November 20, 2018
This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Jack B. Weinstein imposed a sentence of time served, well under the Guidelines range, in a narcotics case where defendant would be deported on completing his term of incarceration. Chief Judge Dora L. Irizzary granted a §2255 petition where, under recent Supreme Court rulings, petitioner's prior offenses did not support a sentencing enhancement under the Armed Career Criminal Act. Judge Margo K. Brodie dismissed a §1983 suit against a state agency for lack of subject matter jurisdiction and lack of ripeness. And Judge Joseph F. Bianco affirmed a bankruptcy court's decision to abstain from an adversary proceeding.
Sentencing and Deportation
In United States v. Eiflaar, 16 CR 636 (June 12, 2017), Judge Weinstein emphasized the harsh consequences of deportation in sentencing defendant to six-months' time served following his guilty plea to a cocaine offense.
Defendant, 26, is a Dutch citizen born in Suriname. In January 2017 he pled guilty to one count of importing cocaine and one count of possessing it with intent to distribute. In June he was sentenced to time served and supervised release for three years. Defendant faced prompt deportation upon his release from custody.
On Nov. 26, 2016, defendant had traveled to John F. Kennedy Airport in Queens. On his arrival he was selected for a Customs and Border Protection examination, resulting in his consent to an X-ray of his gastrointestinal tract. After his arrest, he passed 100 cocaine-filled pellets.
His sentencing range under the advisory Guidelines was 18 to 24 months.
In the Statement of Reasons for the sentence, 18 U.S.C. §3553(a), Weinstein said the short imprisonment is "consistent with my policy of deporting defendants with no criminal record as quickly as possible."
As the court noted, defendant was raised in a stable family. At age 20, he moved in with his girlfriend. They now have young children. The first-born child suffers from asthma and defendant had to pay the medical expenses out-of-pocket. To meet these expenses, he dropped out of high-school before graduation. Since 2010 he worked at a factory in Suriname during the day while driving a taxi at night.
Defendant has shown remorse for his conduct and provided information to the government about the offense. "The cost to taxpayers to imprison defendant is approximately $32,000 annually." Slip op. 5.
Considering the "grave hardships" of deportation, the core purposes of sentencing and the need for consistent sentencing criteria, Weinstein found that minimal prison time with prompt deportation was warranted.
Enhancement Not Warranted
In Grant v. United States, 6 CR 732, 15 CV 7151 (E.D.N.Y., July 10, 2017), Chief Judge Irizarry, granting collateral relief pursuant to 28 U.S.C. §2255, vacated petitioner's 2009 sentence in light of developments in the law relating to sentencing enhancements under the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e).
In 2008, petitioner pled guilty to possessing firearms after a prior felony conviction. In 2009, having been found an "armed career criminal" under the ACCA based on three prior violent felony convictions, he received an enhanced sentence of 180 months' imprisonment.
The U.S. Supreme Court subsequently issued two rulings that petitioner relied on in challenging his sentence. First, it held that only prior crimes involving "'strong physical force'" or "'force strong enough to constitute power'" could qualify as prior violent felonies under §924(e)(1)(i) so as to support an "armed career criminal" enhancement. Slip op. 3, quoting Johnson v. United States, 559 U.S. 133, 140-42 (2010). Second, it struck as unconstitutionally vague language in ACCA's §924(e)(1)(ii) defining a "violent felony" to include a crime punishable by a term exceeding one year that "involves conduct that presents a serious potential risk of physical injury to another." Slip op. 3-4, quoting Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015) (quotation from statute).
In reviewing the three predicate offenses that supported petitioner's enhancement, Irizarry followed Shepard v. United States, 544 U.S. 13 (2005), which generally authorizes recourse only to "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms." Slip op. 7, quoting Shepard, 544 U.S. at 16.
The government failed to show that petitioner's prior conviction for second degree assault under §120.05 of the New York Penal Law qualified to support enhancement under §924(e). The government did not dispute that §120.05 was a "divisible statute"-that is, one that allows for conviction on various grounds, only some of which would meet the "strong force" requirement-and it failed to provide documentation to support its assertion that petitioner's conviction met that requirement. Slip op. 6-12.
Petitioner's prior South Carolina conviction for second degree burglary (S.C. Code Ann. 16-11-312) similarly failed to support a sentence enhancement under 18 U.S.C. §924(e). The South Carolina statute was also "divisible," and the government again put in no evidence as to the specific grounds for petitioner's conviction. Irizarry rejected the government's reliance on Taylor v. United States, 495 U.S. 575, 599 (2d Cir. 1990), for the proposition that "generic burglary" qualifies as an enumerated ACCA offense supporting enhancement. United States v. Lynch, 518 F.3d 164 (2d Cir. 2008), held that a burglary statute went beyond the scope of "generic burglary," and did not qualify as an enumerated ACCA offense, where it defined burglary to include unauthorized entry into a vehicle or watercraft, in addition to a building, in order to commit a crime. This precluded treating S.C. Code Ann. 16-11-312 as an enumerated ACCA offense, because it defined "building" to include vehicles, watercraft or aircraft. Slip op. 13-14.
Petitioner's prior conviction for the common law South Carolina offense of "strong armed robbery" satisfied the "strong force" element and qualified as a predicate under 18 U.S.C. §924(e). However, as three prior qualifying convictions were required to support enhancement, petitioner had to be resentenced. Slip op. 14-15.
Suits From State Proceedings
In two recent cases, Hensler v. New York State Department of Environmental Conservation, 16 CV 3445 (June 14, 2017), and Osuji v. Federal National Mortgage Association, 16 CV 5018 (July 17, 2017), Judge Brodie and Judge Bianco rejected challenges to state proceedings (1) for lack of subject matter jurisdiction ( Hensler) and (2) under the doctrine of abstention ( Osuji).
In Hensler, plaintiffs sought damages plus declaratory relief under 42 U.S.C. §1983, after the New York State Department of Environmental Conservation (DEC) denied an application for a permit to construct a building on their Staten Island property. Plaintiffs claimed that defendants had violated their Fifth Amendment rights by "engaging in a regulatory taking of private property without just compensation."
As to the claim for damages, there was no subject matter jurisdiction because states, state agencies and state officials acting in their official capacity have sovereign immunity, under the Eleventh Amendment, absent the state's consent to suit or an express or statutory waiver of immunity. Slip op. 5. The state never consented to suit or waived immunity here.
Brodie also found that plaintiffs' claims for declaratory relief were not ripe. The DEC decision on plaintiffs' application was not final because plaintiffs had not appealed the denial of the application or requested a hearing, and had not shown that an appeal would have been futile.In Osuji, a bankruptcy appeal, Bianco affirmed the Bankruptcy Court's decision to abstain from an adversary proceeding. Appellant-debtor Samuel Osuji had unsuccessfully tried to intervene in a state court foreclosure proceeding against Christine Phillips-Osuji relating to a mortgage on property in Hempstead, New York. Mrs. Osuji had consented to the entry of a judgment of foreclosure. After the foreclosure order was issued, Mr. Osuji filed a Chapter 7 bankruptcy case and an adversary proceeding against Federal National Mortgage Association and JP Morgan Chase Bank, N.A., alleging that they had no ownership interest in the foreclosed loan. The bankruptcy court issued an Order to Show Cause why it should not abstain from the proceeding.
The bankruptcy court, exercising its discretion, voluntarily abstained from the adversary proceeding, and the district court affirmed, based on several factors. First, New York state property law issues predominated over federal law issues. In fact, no federal law issues were raised. Second, a closely-related state court proceeding had addressed the same issues Mr. Osuji raised in federal court. Third, the only basis for bankruptcy court jurisdiction was 28 U.S.C. §1334(b), which provides for original but not exclusive jurisdiction for cases "arising in or related to" bankruptcy cases. Fourth, the adversary proceeding would place a burden on the bankruptcy court docket. Fifth, the adversary proceeding clearly represented forum shopping for a more favorable outcome.
Mr. Osuji's contention that abstention was not warranted because there was no ongoing related case between the parties in state court was not persuasive here, where all his efforts in state court had been rejected.
Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan.