Scalisi v. U.S.

MEMORANDUM AND ORDER Currently before the Court is a petition filed by Stefano Scalisi (“Scalisi” or “Petitioner”) pursuant to 28 U.S.C. §2255 seeking to vacate his conviction under 18 U.S.C.§924(c) in light of the Supreme Court’s decision in United States v. Davis, __ U.S. __, 139 S. Ct. 2319 (2019). See Motion to Vacate, ECF No. 113 (the “Petition”), Supplemental Letter, ECF No. 127. For the reasons set forth below, the Petition is GRANTED. BACKGROUND¹ On April 12, 2012, Scalisi pled guilty to two counts — violation of the Hobbs Act, 18 U.S.C. §1951(a), for conspiracy to commit robbery (“Count One” or the “Hobbs Act conspiracy count”), and the use of a firearm in relation to a crime of violence in violation of 18 U.S.C. §924(c) (“Count Three or the “§924(c) count”). He was sentenced to consecutive prison terms of 33 months on Count One and 60 months on Count Three, resulting in a total imprisonment term of 93 months. He was further sentenced to concurrent terms of supervised release of 3 years on Count One and 5 years on Count Three. See Minute Entry, ECF No. 102. Scalisi did not appeal his conviction or sentence. On June 17, 2016, the Federal Defenders of New York, in accordance with Administrative Order 2016-05 of the Eastern District of New York,² filed a “placeholder” motion on Petitioner’s behalf seeking vacatur of the conviction on the §924(c) count. See Petition at 5. The Petition argues that based on the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015), conspiracy to commit Hobbs Act robbery is not a “crime of violence,” an essential element to a §924(c) conviction. Id. In response, the Government argues that (1) Scalisi waived his right to collaterally challenge his conviction and sentence, see Response Brief in Opposition (“Gov’t Opp.”), ECF No. 121, at 3-5; and (2) conspiracy to commit Hobbs Act robbery is a crime of violence under §924(c). Id. at 5-10. Further briefing on the motion was stayed pending determination of various cases clarifying the effect of the Johnson decision on other statutory frameworks. In a supplemental letter dated March 16, 2022, Petitioner raises Davis, in which the Supreme Court found that §924(c)(3)(B), the statute’s residual clause, is unconstitutionally vague. See Davis, 139 S. Ct. at 2319 (holding the residual clause of §924(c)(3)(B) which “defines a ‘crime of violence’ [in §924(c)] as a felony ‘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’” as unconstitutionally vague). Scalisi argues that in the wake of Davis, the Hobbs Act robbery conspiracy conviction cannot serve as the predicate crime supporting the §924(c) count. He further notes that even though he has been released from prison, his current term of supervised release includes the concurrent five-year term for the §924(c) conviction.³ Vacatur of his conviction on the §924(c) count would reduce his term of supervised release to three years, ending in August 2022. No response to this submission was filed by the government. STANDARD OF REVIEW Pursuant to Section 2255, a prisoner in custody⁴ may move to vacate, set aside, or correct the sentence on the grounds 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). To merit relief under Section 2255, a petitioner must demonstrate “a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (internal quotation marks and citation omitted). The petitioner must also show that the constitutional error had “substantial and injurious effect” that caused “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks and citation omitted). DISCUSSION I. Applicability of the Plea Waiver Pursuant to the plea agreement, Scalisi agreed “not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. §2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 106 months or below.” See Gov’t Opp., Attachment A (“Plea Agreement”) at 4. The Government argues that this plea waiver bars his petition. “Waivers of the right to appeal a sentence are presumptively enforceable,” United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010), and are found to be unenforceable “only in very limited situations, such as when the waiver was not made knowingly, voluntarily, and competently, when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed to enunciate any rationale for the defendant’s sentence.” Id. (internal quotation marks & citation omitted); see also United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (“A violation of a fundamental right warrants voiding an appeal waiver.”).⁵ Although the Second Circuit has expressly decided that a knowing and voluntary plea waiver is enforceable where the petitioner asserts a Johnson challenge to the Sentencing Guidelines, see Sanford v. United States, 841 F.3d 578 (2d Cir. 2016) (per curiam), it has not directly addressed whether a petitioner can overcome a plea waiver where the statute underlying the conviction itself was subsequently found to be unconstitutional under Davis. See Velasquez v. United States, No. 12-CR-0063 (JFB), 2022 WL 426166, at *3 n.3 (E.D.N.Y. Feb. 11, 2022) (noting that the issue of whether a petitioner under a plea agreement waives his right to assert a Davis claim on appeal or collateral attack “remains an open question”).⁶ Without clear direction, “[c]ourts within this Circuit are divided whether, when a petitioner has agreed to a collateral attack waiver in a plea agreement, the waiver is enforceable when the petitioner seeks habeas relief pursuant to Davis.” Hernandez v. United States, No. 14-CR-0264 (JS), 2021 WL 3426110, at *3 (E.D.N.Y. Aug. 5, 2021) (collecting cases)). Courts finding the plea waiver enforceable to foreclose a Davis challenge rely upon Sanford. See United States v. Welch, No. 17-CR-126 (ERK), 2020 WL 6200168, at *2 (E.D.N.Y. Oct. 22, 2020); Elliott v. United States, No. 17-CR-128 (ARR), 2019 WL 6467718, at *4 (E.D.N.Y. Dec. 2, 2019). Courts finding the waiver unenforceable distinguish Sanford on the basis that “Sanford, and each of the cases relied upon by Sanford, dealt with challenges to the sentence imposed, rather than the basis of the conviction itself.” Negron, 520 F. Supp. 3d at 302 (noting that “nothing in Sanford expressly precludes the Court from finding the waiver of appealability is voided where a petitioner challenges the constitutionality of his conviction, rather than the length of a sentence imposed”); see also United States v. Candelario, No. 10-CR-281 (JMA), 2021 WL 2037866, at *3 n.3 (E.D.N.Y. May 21, 2021) (finding waiver enforceable where petitioner challenged sentence, noting that courts have found waivers unenforceable where the challenges was to “the constitutionality of the underlying conviction, not the sentence” (emphasis in original)); Jacques v. United States, No. 07-CR-0844 (JS), 2020 WL 5981655, at *4 (E.D.N.Y. Oct. 8, 2020) (as petitioner challenges the constitutionality of his conviction under Davis, the relief sought “differs from Sanford” and the waiver is not enforceable). Moreover, courts finding a waiver unenforceable to prevent a Davis claim have acknowledged a defendant’s fundamental, due process right “to challenge his conviction under a statute that the Supreme Court has retroactively declared unconstitutional.” Bonilla v. United States, No. 07-CR-0097 (SJ), 2020 WL 489573, at *3 (E.D.N.Y. Jan. 29, 2020). Indeed, “[i]t is difficult to imagine a right more fundamental than the due process right implicated when a new rule changes the scope of the underlying criminal proscription such that a defendant stands convicted of an act that the law does not make criminal.” Id. (quoting Leyones v. United States, No. 10-CR-743 (ARR), 2018 WL 1033245, at *3 (E.D.N.Y. Feb. 22, 2018)); see also United States v. McCarron, No. 15-CR-257 (ADS), 2020 WL 2572197, at *3 (E.D.N.Y. May 20, 2020) (“in light of Davis and Barrett, the Defendant’s sentence is based on constitutionally impermissible factors, namely, a conviction under an unconstitutional statute”). In this situation, “the procedural arguments offered by the Government cannot justify” a defendant’s incarceration for that conviction. Bonilla, 2020 WL 489573, at *3. Other courts in this district have expressly agreed with Bonilla “in refusing to deem the appellate waiver a bar to relief under these circumstances.” Negron, 520 F. Supp. 3d at 302; see Hernandez, 2021 WL 3426110, at * 4 (finding reasoning of Bonilla to be “persuasive”); United States v. Lewis, No. 10-CR-622 (ADS), 2020 WL 2797519, at *5 (E.D.N.Y. May 22, 2020) (same); see also Jacques, 2020 WL 5981655, at *4 (finding waiver unenforceable and citing Bonilla); McCarron, 2020 WL 2572197, at *4 (same). This Court finds the rationale set forth in Bonilla persuasive and adopts it herein. Accordingly, the plea waiver is unenforceable to bar Scalisi’s Davis challenge to the §924 conviction.⁷ II. Predicate Crimes for §924(c) Conviction Turning to the merits of Scalisi’s petition, the Government’s argument that conspiracy to commit Hobbs Act robbery is a crime of violence sufficient to support a §924(c) conviction has been clearly rejected. The Second Circuit, applying a categorical approach as directed by Davis, ruled that conspiracy to commit Hobbs Act robbery is not a crime of violence and cannot support a §924(c) charge. United States v. Barrett, 937 F.3d 126 (2d Cir. 2019). Under Davis and Barrett, the §924(c) conviction cannot stand upon the predicate conspiracy count to which Scalisi pled guilty. A valid predicate to a §924 conviction may also be found where a defendant, while pleading guilty to one crime, allocutes to the elements of a different crime that constitutes a crime of violence. See, e.g., Velasquez, 2022 WL 426166, at *4 (finding a §924(c) conviction was predicated on substantive Hobbs Act robbery, not the conspiracy count that was the subject of defendant’s plea). Upon a review of Scalisi’s allocution, the Court finds that while he may have arguably allocuted to the elements of Hobbs Act attempted robbery, the Supreme Court has recently declared that that crime is not a crime of violence and thus it cannot act as a predicate for §924 liability. See United States v. Taylor, __ U.S. __, 142 S. Ct. 2015 (2022). Absent a valid predicate crime, the §924 conviction cannot stand. CONCLUSION For all the foregoing reasons, the Petition, ECF No. 113, is GRANTED; Scalisi’s conviction and sentence on Count Three, the §924 count, are vacated. The Clerk of the Court is respectfully directed to (a) terminate ECF No. 125 as it is not a separate motion, and (b) close the related civil case, 16-CV-3233. SO ORDERED. Dated: August 25, 2022