legal arguments
articulated by defendant.
Levy contends that he is now serving an illegal sentence, in that: (1) he has completed
his two-year agreed-upon sentence for conspiracy to commit Hobbs Act robbery; (2) he is now
serving a consecutive five-year sentence for possession of a firearm in furtherance of a “crime of
violence” pursuant to 18 U.S.C. § 924(c); and (3) his § 924(c) conviction is legally invalid and
must be vacated. Levy reasons that he could not have possessed a firearm in furtherance of a
crime of violence because the predicate Hobbs Act conspiracy is not a “crime of violence”
pursuant to Johnson v. United States, 135 S. Ct. 2552 (2015) (holding that the “residual clause”
in 18 U.S.C. § 924(e) is unconstitutionally vague). Defendant argues that his original attorney
was ineffective for advising him to plead guilty to these charges.
Levy contends that his § 2255 motion is timely because it was filed within one year of
Johnson and prior to Johnson, he had no basis to challenge his § 924(c) conviction. 28 U.S.C. §
2255(f)(3). His reasoning is two-fold: (1) conspiracy cannot qualify as a predicate offense under
the § 924(c) “elements” clause because the essence of conspiracy is an agreement and use of
force is not an element of a conspiracy crime; and (2) conspiracy can no longer qualify under the
§ 924(c) “residual” clause because after Johnson, the “residual” clause is unconstitutionally
vague. The court will consider for the sake of argument that Levy’s motion is timely because
the timeliness analysis is intertwined with the merits of his arguments.
The government maintains that Levy’s conviction and sentence are valid. The
government argues: (1) Levy’s original counsel was not ineffective; (2) Levy’s claims are
procedurally defaulted because he failed to raise these arguments at sentencing or on direct
appeal; (3) new Third Circuit Court of Appeals precedent in the companion decisions of United
States v. Robinson, 844 F.3d 137 (3d Cir. 2016), and United States v. Galati, 844 F.3d 152 (3d
Cir. 2016), mandates that Levy committed a “crime of violence” based on the record in this case;
(4) the holding in Johnson regarding the residual clause in § 924(e) did not invalidate the
different “residual clause” in § 924(c) at issue in this case; and (5) conspiracy to commit Hobbs
Act robbery is a “crime of violence” under both the “elements” and “residual” clauses of §
924(c). The government argues that, if Levy is given any relief, the appropriate remedy is not
immediate release, but resentencing de novo under the “sentencing package doctrine.” United
States v. Davis, 112 F.3d 118, 123 (3d Cir. 1997) (remanding for resentencing on multiple counts
where mandatory consecutive sentence was stricken).
II. Factual and Procedural Background
Law enforcement agents were in the midst of a long-term investigation when they
intercepted a series of telephone calls in which Levy and co-defendants Scott Kulikowski and
Raymond Kober planned to commit an armed robbery of an auto parts store on September 8,
2014. Levy was arrested while driving to the store on that day. A firearm was recovered from
the car. Because Levy was stopped before he arrived at the store, the robbery did not occur.
Levy was charged in two separate criminal cases. At Criminal Action No. 15-21, Levy
was charged with: (1) possession of a firearm by an unlawful user or addict; and (2) possession
of a firearm by a person subject to a court order, in violation of 18 U.S.C. § 922(g)(8). At
Criminal Action No. 15-22, Levy was charged with: (1) conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a); (2) possession of a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i); (3) possession of a firearm by a person
subject to a court order; and (4) possession of a firearm by an unlawful user or addict. The
Hobbs Act conspiracy count charged, in relevant part, that Levy and others conspired to obstruct
commerce by robbery, “by means of actual and threatened force, and violence and by placing
[the victims] in fear of immediate and future injury to their persons and property.” (Crim. No.
15-22, ECF No. 39). The § 924(c) count charged, in relevant part, that Levy knowingly
possessed a firearm “in furtherance of a crime of violence, that is, unlawfully obstructing,
delaying and affecting commerce, and the movement of articles and commodities in commerce
by robbery, and conspiring to do so, in violation of [§ 1951(a)], as charged in Count One of this
Indictment, and possessed said firearm in furtherance of said crime.” Id.
Levy and the government entered into a plea agreement pursuant to which Levy agreed to
plead guilty to count 2 of the indictment at Criminal Number 15-21 and counts 1 and 2 of the
indictment at Criminal Number 15-22. Levy acknowledged his responsibility for the conduct
charged at the other counts of the indictments and stipulated that “the conduct charged in those
Counts may be considered by the Probation Office or by the Court in calculating the guideline
range and in imposing sentence.” Plea Agreement ¶ A(2). Levy waived his right to file a direct
appeal, except in limited circumstances, but specifically reserved his ability to file a collateral
attack for an ineffective assistance of counsel claim. Id. ¶ A(9). The parties stipulated to an
appropriate sentence as follows:
Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties stipulate
and agree that the appropriate sentence in this case is a term of imprisonment of
seven (7) years [two (2) years imprisonment at Count Two of Criminal No. 15-21
and at Count One of Criminal No. 15-22 to run concurrently with one another,
and five (5) years imprisonment at Count Two of Criminal No. 15-22 to run
consecutively thereto] . . . .
Id. at ¶ C(6). The parties agreed that “no other enhancements, departures or variances are
applicable or appropriate.” Id. The agreement reflected a downward variance because the
advisory guideline range was 30-37 months plus the mandatory five-year consecutive sentence
for possession of a firearm in furtherance of a crime of violence.
On July 6, 2015 (approximately two weeks after the Supreme Court’s decision in
Johnson on June 26, 2015), the court conducted a thorough change of plea colloquy. (Crim. No.
15-22, ECF No. 140). According to the prosecution’s summary of the offense conduct,
Kulikowski was aware through his legitimate business as a tow truck driver that the auto parts
store kept large amounts of cash on the premises. Kulikowski had Levy commit the actual
robbery so that Kulikowski would not be recognized by the intended victims. Kober gave Levy
a gun. All conspirators knew it was going to be an armed robbery. Agents apprehended Levy
within blocks of the store on that date, and recovered a firearm from his car. See Transcript of
Plea Hearing, Crim. No. 15-22, ECF No. 140 at 20-21. Levy was asked whether he agreed with
the prosecution’s summary about what he did and responded “Yes.” Id. at 22. Levy affirmed
that he agreed to rob the business and had a firearm at that time. Id. at 22-23. Levy pled guilty
to both offenses. Id. at 23. The court found that Levy’s guilty plea was knowing and voluntary
and supported by an independent basis in fact for each element of the offenses. Id. at 24.
Following Levy’s guilty plea, the probation office prepared a Presentence Investigation
Report (“PSI”), which contained a description of the offense conduct. The PSI reflected that all
conspirators knew that Levy was going to commit an armed robbery of the auto parts store and
officers seized a firearm from Levy’s car when they apprehended him on his way to the store.
See PSI ¶¶ 9-13, Crim. No. 15-21, ECF No. 20 (under seal). Levy had no objections to the
contents of the PSI. (Crim. No. 15-21, ECF No. 23). In his sentencing memorandum, Levy
admitted that he was “an integral part of the Hobbs Act Robbery conspiracy involving use of a
firearm,” although the idea to commit the robbery did not originate with him. (Crim. No. 15-21,
ECF No. 25 at 7). At the sentencing hearing on October 16, 2015, the court accepted the plea
agreement and imposed the stipulated sentence. (Crim. No. 15-21, ECF No. 42).
III. Legal Analysis
The statute of conviction, § 924(c), imposes a five-year mandatory minimum consecutive
sentence for “any person who, during and in relation to any crime of violence or drug trafficking
crime . . ., uses or carries a firearm, or who, in furtherance of any such crime, possesses a
firearm. . . .” 18 U.S.C. § 924(c)(1)(A). Sections 924(c)(1)(A)(ii) and (iii) provide more severe
penalties if the firearm is “brandished” or “discharged.” The “elements” clause and “residual
clause” in § 924(c) are defined as follows:
(3) For purposes of this subsection the term ‘crime of violence’ means 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.
18 U.S.C. § 924(c)(3) (emphasis added).
The statute which governs Levy’s Hobbs Act predicate offense provides as follows:
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or extortion
or attempts or conspires so to do, or commits or threatens physical violence
to any person or property in furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this title or imprisoned not more
than twenty years, or both.
(b) As used in this section—
(1) The term “robbery” means the unlawful taking or obtaining of personal
property from the person or in the presence of another, against his will, by
means of actual or threatened force, or violence, or fear of injury, immediate
or future, to his person or property, or property in his custody or possession,
or the person or property of a relative or member of his family or of anyone
in his company at the time of the taking or obtaining.
18 U.S.C. § 1951 (emphasis added).
A. Third Circuit Court of Appeals’ Precedent
On December 19, 2016, the Third Circuit Court of Appeals issued two companion
decisions in Robinson and Galati which adopted a new analysis when the predicate offense and §
924(c) offense are contemporaneous. 844 F.3d 137; 844 F.3d 152. On February 7, 2017, the
court denied a petition for rehearing by the panel or en banc. Denial of Sur Petition for
Rehearing, Nos. 15-1402, 15-1609 (3d Cir. February 7, 2017); available at ecf.ca3.uscourts.gov.
In Robinson, the defendant (“Robinson”) brandished a firearm during two robberies
committed a few hours apart. 844 F.3d at 139. A jury convicted Robinson of two counts of
Hobbs Acts robbery and brandishing a firearm during the commission of a crime of violence
under 18 U.S.C. § 924(c).1 On appeal, Robinson sought to overturn his § 924(c) conviction on
the ground that Hobbs Act robbery is not a “crime of violence” under the “elements” clause and
that the “residual” clause is unconstitutionally vague based on Johnson. Robinson argued that
the court should look at the statutory definition of Hobbs Act robbery under the “categorical
approach” to determine whether the minimum conduct criminalized by the statute constitutes a
For the purpose of upholding a § 924(c) conviction, it is irrelevant whether a defendant was
charged and convicted of “using or carrying” a firearm rather than “brandishing” a firearm.
United States v. Greer, No. CR 10-711-01, 2017 WL 1020999, at *2 (E.D. Pa. Mar. 16, 2017)
(citing United States v. White, No. 15-1970, 2017 WL 497659 (3d Cir. Feb. 7, 2017)
“crime of violence.” Robinson’s attorney posited scenarios in which the crime could be
committed by throwing paint on someone’s house, pouring chocolate on a passport, or spray
painting a car. Id. at 144. The government agreed that the “categorical approach” should be
used. Id. at 141.
The court of appeals disagreed with both parties. It held that the “categorical approach”
described in Taylor v. United States, 495 U.S. 575 (1990), is not appropriate when the predicate
offense and § 924(c) offense are “contemporaneous” and tried to the same jury. Robinson, 844
F.3d at 141. “[A]nalyzing a § 924(c) predicate offense in a vacuum is unwarranted when the
convictions of contemporaneous offenses, read together, necessarily support the determination
that the predicate offense was committed with the ‘use, attempted use, or threatened use of
physical force against the person or property of another.’” Id. at 143. When the offenses are
contemporaneous, the court explained, “the record of all necessary facts are before the district
court.” Id. The jury’s determination will “unmistakably shed light” on whether the predicate
offense was committed with the use, attempted use, or threatened use of physical force necessary
to sustain a § 924(c) conviction. Id. The court explained that the contemporaneous § 924(c)
conviction sheds light on the means by which the predicate offense was committed. Id. at 143.
The defendant suffers no prejudice, the court reasoned, because the sentencing court “is not
finding any new facts which are not of record in the case before it.” Id.
The court explained that although the definition of “crime of violence” directs courts to
look at the elements of an offense, the value in examining the contemporaneous convictions is in
elucidating an otherwise ambiguous element in the statute. Id. at 144. The court explained that
the combined convictions made clear that Robinson committed the predicate offenses in a
manner that made them “crimes of violence.” Id. The court explained that Robinson’s Hobbs
Act robberies involved the use, attempted use, or threatened use of force which “sprang from the
barrel of a gun” rather than one of the “far-fetched scenarios” posited by defense counsel. Id.
His § 924(c) conviction was affirmed. Because the court of appeals rejected Robinson’s
arguments based on the “elements” clause of § 924(c), it did not reach his challenge to the
residual clause under Johnson.2 The court specifically noted that its holding applied not only to
facts found by a jury, but also to those “admitted by the defendant in a plea.” Id. at 143.
Judge Fuentes, concurring, would have applied the categorical approach and looked only
at the statutory elements of the predicate offense, rather than the “actual underlying conduct of
the defendant.” Id. at 147-48. Judge Fuentes criticized the majority’s analysis as suffering from
“circularity” because whether or not the underlying crime qualified as a predicate offense
depended on the jury’s verdict. Judge Fuentes concluded that Hobbs Act robbery is categorically
a crime of violence. Id.
In Galati, the court of appeals applied the Robinson analysis to a contemporaneous
conspiracy predicate conviction.3 The defendant (“Galati”) hired two gunmen to shoot his
daughter’s boyfriend and was convicted of aiding and abetting the discharge of a firearm during
a crime of violence under § 924(c), and conspiring to do the same. Galati argued that his
predicate offenses did not constitute “crimes of violence” because the element of personal injury
was not charged in his indictment. Id. at 155. The court rejected this argument and explained
that it was “irrelevant” whether or not a predicate offense was properly charged for the purpose
of determining whether Galati had committed a “crime of violence.” Id.
The court noted: “The definition of Hobbs Act robbery borrows conceptually, if not
linguistically, from § 924(c)(3)(A)’s definition of ‘crime of violence.’ Both definitions refer to
the use or threatened use of force against person or property, and the robbery definition goes so
far as to include the term ‘violence.’ This language would seem adequate in and of itself to
satisfy the ‘elements’ clause of § 924(c)(2)(B).” Id. at 144.
The conspiracy charge in Galati was based on 18 U.S.C. § 924(o) (conspiracy to commit an
offense under § 924(c)), rather than Hobbs Act conspiracy.
The court explained that under § 924(c), the government must prove only that a
defendant “committed” a predicate crime of violence, but need not “charge” or “convict” the
defendant of such an offense. Id. & n.9 (citing United States v. Lake, 150 F.3d 269, 275 (3d Cir.
1998)). In Lake, in turn, the court cited United States v. Nelson, 27 F.3d 199 (6th Cir. 1994), for
the proposition that “while it is necessary for the government to present proof of the underlying
crime to convict under § 924(c), a defendant need not be convicted or even charged with the
underlying crime to be convicted under § 924(c).” Id. at 200 (collecting decisions). In Galati,
the court explained: “Whether the matter was properly charged or not, the jury in this case found
that Galati’s participation in the murder-for-hire scheme resulted in personal injury.” 844 F.3d at
155.4 The court concluded: “Galati’s effort to cast his involvement in a scheme that ended with
a man being shot as lacking the use of physical force is creative, but his arguments defy our
recent precedent.” Id. In Galati, as in Robinson, a firearm had been used and the use of that
firearm indicated the use, attempted use or threatened use of physical force to establish that
Galati committed a crime of violence under the “elements” clause of § 924(c). Id.
The Robinson and Galati analysis has been followed several times. In White, 2017 WL
497659, the defendant (“White”) committed an armed robbery of a speakeasy and was convicted
of Hobbs Act conspiracy and robbery, witness tampering, and carrying a firearm during a crime
of violence under § 924(c). White argued that Hobbs Act robbery is not a predicate crime of
violence under Johnson and his § 924(c) conviction should be vacated. The court declined to
decide whether Johnson applied to the residual clause in § 924(c) because it was clear after
applying the Robinson analysis that White had committed a crime of violence under the
“elements” clause. 2017 WL at 497659. In Greer, 2017 WL 1020999, two coconspirators went
The court concludes that the same principle applies equally to cases resolved by a guilty plea.
See Robinson, 844 F.3d at 143 (facts to establish crime of violence may be found by the jury or
admitted in a plea).
into an office, pointed a gun at the owner, beat her with a crowbar, bound her with duct tape and
stole jewelry. Citing Robinson, the court upheld Greer’s § 924(c) conviction based on predicate
offenses of Hobbs Act conspiracy and Hobbs Act robbery. Id. at *2. In United States v. Milan,
No. 1:08-CR-073, 2017 WL 1155075, at *1 (M.D. Pa. Mar. 28, 2017), the defendant admitted in
the plea hearing that he and others carried firearms into a bank, he pointed a pellet gun at a
teller's head and another conspirator discharged a firearm. Applying Robinson, the court upheld
his § 924(c) conviction based on a predicate bank robbery offense. The court declined to address
whether attempted bank robbery or Hobbs Act conspiracy was a predicate crime of violence. Id.
In United States v. Griffith, No. 1:08-CR-073, 2017 WL 1078155, at *2 (M.D. Pa. Mar. 22,
2017), the court upheld a § 924(c) conviction even though there was a dispute about whether the
defendant possessed a firearm. The court explained that “as an aider and abettor, he was as
culpable as those who had guns.” Id.
B. Application of Third Circuit Court of Appeals’ Precedents
The Robinson and Galati analysis, rather than the categorical approach, governs this case
because Levy’s crimes were “contemporaneous.”
Levy’s predicate offense and § 924(c) crime
were committed at the same time and were part of the same indictment and plea agreement
proceedings. Therefore, the court must look at “the record of all necessary facts before the
district court” to determine the means by which a contemporaneous predicate offense was
committed by Levy. Robinson, 844 F.3d at 141. In this case, the relevant facts are those
admitted by Levy in his guilty plea. Id. at 143.
Levy argues that he never actually used force or committed an armed robbery. The
fortuity that Levy was apprehended before he reached the auto parts store does not redound to his
legal benefit. In United States v. Yousef, the court explained: “A defendant may be convicted of
attempt even where significant steps necessary to carry out the substantive crime are not
completed, so that ‘dangerous persons [may be apprehended] at an earlier stage . . . without
immunizing them from attempt liability.’” 327 F.3d 56, 134 (2d Cir. 2003) (citation omitted).
The Third Circuit Court of Appeals rejected an argument similar to Levy’s in United States v.
Moore, 451 F. App’x 67, 71-72 (3d Cir. 2011), reasoning as follows:
Moore’s argument that his actions did not constitute a “substantial step” because
the policemen apprehended him before he arrived at the transaction site is
unavailing. In order to prove that the defendant took a substantial step, the
government need not prove that he or she performed “the last act necessary” to
consummate the crime. Yousef, 327 F.3d at 134 (citation omitted); see United
States v. Barnes, 230 F.3d 311, 315 (7th Cir. 2000) (“A substantial step is
something more than mere preparation, but less than the last act necessary before
the actual commission of the substantive crime.”); United States v. Pratt, 351 F.3d
131, 137 (4th Cir. 2003) (finding that defendant took “substantial step” to possess
with intent to distribute illegal drugs when government offered evidence of
recorded conversations between defendant and co-conspirator and evidence that
defendant promised to serve as a “middleman” in drug transaction).
Section § 924(c) expressly encompasses “attempted” use of force. The elements of the
crime of “attempt” under federal law are: (1) the defendant acted with the requisite intent to
violate the statute, and (2) performed an act that, under the circumstances as the defendant
believed them to be, constituted a “substantial step” in the commission of the crime. United
States v. Manzo, 636 F.3d 56, 66 (3d Cir. 2011) (citing United States v. Tykarsky, 446 F.3d 458,
469 (3d Cir. 2006)) (sending instant messages to FBI agent posing as young girl to arrange
meeting and driving to motel constituted a “substantial step” to uphold conviction for attempted
enticement of a minor). In Moore, the court explained that the acts of reconnoitering the target
location or possessing materials to be employed in the commission of the crime qualify as
“substantial steps” to support an attempt conviction. 451 F. App’x at 71. In Tykarsky and
Moore, the act of driving toward the site of the planned transaction constituted a “substantial
Levy had the requisite mens rea because it is undisputed that all conspirators had
knowledge and intent that Levy would commit an armed robbery with a gun. (Plea Hearing
Colloquy, Crim. No. 15-22, ECF No. 140). Levy took substantial steps to carry out the armed
robbery by obtaining a gun and driving toward the auto parts store on the day of the planned
holdup. These actions constitute the crime of “attempt” even though Levy did not perform the
“last act necessary” to complete the robbery.
The court recognizes that Levy was not explicitly charged with attempted robbery under
the Hobbs Act and did not plead guilty to that offense. The Third Circuit Court of Appeals in
Galati held, however, that the actual charge is “irrelevant” because the statutory focus is on
whether a defendant “committed” the predicate offense. 844 F.3d at 155. Regardless of how the
indictment was drafted, the evidentiary record establishes as a matter of law that Levy
“committed” an attempted Hobbs Act robbery with a firearm.
Not all attempted robberies constitute, ipso facto, attempted uses of force. For example, a
person who merely performed an unarmed “dry run” may not have attempted to use force, even
if he planned to later acquire a weapon and use it in the actual robbery. In this case, however,
Robinson and Galati instruct the court to consider whether the factual record of the
contemporaneous convictions establishes that Levy engaged in the “attempted use” of force
within the scope of § 924(c). The record in this case is clear. Levy possessed a firearm in
furtherance of an attempted armed robbery, which was forestalled only by the intervention of law
enforcement. Levy pled guilty to conspiracy to obstruct commerce by robbery, “by means of
actual and threatened force, and violence and by placing [the victims] in fear of immediate and
future injury to their persons and property.” (Crim. No. 15-22, ECF No. 39). Levy also pled
guilty to the § 924(c) count of the indictment, which charged that he knowingly possessed a
firearm “in furtherance of a crime of violence.” Id. In the plea hearing, Levy agreed that the
prosecutor’s summary of the evidence was accurate, including the facts that all conspirators
knew Levy was going to commit an armed robbery and he possessed a firearm in his car on the
way to the auto parts store on September 8, 2014. Levy did not object to the similar description
of his offense conduct in the PSI. See United States v. McDowell, 888 F.2d 285, 291 n.1 (3d Cir.
1989) (“A conclusion in the presentence investigation report which goes unchallenged by the
defendant is, of course, a proper basis for sentence determination.”). In summary, Levy
“committed” the crime of attempted armed Hobbs Act robbery in a violent manner. The
attempted force or violence or fear of injury “sprang from the barrel of the gun” Levy possessed
as he drove to the auto parts store, rather than any non-violent “far-fetched scenario.” See
Robinson, 844 F.3d at 144.
Under the analysis mandated by the court of appeals in Robinson and Galati, the
attempted robbery of the auto parts store was a predicate “crime of violence,” and thus, Levy’s
conviction for possession a firearm in furtherance of a crime of violence is lawful. Levy’s
conviction is valid under the “elements” clause of § 924(c).
C. Levy’s Arguments
Levy argues that Robinson is distinguishable because he was charged with and pled
guilty to conspiracy, not robbery, and conspiracy is categorically not a crime of violence. The
court need not address this argument because, as explained above, the new analysis adopted in
Robinson and Galati has displaced the “categorical approach” when the offenses are
contemporaneous.5 The crime with which Levy was “charged” does not matter; the relevant
question is whether the factual record demonstrates that he “committed” a predicate offense.
Even under the categorical approach, conspiracy to commit Hobbs Act robbery and attempted
Hobbs Act robbery would likely be crimes of violence under Third Circuit Court of Appeals’
As in Robinson and Galati, Levy’s conviction is valid under the “elements” clause of §
924(c). The court does not reach, therefore, the Johnson-based question of whether his
conviction would be sustained under the “residual” clause, 18 U.S.C. § 924(c)(3)(B) or the
parties’ arguments regarding the “sentencing package doctrine.”
F. Ineffective Assistance of Counsel
In the plea agreement, Levy specifically preserved his right to file a claim of ineffective
assistance of counsel. Such claims are analyzed under the familiar framework set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984):
A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction . . . has two components. First, the defendant must
show that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.
Levy’s motion can be decided on the “prejudice” prong.6 To establish prejudice, the
defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional
precedent. See United States v. Preston, 910 F.2d 81, 86 (3d Cir. 1990) (conspiracy to commit
robbery under Pennsylvania law is a “violent felony” under the “elements” clause of §924(e)
because the elements of criminal conspiracy to commit robbery “subsume the elements of
robbery, which is a violent felony for purposes of § 924(e).”); United States v. O’Brien, 972
F.2d 47, 52 (3d Cir. 1992) (“Given Preston’s holding that criminal conspiracy can be a violent
felony, it necessarily follows that criminal attempt can also be a violent felony.”); United States
v. Gorny, 655 F. App’x 920, 924-25 (3d Cir. 2016) (attempted aggravated assault under
Pennsylvania law was a “crime of violence” under the elements clause of the sentencing
Levy’s claims are not procedurally defaulted. The foregoing analysis of the merits of his
claims is necessary under the “prejudice” prong of the Strickland test.
errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
Levy suffered no prejudice due to alleged ineffective assistance of counsel in allowing
him to plead guilty to the § 924(c) offense because the result of his proceeding would not have
been different. As explained above, Levy’s § 924(c) conviction is valid and his five-year
consecutive sentence is appropriate. Levy is not entitled to release from prison. By virtue of the
plea agreement, his sentence is below the otherwise-applicable guideline range. In summary, his
claim of ineffective assistance of counsel is DENIED.
Under the applicable precedential case law, the court is constrained to conclude that the
second supplemental § 2255 motion filed on Levy’s behalf (Crim. No. 15-21, ECF No. 39; Crim.
No. 15-22, ECF No. 126) must be DENIED. The remainder of Levy’s motions will be DENIED
V. Certificate of Appealability
When a district court issues a final order denying a § 2255 motion, the court must also
make a determination about whether a certificate of appealability (“COA”) should issue or the
clerk of the court of appeals will remand the case to the district court for a prompt determination
as to whether a certificate should issue. See 3rd Cir. LAR 22.2. When the district court denies a
habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional
claim, a certificate of appealability should issue when the petitioner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484–85 (2000); 28 U.S.C.
Although numerous unsettled questions of law exist post-Johnson, this case involves an
application of the recent Third Circuit Court of Appeals precedents in Robinson and Galati, on
which there has been no debate by jurists of reason. A certificate of appealability, therefore, will
not be issued.
An appropriate order will be entered.
BY THE COURT:
June 13, 2017
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Criminal Nos. 15-21, 15-22
AND NOW, this 13th day of June, 2017, for the reasons set forth in the
accompanying opinion, IT IS HEREBY ORDERED that the pro se motion to dismiss count two
and to vacate guilty plea (Crim. No. 15-22, ECF No. 114), the pro se motion pursuant to 28
U.S.C. § 2255 (Crim. No. 15-22, ECF No. 115), the supplemental § 2255 motion (Crim. No. 1522, ECF No. 119), and the motion for immediate status conference (Crim. No. 15-21, ECF No.
39; Crim. No. 15-22, ECF No. 142) are DENIED AS MOOT, and the second supplemental §
2255 motion filed on Levy’s behalf (Crim. No. 15-21, ECF No. 32; Crim. No. 15-22, ECF No.
126) is DENIED. A certificate of appealability shall not issue.
BY THE COURT:
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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