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Tavera v. United States

United States District Court, S.D. Florida

June 14, 2018

ALEX KEVIN TAVERA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER'S MOTION TO VACATE

          JEMES LAWRENCE KING UNIITED STATES DISTRICT JUDGE.

         This 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 l).[1] 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.

         A. Relevant Procedural and Factual Background

         On 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.

         A PSI 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).[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 incarceration.

         On June 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" (Id.).[3]

         After 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.

         B. Findings of Fact and Conclusions of Law

         After 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.

         In his 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"[4] Leocal, 125 S.Ct. at 381 (emphasis added).

         Florida 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.[5]

         Similarly, 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, recklessly.

         Ariz. 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 1336.

         In its 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 ...


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