United States District Court, S.D. Florida
ORDER DENYING PETITIONER'S MOTION TO
LAWRENCE KING UNIITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Alex Kevin
Tavera's ("Petitioner") Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody ("Motion") (DE
The Court has reviewed the Motion, the Government's
Response, the Magistrate's Report and Recommendation (DE
20), the government's objections to the same, and all
relevant corresponding attachments and transcripts. For the
following reasons, the Court disagrees with the Report and
Recommendation and hereby DENIES Petitioner's Motion.
Relevant Procedural and Factual Background
January 21, 2010, Petitioner pleaded guilty to one count of
conspiracy to commit Hobbs Act robbery, in violation of 18
U.S.C. §1951(a), and two counts of being a felon in
possession of firearms and ammunition in violation of 18
U.S.C. §922(g)(1). (DE 6 at 1). The remaining counts
alleged in the Indictment against the Petitioner, Hobbs Act
robbery, in violation of 18 U.S.C. §1951(b)(1) and
(b)(3) (Count 2) and carrying a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§924(c)(1)(A) (Count 3), were dismissed pursuant to a
written plea agreement between the Movant and the United
States (See CRDE 46). As part of his written plea
agreement with the United States, Petitioner agreed to
jointly recommend that a sentence of 235 months'
incarceration be imposed either through a departure or
variance notwithstanding any possible improper calculation of
the Sentencing Guidelines.
was prepared in anticipation of sentencing (CRDE 6).
Petitioner's base offense level was 20, plus ten levels
for various specific offense characteristics, resulting in an
adjusted offense level of 30 (Id.). The PSI
designated the Petitioner to be an Armed Career Criminal
based upon three prior violent felony convictions, which
enhanced the Petitioner's offense level to 34 (CRDE 6 at
2).At the Petitioner's sentencing hearing
held on April 8, 2010, pursuant to the written terms of the
plea agreement, the parties jointly recommended a guideline
sentence of 235 months. At sentencing, the parties cited the
seriousness of the instant offense; the Petitioner's
extensive criminal history involving numerous armed
robberies; and the benefit conferred upon the Petitioner by
the government's agreement to dismiss more serious
charges (Count 3) that would have resulted in a mandatory
consecutive sentence of twenty-five years (See Sent.
Trans., Ex. B, attached, at 4-8). In addition to not
challenging any facts associated with his prior convictions,
the Petitioner did not raise any argument related to
the constitutionality of § 924(e) or whether any of his
prior convictions supporting the enhancement qualified as a
"violent felony" under § 924(e)(2)(B). This
Court followed the parties' recommendation and sentenced
the Petitioner within the Guidelines to 235 months' of
24, 2016, Movant filed the instant § 2255 motion (DE 1).
In it, he argues in sum, that his convictions for New York
robbery in the first degree and federal Hobbs Act robbery are
not violent felonies pursuant to 18 U.S.C. § 924
(e)(1)(B)(i) because both crimes "can be committed
without actual or threatened violent force, but instead by
merely placing another in fear of injury to person or
property" (Id. at 13), and that "injury
may be inflicted - both on property and on a person
-without any physical force at all, let alone the violent
physical force required under the Elements Clause"
the parties concluded briefing on the relevant issues the
Magistrate Judge, on June 26, 2017 issued its R&R (DE:
20). The Magistrate Judge declared that two of the
Petitioner's prior felony convictions for New York murder
in the second degree and brandishing a firearm during and in
relation to a crime of violence qualify as violent felonies
under ACCA. However, the Magistrate Court reasoned that the
Petitioner's third ACCA-qualifying conviction for New
York robbery in the first degree with serious physical injury
is not a violent felony under ACCA because, it reasoned,
robbery with serious physical injury could be committed
negligently or accidentally (DE 20 at p. 15-16). The
Magistrate Judge thus recommended that the Petitioner's
235-month sentence imposed by this Court be vacated. The
government objected to the Magistrate's analysis and
ultimate holding, arguing that the Petitioner's prior
conviction for New York robbery in the first degree qualifies
as a violent felony under the ACCA.
Findings of Fact and Conclusions of Law
reviewing of the record relevant to Petitioner's motion
as well as the government's response, the Magistrate
R&R, and the government's objection thereto, this
Court finds that New York first-degree robbery is a violent
felony as defined by 18 U.S.C. § 924(e)(2)(B)(i) (a
crime punishable by imprisonment of more than one year that
"has as an element the use, attempted use, or threatened
use of physical force against the person of another.")
Id. Thus, the Petitioner has three qualifying
violent felony convictions as defined by ACCA.
R&R, the Magistrate Judge looked to Leocal v.
Ashcroft, 125 S.Ct. 377 (2004) and United States v.
Palomino-Garcia, 606 F.3d 1317 (11th Cir.
2010) as authority to disqualify the Petitioner's New
York first-degree robbery conviction as a violent felony as
defined by ACCA. The Magistrate Judge's reliance on these
decisions is misplaced. In Leocal the Supreme Court
analyzed whether a Florida felony DU1 by nature of it causing
serious bodily injury was a "crime of violence" as
defined by 18 U.S.C. § 16, a statute with nearly
identical wording to ACCA's force clause (18 U.S.C.
§ 924(e)(2)(B)(i)). A "crime of violence" is
defined by Congress in 18 U.S.C. § 16(a) as "an
offense that has as an element the use ... of
physical force against the person or property of
another" Leocal, 125 S.Ct. at 381
Stat. §316.193(3)(c)(2) makes it a third degree felony
for a person to operate a vehicle while under the influence
and, "by reason of such operation, caus[e] . . .
[s]erious bodily injury to another." Id. The
Court noted that the Florida DU1 statute required proof of
causation of the injury but it did not require proof of any
particular mental state. Id. (citing State v.
Hubbard, 751 So.2d 552, 562-564 (Fla. 1999)). In
excising DU1 crimes from the definition of crime[s] of
violence, the Court emphasized as a critical aspect, that
"a crime of violence is one involving the 'use ...
of physical force against the person or property of
another.'" (Leocal, 125 S.Ct. at 382. The Court
added that "use" as contained in the definition of
crime of violence "requires active employment."
Id. (citing Bailey v. United States, 516
U.S. 137 (1995)). The Court ultimately held that the use of
physical force required in connection with deeming a felony
conviction a "crime of violence" was force that was
intentionally used as opposed to negligently or accidentally
used. Leocal, 125 S.Ct. at 382.
in Palomino-Garcia, the Eleventh Circuit declined to
hold that a felony aggravated assault conviction in Arizona
qualifies as a crime of violence under both the enumerated
offenses provision § 2L1.2(b)(l)(A)(ii) (Nov. 2007) of
the United States Sentencing Guidelines ("USSG"),
and the force provision of the USSG (§2L1.2). The USSG
provides for enhancements where a defendant has conviction[s]
for crime[s] of violence. Palomino-Garcia, 606 F.3d
at 1326. The Court held that aggravated assault in Arizona is
not a "crime of violence" as defined by the
USSG's force provision because it can be committed with a
less than intentional mental state, in this case,
Stat. § 13-1204(A)(7) "provides that a person
commits felony aggravated assault if he assaults someone (as
defined by Arizona law) while he is in the custody of a law
enforcement agency and has reason to know that the victim of
the assault is an employee of that agency acting in an
official capacity." Id. at 1325. Assault as
defined by Arizona law is "[i]ntentionally, knowingly or
recklessly causing any physical injury to another
person." Id. (citing Ariz. Stat. §
13-1203(A)(1)) (emphasis added). The Court noted that Arizona
law defines recklessness as nothing more than the conscious
disregard of a substantial and unjustifiable risk,
see Ariz. Stat. § 13-105(c) (1995), this is
more akin to negligence and cannot be said to require
intentional use of force . . ." Id.
Relying on the analysis contained in Leocal, along
with similar decisions out of several sister circuits,
Palomino-Garcia held that "a conviction
predicated on a mens rea of recklessness does not
satisfy the 'use of physical force' requirement under
§ 2Ll.2's definition of 'crime of
violence.'" Palomino-Gar cia, 606 F.3d at
objection to the R&R, the government argues that New York
first-degree robbery is not like aggravated DUI and
aggravated assault because first-degree robbery cannot be
committed accidentally or negligently. Rather, the government
argues, robbery in New York requires the specific mental
state to "forcibly steal [the] property" of
another. N.Y. Penal Law § 160.15(01). Thus, the use of
force is an essential element of the offense. As the
government points out, courts in New York that have analyzed
the issue have held that there is no additional mental state
requirement beyond "forcibly stealing" for a
robbery to become one in the first-degree. All that is
required is a showing that one of the four aggravating
factors contained the statute occurred along with the
robbery. See Stuckey v. United States, Case No.
16-cv-01787-JPO (S.D.N.Y. December 1, 2016) (citing
People v. Gage,687 N.Y.S.2d 202, 204 (App. Div.
3rd Dep't 1999). New York robbery, therefore,
is clearly distinguishable from aggravated DUI and assault
because one cannot commit robbery within the meaning of New
York law without employing specific intent. This Court agrees
that "force" in the context of New York's