Opinion
20-CR-200 (JLS)
2022-07-15
UNITED STATES of America, v. Julien JOHNSON, Defendant.
Charles E. Watkins, Michael Jason Adler, Government Attorney, United States Attorney's Office, Buffalo, NY, for United States of America. Thomas J. Eoannou, Buffalo, NY, for Defendant.
Charles E. Watkins, Michael Jason Adler, Government Attorney, United States Attorney's Office, Buffalo, NY, for United States of America.
Thomas J. Eoannou, Buffalo, NY, for Defendant.
DECISION AND ORDER
JOHN L. SINATRA, JR., UNITED STATES DISTRICT JUDGE
Defendant Julien Johnson moved "to withdraw the guilty plea and the plea agreement entered into on January 27, 2021." Dkt. 49. For the reasons below, the Court denies Johnson's motion.
BACKGROUND
The Government initially charged Johnson in a criminal complaint with possession with intent to distribute heroin/fentanyl and methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Dkt. 1.
On January 27, 2021, Johnson waived indictment and pled guilty to a one-count information charging him with possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Dkt. 21; Dkt. 22; Dkt. 25. The information also alleged that, before he committed the crime charged, Johnson "had a final conviction for a serious violent felony, that is, a violation of New York Penal Law § 160.05, for which [he] served more than 12 months of imprisonment." Dkt. 22.
The information included an allegation regarding forfeiture of currency, which is not at issue on this motion. See id.
Johnson pled guilty pursuant to a plea agreement with the Government, which set forth the terms and conditions of his guilty plea. See Dkt. 24. The plea agreement indicated that Johnson understood the Government would "file an information pursuant to Title 21, United States Code, Section 851 alleging [his] prior serious violent felony conviction of robbery third degree, in violation of New York State Penal Law § 160.05, as the basis for the enhanced penalties provided for in Title 21, United States Code, Section 841(b)(1)(A)." Id. ¶ 2. Johnson agreed to "admit that [he] has a prior serious violent felony conviction [that] subjects [him] to the enhanced penalties in Title 21, United States Code, Section 841(b)(1)(A)." Id. The Government filed the Section 851 information, as it agreed to do in the plea agreement. Dkt. 23.
The Government also agreed that it would not include in the Section 851 information an allegation related to Johnson's prior conviction for a serious drug felony. Id.
The plea agreement stated that the maximum possible sentence for the offense included a fifteen-year mandatory minimum term of imprisonment, consistent with the enhanced penalty that resulted from the Section 851 information. Dkt. 24 ¶ 1; see 21 U.S.C. § 841(b)(1)(A)(viii). Directly above the signature block containing the signatures of Johnson and his attorney, Johnson acknowledged that he: (1) "read th[e] agreement, which consists of pages 1 through 11"; (2) "had a full opportunity to discuss th[e] agreement with [his] attorney"; (3) "underst[ood] all of the consequences of [his] plea of guilty"; (4) "fully agree[d] with the contents of th[e] agreement"; and (5) "sign[ed] the agreement voluntarily and of [his] own free will." Dkt. 24, at 11.
After conducting the plea colloquy, where it confirmed these items, the Court accepted Johnson's guilty plea and deferred acceptance of the plea agreement. See Dkt. 25. The Court heard argument from the parties regarding Johnson's release status pending sentencing and released Johnson on conditions, after finding that exceptional reasons existed for his release under 18 U.S.C. § 3145(c). See id.
A warrant for Johnson's arrest issued on April 28, 2021, based on the allegation that Johnson cut off his ankle monitor and absconded from supervision. See Dkt. 29. At the initial appearance on the violation, the Court remanded Johnson to the custody of the United States Marshals Service pending a hearing to determine whether exceptional reasons existed to justify his release pending sentencing. See Dkt. 31. The Court heard argument regarding exceptional reasons a few days later and ordered Johnson detained pending sentencing under 18 U.S.C. § 3143(a). See Dkt. 32.
At a June 8, 2021 status conference, the Court set Johnson's sentencing for December 7, 2021. See Dkt. 34. On October 21, 2021, Johnson's Presentence Investigation Report was released to the parties. Dkt. 37. Johnson moved to adjourn sentencing on October 25, 2021, stating that he had "filed a § 44.10 motion in State Court." Dkt. 38 ¶ 3. The Court granted Johnson's motion and reset sentencing for March 18, 2022. Dkt. 39.
The Court originally set this status conference for May 27, 2021, but rescheduled it to June 8 when Johnson refused transport to court for the appearance and counsel could not obtain a waiver of his appearance.
On March 8, 2021, Johnson again moved to adjourn sentencing, this time because he was "trying to withdraw his plea." Dkt. 46 ¶ 3. On May 12, 2022, Johnson moved to withdraw his guilty plea, and to withdraw from the plea agreement. Dkt. 49. The Government opposed Johnson's motion. Dkt. 51. Johnson did not reply. Sentencing currently is scheduled for September 21, 2022. Dkt. 53.
DISCUSSION
Johnson seeks to withdraw his guilty plea because, he claims, "[t]he Government erred ... in ... classif[ying] the prior Robbery 3rd conviction as a serious violent felony." Dkt. 49 ¶ 5. Specifically, he argues that his prior third-degree robbery conviction "does not fall within the criteria for a violent felony offense [under 18 U.S.C. § 3559(c)(2)(F) ]" because his robbery conviction (1) "was not a bank robbery," (2) "was not committed within special maritime jurisdiction," and, alternatively, (3) "is beneath the 10-year maximum penalty threshold contemplated by [ Section] 3559." Id. ¶¶ 7, 8.
As a result, Johnson asserts that "the plea agreement contains a factual falsehood" that he "relied on," and "[b]ut for the representation that he was facing the same mandatory sentence if convicted after trial, [he] would not have agreed to the plea agreement containing the provision." Id. ¶¶ 8, 11. Johnson also argues that this "fundamental misrepresentation of the consequences of [the] plea agreement made to [him] ... substantially interfered with [his] Constitutional right to trial because the information he based his decision on when waiving that right was inaccurate." Dkt. 49 ¶ 13. He therefore seeks to withdraw his plea, so he can "either renegotiate his plea or have this case proceed to trial." Id. at 8.
Although he does not cite it as a basis for withdrawing his plea, the Court notes that Johnson's Presentence Investigation Report calculates a higher sentence than contemplated by the parties’ plea agreement. Compare Dkt. 24 with Dkt. 37. To the extent that this divergence in sentencing exposure motivates Johnson's motion, it does not support withdrawal. See United States v. Gonzalez , 970 F.2d 1095, 1100 (2d Cir. 1992) (a defendant who "has a change of heart prompted by his reevaluation of ... the penalty that might be imposed [does not present] a sufficient reason to permit withdrawal of a plea"); see also United States v. Goodman , 165 F.3d 169, 173–74 (2d Cir. 1999) (affirming district court's denial of motion to withdraw plea where the defendant argued she "faced a sentence of incarceration significantly longer than the sentence she anticipated when she entered into the plea agreement").
The Government argues that the Court should deny Johnson's motion because the motion rests on an incorrect legal premise—specifically, because Johnson's prior conviction for robbery in the third degree is a serious violent felony that subjects him to enhanced punishment under Section 841(b)(1)(A). See Dkt. 51, at 4. In addition, the Government argues that Johnson has another prior conviction—a 2014 conviction for criminal sale of a controlled substance in the third degree—that also qualifies as a predicate for an enhanced sentence under Section 841(b)(1)(A). See Dkt. 51, at 6–7.
Presumably, the Government here addresses what could have occurred if Johnson had proceeded to trial because, in the plea agreement, it explicitly agreed not to file a Section 851 information regarding a prior serious drug felony. See Dkt. 24 ¶ 2.
I. STANDARD TO WITHDRAW A GUILTY PLEA
Johnson asks to withdraw his guilty plea and to withdraw from the plea agreement—both entered on January 27, 2021.
A slightly different standard applies when a defendant seeks to withdraw from a plea agreement but not to withdraw his guilty plea. See United States v. Lopez , 385 F.3d 245 (2d Cir. 2004) (borrowing Rule 11(d)’s "fair and just reason" standard but instructing district courts to (1) "ask whether there is credible evidence that the defendant did not freely and voluntarily enter into the plea agreement, either because he was coerced or improperly induced to accept its terms, or because he misunderstood them," and to (2) "determine the extent of any prejudice likely to be suffered by the Government"). Because it is clear that Johnson seeks to withdraw both his guilty plea and from the plea agreement, the Court need not apply that standard here. See, e.g. , Dkt. 49, at 3 (Johnson "moves ... to withdraw the guilty plea and plea agreement").
Rule 11(d) allows a defendant to withdraw a guilty plea, after a court accepts the plea but before sentencing, for "any fair and just reason." Fed. R. Crim. P. 11(d)(1), (d)(2)(B). The defendant bears the burden of showing that such a reason exists. See United States v. Hirsch , 239 F.3d 221, 225 (2d Cir. 2001) ; United States v. Maher , 108 F.3d 1513, 1529 (2d Cir. 1997). Whatever the basis for a defendant's motion, "the standard for withdrawing a guilty plea is stringent." United States v. Gonzalez , 647 F.3d 41, 57 (2d Cir. 2011) (citation omitted).
Whether to allow a defendant to withdraw a guilty plea generally is committed to the district court's discretion. United States v. Arteca , 411 F.3d 315, 320 (2d Cir. 2005). Courts consider the following factors:
(1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just); and (3) whether the government would be prejudiced by a withdrawal of the plea.
United States v. Schmidt , 373 F.3d 100, 102–03 (2d Cir. 2004). Courts must consider prejudice to the government "only if the defendant has set forth sufficient grounds to withdraw the plea." Hirsch , 239 F.3d at 225. In addition to the above factors, courts may consider whether the defendant "has raised a significant question about the voluntariness of the original plea." Schmidt , 373 F.3d at 103.
When a defendant seeks to withdraw a guilty plea based on "newly disclosed Government information, ‘evidence is considered material where there is a reasonable probability that but for the failure to produce such information, the defendant would not have entered the plea but instead would have insisted on going to trial.’ " United States v. Persico , 164 F.3d 796, 804–05 (2d Cir. 1999) (quoting United States v. Avellino , 136 F.3d 249, 256 (2d Cir. 1998) ) (internal quotation marks and citation omitted). This standard is objective and involves "an inquiry into the likely persuasiveness of the undisclosed information." Id. at 805. II. "SERIOUS VIOLENT FELONY" UNDER 21 U.S.C. §§ 841(b)(1)(A) AND 851 AND 18 U.S.C. § 3559(c)(2)
Johnson's motion rests on the interpretation and application of "serious violent felony," as used in the Controlled Substances Act. That phrase is defined through various provisions of the United States Code, and caselaw guides the analysis of whether Johnson's conviction under New York law for third-degree robbery meets that definition.
"Serious violent felony" first appears in 21 U.S.C. § 841(b)(1)(A)(viii), which states that, as relevant here, a person convicted of possession with intent to distribute 50 grams or more of methamphetamine "after a conviction for a ... serious violent felony becomes final ... shall be sentenced to a term of imprisonment of not less than 15 years ...." As relevant here, the phrase is defined earlier in the Controlled Substances Act as "an offense described in [ 18 U.S.C. § 3559(c)(2) ] for which the offender served a term of imprisonment of more than 12 months." 21 U.S.C. § 802(58)(A).
Section 3559(c)(2), in turn, defines "serious violent felony" two different ways. First, a "serious violent felony" is "a Federal or State offense, by whatever designation and wherever committed, consisting of ... robbery (as described in Section 2111, 2113, or 2118)." 18 U.S.C. § 3559(c)(2)(F)(i) (emphasis added). Alternatively, a "serious violent felony" is:
Section 3559 provides an escape hatch for defendants with robbery convictions and states that robbery "shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that ... no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense[,] and ... the offense did not result in death or serious bodily injury ... to any person." 18 U.S.C. § 3559(c)(3)(A). Because Johnson neither cites this provision nor presents any fact or argument that his third-degree robbery conviction meets these criteria, the Court will not address the issue further.
any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.
18 U.S.C. § 3559(c)(2)(F)(ii).
Focusing on the first definition of "serious violent felony," which enumerates exemplar robbery offenses, Section 2111 provides: "Whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value, shall be [guilty of a crime]." 18 U.S.C. § 2111. Section 2113 proscribes bank robbery and related offenses. See 18 U.S.C. § 2113. And Section 2118 covers robberies and burglaries involving controlled substances. See 18 U.S.C. § 2118.
The Second Circuit has considered whether certain robbery convictions under New York law are serious violent felonies under Section 3559(c)(2)(F)(i). See United States v. Snype , 441 F.3d 119 (2d Cir. 2006). In Snype , the court first noted that, "[u]nder New York law, ‘[r]obbery is forcible stealing,’ committed when a person ‘uses or threatens the immediate use of physical force’ to take property belonging to another.’ " Id. at 144 (quoting N.Y. PENAL LAW § 160.00 ). It then concluded: "Because these state statutory elements parallel those required to establish robbery under 18 U.S.C. §§ 2111, 2113(a), and 2118, there can be no question that New York State convictions for first and second degree robbery by definition qualify as serious violent felonies under § 3559(c)(2)(F)(i)." Id.
The Second Circuit does not appear to have considered whether a New York state conviction for third-degree robbery qualifies under Section 3559(c)(2)(F)(i), but the Fourth Circuit has. See United States v. Johnson , 915 F.3d 223, 227 (4th Cir. 2019). The Johnson court recognized that "[i]n New York, ‘[t]he essence of the crime of robbery is forcible stealing." Id. at 230 (quoting People v. Miller , 87 N.Y.2d 211, 638 N.Y.S.2d 577, 661 N.E.2d 1358, 1360 (1995) ). A person is guilty of robbery in the third degree, specifically, "when he forcibly steals property." Id. (quoting N.Y. PENAL LAW § 160.05 ) (internal quotation marks omitted). After completing the required categorical analysis, the Fourth Circuit "agree[d] with the Second Circuit that New York robbery matches robbery as used in § 3559(c)," and held that its "conclusion [was] no less true for [a] third-degree robbery conviction, as the core crime of New York robbery, irrespective of degree, is defined as forcibly stealing property." Id. at 231 (internal quotation marks and citation omitted); see also United States v. Moore , 916 F.3d 231, 240–41 (2d Cir. 2019) ("Distilled to its basic elements, third-degree robbery in New York requires the use or threat of immediate physical force upon another in furtherance of a larceny.").
III. JOHNSON MAY NOT WITHDRAW HIS GUILTY PLEA
Johnson seeks to withdraw his guilty plea and to withdraw from the plea agreement because, in his view, his New York conviction for third-degree robbery is not a serious violent felony. He is wrong, as explained below. Because that conviction is a serious violent felony, Johnson has not sustained his burden of showing that a "fair and just reason" exists to withdraw his plea.
The Court will begin with the factors outlined in Schmidt. First, Johnson does not assert his innocence. He bases his motion not on the substantive crime—possession of 50 grams or more of methamphetamine with intent to distribute—but on a prior robbery conviction. Nothing in his motion indicates that he believes he is innocent; in fact, he suggests that, if permitted to withdraw his plea, he still might plead guilty. See Dkt. 49, at 8 (asking to "vacate his plea and allow him to ... renegotiate his plea"). Second, significant time passed between Johnson's guilty plea and his motion to withdraw. He pled guilty on January 27, 2021, and moved to withdraw his plea on May 12, 2022—more than a year later, and after he was detained pending sentencing and his Presentence Investigation Report was filed.
Before considering the final factor of prejudice to the Government, the Court will consider whether Johnson established a significant question about the voluntariness of his plea. Johnson appears to base his motion on this consideration—specifically, arguing that his guilty plea was not voluntary because he entered the plea on the purportedly false basis that his prior New York third-degree robbery conviction was not a serious violent felony that subjects him to the enhanced penalties under Section 841(b)(1)(A). But, as the Second and Fourth Circuit's decisions make clear, his conviction is a serious violent felony because it parallels the enumerated offenses in 18 U.S.C. § 3559(c)(2)(F)(i). See Johnson , 915 F.3d at 231 ; Snype , 441 F.3d at 144.
Johnson appears to suggest that his third-degree robbery conviction does not meet the Section 3559(c)(2)(F)(i) criteria because it does not meet the elements of Section 2111 robbery. In particular, he argues that his "offense was not committed within the special maritime jurisdiction." Dkt. 49 ¶ 7. The Fourth Circuit considered and rejected an identical challenge in Johnson . See Johnson , 915 F.3d at 232–33 (rejecting argument that "New York robbery is distinct from the federal robbery offenses because it need not occur in the special maritime or territorial jurisdiction of the United States" because those "jurisdictional elements are not essential to robbery in § 3559(c)"). In other words, Section 2111, 2113, and 2118 robberies are descriptors of the types of robberies that qualify as serious violent felonies under Section 3559(c)(2)(F)(i). This Court agrees.
Johnson also argues that his third-degree robbery conviction does not meet the criteria for "any other offense" under Section 3559(c)(2)(F)(ii). See Dkt. 49 ¶ 7 (arguing that his conviction is a felony "for which the maximum term of imprisonment is seven ... years[,]" which "is beneath the 10-year maximum penalty threshold contemplated by § 3559"). But whether his conviction falls under this alternate definition of serious violent felony is immaterial because, as explained above, it is an enumerated offense under Section 3559(c)(2)(F)(i).
Because Johnson's prior conviction for third-degree robbery under New York law meets the Section 3559(c)(2)(F)(i) criteria, it is—as his plea agreement and the Section 851 information filed by the Government contemplated—a serious violent felony that subjects him to the enhanced penalties of Section 841(b)(1)(A). Absent a "factual falsehood," Johnson established no serious question about the voluntariness of his guilty plea.
The Court need not consider the final Schmidt factor—the prejudice to the Government—because Johnson did not set forth valid grounds to withdraw his plea. See Hirsch , 239 F.3d at 225.
In sum, Johnson does not demonstrate a fair and just reason to withdraw his plea under Rule 11(d)(2)(B).
CONCLUSION
For these reasons, the Court DENIES Johnson's motion to withdraw his guilty plea and to withdraw from the plea agreement (Dkt. 49). Sentencing remains scheduled for September 21, 2022, at 3:00 p.m.