The conviction of a federal defendant as a career offender can be substantiated by assault convictions secured against the same defendant during a prior stint in jail, U.S. District Judge Richard Berman of the Southern District of New York ruled in a case of first impression, denying an inmate’s motion to vacate his 2014 sentence of six years.

Berman wrote that the fact pattern is novel in the courts of the Second Circuit and confirmed to the same ruling reached by a court in the First Circuit.

Sammy Ortiz pleaded guilty before Berman to a heroin and cocaine drug possession charge as part of a deal with prosecutors. Based on his past history, including separate state attempted assault and attempted robbery convictions, Ortiz was subject to a guidelines range of 151 to 188 months. As part of the plea deal, he acknowledged in open court that he was subject to more than twice the sentence length he was given.

In 2016, Ortiz filed a motion to vacate his sentence, based on the U.S. Supreme Court’s 2015 decision in Johnson v. United States, which was made retroactive by the court’s 2016 decision in Welch v. U.S. The pair of cases held that increased sentences under the Armed Career Criminal Act’s residual clause violated defendants’ due process rights.

Neither Ortiz’s third degree robbery nor his second-degree assault qualified as a violent crime under the U.S. sentencing guidelines, he argued.

“That clause defines a ‘crime of violence’ as a felony offense that ‘presents a serious potential risk of physical injury to another,’” Ortiz’s motion stated. “The clause is materially indistinguishable from ACCA’s residual clause, which was invalidated by Johnson.”

In his order denying the vacatur, Berman dismissed this argument, finding that both prior convictions constituted crimes of violence as it pertained to federal sentencing guidelines under the ACAA’s separate “force clause.”

Berman found persuasive the recent First Circuit decision in Lassend v. United States, which found that a state conviction of prison assault—committed by an incarcerated person with intent to cause injury to someone else—constitutes a violent felony under the ACAA. The First Circuit panel found that there is “no realistic way” of violating the New York State statute “without using violent force.”

According to the record, Ortiz was serving time at the Coxsackie Correctional Facility in 1999 on an eight year sentence for criminal possession of a weapon. Ortiz reportedly attacked two other inmates with a five-inch shake, stabbing a correction officer attempting to break up the incident.

His conviction, then, of attempted second degree assault while serving a prison sentence “is most assuredly a crime of violence based upon the plain meaning of the statute and the conclusion of logic of Lassend,” Berman found.

The district court noted that, as of yet, there appears to be no Second Circuit decision which directly addresses this part of New York State law.

Even as Ortiz’s petition would have failed based on the Lassend decision, Berman ruled that motion failed on its face because Ortiz had previously waived his right to pursue a habeas challenge to his sentence.

Ortiz’s appointed counsel, solo practitioner Stephanie Carvlin, did not respond to a request for comment.


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