Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Batista

United States District Court, W.D. Virginia, Harrisonburg Division

June 19, 2017



          Michael F Urbanski United States District Judge

         This matter is before the court on the resentencing of criminal defendant Hector Batista. On May 12, 2017, the court granted Batista's motion to vacate his sentence pursuant to 28 U.S.C. § 2255, and ordered that his case be set down for resentencing on May 31. ECF Nos. 112, 113. In preparation, Batista and counsel for the United States each submitted sentencing memoranda. ECF Nos. 116, 117.

         Batista has five felony convictions for first degree robbery under New York law. At the resentencing hearing, the government argued that the court should apply the 2016 version of the United States Sentencing Guidelines and find Batista to be a career offender pursuant to § 4B 1.1. Batista disagreed, and argued that he should not be considered a career offender under any version of the Guidelines, and that to hold him a career offender under the 2016 Guidelines would violate the ex post facto protections of the United States Constitution. For the reasons that follow, the court utilizes the 2016 version of the United States Sentencing Guidelines to find that Batista is a career offender within the meaning of § 4B1.1.


         Section 4B1.1(a) of the 2016 United States Sentencing Guidelines (the "Guidelines") provides for an enhanced guideline range where "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Section 4B1.2 defines "crime of violence" as follows:

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) Has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

         Prior to 2016, however, § 4B1.2(a)(2) (emphasis added), provided a more expansive definition of "crime of violence, " requiring only that the crime

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         This definition did not explicitly list murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, or, most pertinently, robbery. Instead, the pre-2016 version of § 4B1.2(a)(2) included the italicized text above, which is identical to the language in the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), declared unconstitutional by the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson II"[1]). The Court found that the italicized phrase, referred to as die "residual clause" of the ACCA, "denies fair notice to defendants and invites arbitrary enforcement by judges, " thus violating the Constitution's prohibition on vague criminal laws. Johnson II, 135 S.Ct. at 2557. Moreover, the court later held that its Johnson II decision applied retroactively on collateral review, providing the vehicle by which Batista successfully challenged his sentence. Welch v United States, 136 S.Ct. 1257 (2016).

         If the Supreme Court's treatment of the residual clause in the ACCA in Johson II and Welch applied to the identical language in the Sentencing Guidelines, this court could not find Batista to be a career offender under § 4B1.2(a)(2) of the pre-2016 Guidelines because, in those versions, robbery is not enumerated.[2] However, in Beckles v. United States, the Supreme Court clarified that the reasoning behind the Johnson II decision did not apply in the context of the Sentencing Guidelines, which "merely guide the exercise of a court's discretion, " rather than "fix[ing] the permissible range of sentences, " like the ACCA. 137 S.Ct. 886, 892 (2017). "Accordingly, " the Court held, "the [Sentencing] Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness." Id.

         Pursuant to Beckles, the Court of Appeals for the Fourth Circuit recently upheld a defendant's sentencing enhancement under the residual clause of § 4B1.2(a)(2). United States v. Riley, 856 F.3d 326, 329 (4th Cir. 2017) ("Despite Johnson [II] then, the residual clause of the career offender guideline remains valid."); see United States v. Mack, 855 F.3d 581, 583 (4th Cir., 2017) ("Based on Beckles, we now reject Mack's vagueness challenge to § 4B1.2(a)."). In Riley, the court considered whether Maryland simple robbery-entailing "the carrying away of another's property Trom his person or in his presence ... by violence or putting in fear'"- categorically falls within the residual clause of § 4B 1.2(a)(2). 856 F.3d at 329 (ellipsis in original) (quoting Conyers v. State, 693 A.2d 781, 796 (Md.Ct.App. 1997)). The court relied on the commentary to § 4B1.2, which "expressly include[d] robbery in a list of offenses that qualify as crimes of violence. Id. (citing § 4B1.2, cmt. n. 1).

These [listed] offenses "serve as additional enumerated offenses, or 'example crimes, ' to be considered when determining whether a prior conviction" falls within the residual clause. United States v. Mobley, 687 F.3d 625, 629 (4th Cir. 2012); see also United States v. Peterson, 629 F.3d 432, 438 (4th Cir. 2011) ("[T]he commentary to § 4B1.2(a)(2) adds to the list of example crimes listed in § 4B1.2(a)(2) an additional six crimes of violence under the Guidelines . . . ."). Robbery, then, is a paradigmatic example of a crime' presenting "a serious ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.