CHRISTINA REISS, Chief District Judge.
This matter came before the court on Defendant Edward J. Marosz's appeal of the Magistrate Judge's Order staying the proceeding (Doc. 39) and on his motion to correct his sentence under 28 U.S.C. § 2255. (Doc. 30.) Mr. Marosz asks the court to lift the stay imposed by the Magistrate Judge, withdraw the reference, and grant him a reduction in his sentence. He argues that his Sentencing Guideline range was calculated with reference to a "crime of violence" residual clause identical to that struck down under Johnson v. United States, 135 S.Ct. 2551 (2015) which held that the Armed Career Criminal Act's (the "ACCA") residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally void for vagueness because its application "does not comport with the Constitution's guarantee of due process." Johnson, 135 S. Ct. at 2560. Mr. Marosz's anticipated release date from incarceration is November 25, 2016. He asserts that, in the absence of expedited treatment of his motion, he will be deprived of meaningful relief.
The government opposes the motion, arguing that the court is not required to lift the stay, that it is unclear whether Mr. Marosz is entitled to his requested relief, and that lifting the stay will require an unwarranted expenditure of resources by the parties and the federal judiciary.
Mr. Marosz is represented by Federal Public Defender Michael L. Desautels and Assistant Federal Public Defender Barclay T. Johnson. The government is represented by Assistant United States Attorney Gregory L. Waples and Assistant United States Attorney Michael P. Drescher.
On July 19, 2013, the court sentenced Mr. Marosz to a below-Guidelines sentence of 45 months imprisonment following his guilty plea to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The court adopted the presentence report ("PSR") as its findings of fact. It adopted the Sentencing Guidelines recommendation set forth therein without objection.
In determining Mr. Marosz's advisory Guidelines range, the court found that the offense of possession of a firearm by a convicted felon occurred on or about October 16, 2012 and that the Sentencing Guidelines (November 1, 2012 edition) applied. The court concluded that Mr. Marosz committed the offense of conviction subsequent to sustaining a felony conviction for a "crime of violence" based on the residual clause set forth in U.S.S.G. § 4B 1.2(a)(2)
Under the Guidelines, a defendant's base offense level is 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense[.]" U.S.S.G. § 2K2.1(a)(4)(A). The term "crime of violence" is defined in the 2012 Guidelines Manual as:
U.S.S.G. § 4B1.2(a). "Section 4B1.2(a)(1) is referred to as the `physical force clause.' The first half of § 4B 1.2(a)(2) contains the `exemplar crimes,' and the second half the `residual clause.'" United States v. Van Mead, 113 F.3d 429, 432 (2d Cir. 2014).
On or about April 15, 1997, Mr. Marosz pled guilty to a felony burglary under Vermont law and was sentenced to a split term of imprisonment of three to five years. The PSR properly concluded this conviction warranted three criminal history points.
The facts surrounding Mr. Marosz's Vermont burglary conviction are not wellestablished.
The PSR notes that the charging document for Mr. Marosz's felony conviction states that "Edward J. Marosz entered Ryderbrook Pediatrics, knowing he was not licensed or privileged to do so, with the intent to commit larceny, contrary to 13 V.S.A. § 1201(a)." PSR at 13, ¶ 51 (emphasis omitted). The PSR does not indicate whether Mr. Marosz pled guilty to burglarizing the Lamoille Child Care Center or the library, although he also pled guilty to a petit larceny of $500 or less for which the court imposed a split sentence of three to twelve months concurrent to his felony sentence. The PSR contains no recitation of the facts to which Mr. Marosz admitted in pleading guilty.
Although the PSR recognized that the burglary of the Ryderbrook Pediatrics office was not categorically a crime of violence under U.S.S.G. § 4B1.2, it recommended the court find that "the defendant's burglary conviction in this case is a crime of violence under the residual clause of U.S.S.G. § 4B 1.2(a)(2) because burglary involves conduct that present a serious potential risk of physical injury to another." See PSR at 13, ^f 51. The court adopted the PSR's recommendation and determined that Mr. Marosz's base offense was 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A).
The court found that two specific offense characteristics applied: first that the offense involved between three and seven firearms, a two level increase under U.S.S.G. § 2K2.1(b)(1)(A), and second, that the offense involved a firearm with an altered or obliterated serial number, warranting a four level increase under U.S.S.G. § 2K2.1(b)(4) and resulting in an adjusted offense level of 26.
Concluding that Mr. Marosz was entitled to a three level decrease for acceptance of responsibility, the court determined that his total offense level was 23. Mr. Marosz's three criminal history points placed him in criminal history category II. The advisory Guideline imprisonment range for offense level 23 and criminal history category II was 51-63 months. The court varied downward from that range and sentenced Mr. Marosz to 45 months imprisonment, to be followed by three years of supervised release.
If the court had applied a base offense level of 14 which was indicated in the absence of the "crime of violence" predicate, Mr. Marosz's advisory Guidelines range would have been 27-33 months imprisonment. On July 19, 2013, Mr. Marosz was remanded into federal custody, and he has served approximately 38 months of his 45 month sentence.
In Blow v. United States, 829 F.3d 170 (2d Cir. 2016), the Second Circuit instructed:
Id. at 172-73 (citations omitted).
Based on the Second Circuit's guidance in Blow, the Magistrate Judge stayed adjudication of Mr. Marosz's § 2255 motion. Mr. Marosz asks the court to lift that stay and withdraw the reference from the Magistrate Judge.
Mr. Marosz asks the court to consider the standards governing a stay in a habeas corpus proceeding in determining whether to lift the stay in his case. He points out that, like a petitioner for habeas corpus, he will be subjected to unlawful confinement unless the stay is lifted and the merits of his petition are reached. The government responds that the Magistrate Judge did not clearly err in issuing the stay because Mr. Marosz is not likely to succeed on the merits of his § 2255 motion, and the stay prevents the unnecessary expenditure of governmental and judicial resources if Beckles is ultimately decided in the government's favor.
This court "may reconsider any pretrial matter [decided by a magistrate judge] where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). Without deciding whether the habeas standard applies, the court agrees that the following factors are instructive in determining whether a stay should be granted or lifted: (1) whether the petitioner has made a strong showing of a likelihood of success on the merits; (2) whether the petitioner will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure other interested parties; and (4) whether the public interest support a stay. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (listing factors governing the issuance of a stay); see also Mohammed v. Reno, 309 F.2d 95, 100 (2d Cir. 2002) ("Four criteria are relevant in considering whether to issue a stay of an order of a district court. . . pending appeal: the likelihood of success on the merits, irreparable injury if a stay is denied, substantial injury to the party opposing a stay if one is issued, and the public interest.").
The Supreme Court disfavors the issuance of a stay pending its determination of a non-party's case "if there is even a fair possibility that the stay . . . will work damage to someone else" and if the party seeking the stay "make[s] out a clear case of hardship or inequity." Landis v. N. Am. Co., 299 U.S. 248, 255 (1936) (observing that "[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both."). The Second Circuit recognized the possibility of hardship or inequity in Blow by observing that "[t]he district court is free to consider termination of the stay[.]" Blow, 829 F.3d at 173.
Mr. Marosz has established that he may be irreparably harmed if the court does not lift the stay and reach the merits of his petition. As of the date of this Order, he has served approximately 38 months of his sentence, which is five months longer than the high end of the advisory Guidelines range if the court had used a base offense level of 14. He has thus established that if the stay is not lifted and his requested relief is ultimately granted, it will be meaningless.
Waiting until after the Supreme Court decides Beckles may further injure Mr. Marosz as the Supreme Court is scheduled to hear oral argument on November 28, 2016, three days after his anticipated release date. See Guerrero v. United States, 2016 WL 4939072, at *3 (S.D.N.Y. Sept. 6, 2016) (denying government's motion for a stay pending Supreme Court's decision in Beckles where, "whether or not his motion warrants relief, [defendant] should not be forced to await the decision in Beckles, which may be issued following his [February 13, 2017] release date"). It is likely to be several months thereafter until a decision is issued. Against this backdrop, any interest the government asserts in minimizing expenditures and conserving judicial resources is substantially outweighed by Mr. Marosz's potential right to relief and the public's strong interest in having the court "summarily hear and determine the facts, and dispose of the matter as law and justice require." 28 U.S.C. § 2243.
Mr. Marosz has further established a likelihood that he will prevail on the merits. He has demonstrated that his base offense level was calculated with reference to a "crime of violence" residual clause with language identical to that deemed impermissibly vague in Johnson. In an unpublished decision, the Second Circuit concluded that the residual clause is unconstitutionally vague, and as a result, a conviction for attempted seconddegree burglary was "no longer a predicate offense . . . in light of Johnson v. United States[.]" See United States v. Welch, 641 F. App'x 37, 42-43 (2d Cir. 2016) (holding that "[b]ecause [New York's burglary] statute criminalizes conduct that does not fall exclusively within § 4B1.2(a)(1)'s `use of physical force' clause or § 4B1.2(a)(2)'s enumerated offenses, for the enhancement to apply, the government must have `shown that the plea `necessarily' rested on a fact identifying the conviction as a predicate offense.'"). A similar conclusion is warranted in this case.
Under Vermont law, "[a] person is guilty of burglary if he or she enters any building or structure knowing that he or she is not licensed or privileged to do so, with the intent to commit a felony, petit larceny, simple assault, or unlawful mischief." 13 V.S.A. § 1201(a). The plain language of § 1201(a) does not require the use of physical force as an essential element of the crime. "In looking beyond the statutory definition to determine whether a conviction under a divisible statute is a crime of violence, a district court's inquiry is `circumscribed.'" Welch, 641 F. App'x at 43. "A sentencing court must limit itself to "examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States, 544 U.S. 13, 16(2005).
In this case, the government proffers no permissible sources regarding the nature of Mr. Marosz's Vermont felony burglary conviction beyond the information contained in the PSR. Moreover, in opposing Mr. Marosz's requested relief, the government does not claim that it can establish that Mr. Marosz's guilty plea to the felony Vermont burglary "`necessarily' rested on a fact identifying the conviction as a predicate offense." United States v. Savage, 542 F.3d 959, 964 (2d Cir. 2008) (citing Shepard, 544 U.S. at 24). To the contrary, the facts set forth in the PSR strongly support a conclusion that no use of physical force will be found. Mr. Marosz is therefore likely to establish that the only reason why his base offense level was 20 as opposed to 14 was because the court followed Brown which has since been abrogated by Johnson. He is therefore further likely to establish that he is entitled to his requested relief if Beckles concludes that Johnson applies retroactively to the "crime of violence" residual clause in the Guidelines.
For the foregoing reasons, the court GRANTS Mr. Marosz's motion for review of the Magistrate Judge's Order staying the case, LIFTS the stay, and withdraws the reference.
Mr. Marosz asserts that his conviction under 13 V.S.A. § 1201(a) for burglary of a professional business is not a "crime of violence" under Johnson. He argues that Beckles is likely to determine that Johnson applies retroactively to the Guidelines' "crime of violence" residual clause. Without disagreeing that Mr. Marosz's Vermont burglary conviction is not a "crime of violence" under Johnson,
The majority of the U.S. Courts of Appeals have concluded that Johnson applies to the "crime of violence" residual clause set forth in the Sentencing Guidelines. The Second, Third, Sixth, and Tenth Circuits have held that Johnson invalidates the "crime of violence" residual clause in the Guidelines.
Even if the Beckles Court determines that Johnson is not retroactive for Guidelines cases, there remains no legitimate basis on which to deprive Mr. Marosz of his requested relief. Application of the "crime of violence" residual clause nearly doubled Mr. Marosz's advisory Guidelines sentencing range. "For any court to say that this disparity had no or limited impact on the sentence would mean that the Guidelines were discounted among the sentencing factors to the point of being almost ignored." United States v. Valesquez, 2016 WL 4148316, at *3 (E.D.N.Y. Aug. 4, 2016).
28 U.S.C. § 2255(a) provides:
A non-jurisdictional, non-constitutional error must rise to a "fundamental defect which inherently results in a complete miscarriage of justice" in order to present a cognizable claim under § 2255. Hill v. United States, 368 U.S. 424, 428 (1962). Where the error in sentencing is alleged to be constitutional in nature, the "fundamental defect" standard does not apply. See United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (ruling that while an error in calculating an advisory Sentencing Guidelines is generally not the basis for a collateral attack under § 2255, relief is available for "an error of constitutional. . . magnitude").
In this case, the court was required by federal law to consider "the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines[.]" 18 U.S.C. § 3553(a)(4)(A). The court followed this statutory mandate and its 45 month sentence was a direct product of the impermissibly vague "crime of violence" residual clause set forth in the applicable Guidelines. In the absence of the residual clause, it is virtually certain that Mr. Marosz would no longer be confined to imprisonment as the court would not have imposed an above Guidelines sentence. Mr. Marosz's continued confinement is therefore the result of a fundamental defect in his sentencing which, if not corrected, will result in a miscarriage of justice. See Hill, 368 U.S. at 428.
The court therefore GRANTS Mr. Marosz's motion, VACATES his sentence, and will schedule a resentencing forthwith.
SO ORDERED.