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Brunstorff v. United States

United States District Court, D. Connecticut

November 30, 2017

KOUWANII BRUNSTORFF, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          Michael P. Shea, U.S.D.J.

         Kouwanii Brunstorff filed a motion to vacate his sentence under 28 U.S.C. § 2255 (“Section 2255”). On August 10, 2012, Judge Ellen Burns sentenced Mr. Brunstorff to 180 months of imprisonment followed by five years of supervised release after Mr. Brunstorff pleaded guilty to being a felon in possession of a firearm and ammunition.[1] The sentence rested in part on Judge Burns' determination that Mr. Brunstorff was subject to a mandatory minimum sentence of 180 months under the Armed Career Criminal Act, 18 U.S.C. § 924(e), (“ACCA”). The ACCA imposes such a minimum sentence on felons in possession of a firearm who have three previous convictions for a “violent felony, ” and Judge Burns determined that Mr. Brunstorff's New York state convictions for robbery, assault, and attempted assault qualified as such. Later, in 2014, Judge Burns denied Mr. Brunstorff's first motion seeking to vacate his sentence under Section 2255.

         In this second Section 2255 petition, Mr. Brunstorff argues that his ACCA-enhanced sentence must be vacated because his prior convictions are not “violent felonies” under the ACCA. Specifically, Mr. Brunstorff argues that at sentencing Judge Burns applied the ACCA's residual clause, which was subsequently held unconstitutional in the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (hereinafter “2015 Johnson”). Alternatively, Mr. Brunstorff argues that even if Judge Burns applied the force clause of the ACCA, which remains in effect, his sentence must be vacated because his prior convictions are not violent felonies under the Supreme Court's interpretation of that clause in Johnson v. United States, 130 S.Ct. 1265, 559 U.S. 133 (2010) (hereinafter “2010 Johnson”). On July 19, 2016, the Second Circuit granted Mr. Brunstorff leave to file this second Section 2255 petition, and directed this Court to address, “as a preliminary inquiry . . . whether the Supreme Court's decision in [2015] Johnson entitles [Mr. Brunstorff] to relief.” (ECF No. 6-1 at 1.)

         For the reasons explained below, I find that 2015 Johnson does not entitle Mr. Brunstorff to relief because the available evidence in the record suggests that Judge Burns did not sentence Mr. Brunstorff under the residual clause. In addition, even if she did, Mr. Brunstorff's claim would fail on the merits, because currently existing Second Circuit precedent holds that Mr. Brunstorff's prior convictions are violent felonies under the ACCA.

         I. BACKGROUND

         A. Conviction and Sentencing

         On March 22, 2011, New London, Connecticut police officers responded to a call reporting a domestic disturbance at an apartment in New London. (Pre-Sentence Report (“PSR”), No. 12-CR-0004, ECF No. 68 ¶ 7.) When they arrived, they found a baby lying face down in a crib in the apartment. (Id.) Meanwhile, Jillian Jalkanen had traveled to the police department where she reported that her boyfriend, Mr. Brunstorff, had assaulted her. (Id.) The officers observed in the apartment in plain view boxes with .357 and .380 caliber ammunition and narcotics paraphernalia, after which a search warrant was secured for the residence. (Id.) As a result of a search, officers located a loaded .380 semi-automatic pistol with an obliterated serial number and a holster and a loaded .357 revolver secreted in the wall of the bathroom and wrapped in a cloth. (Id.)

         On January 5, 2012, a federal grand jury returned a two-count indictment charging Mr. Brunstorff with possession of firearms and ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Mr. Brunstorff pleaded guilty before Judge Burns to Count One of the indictment.[2]

         The plea agreement's section on penalties stated: “Because the defendant has three previous convictions for violent felony and/or serious drug offenses committed on occasions different from one another, the defendant faces a mandatory minimum term of incarceration of fifteen years and up to life imprisonment.” (Plea Agreement, No. 12-CR-0004, ECF No. 45 at 1.) The plea agreement's section on the Sentencing Guidelines further stated, “The defendant understands that, in any event, his sentence of imprisonment cannot be less that [sic] fifteen years.” (Id. at 4.)

         Before sentencing, the U.S. Probation Office prepared a pre-sentence report (“PSR”) describing the following of Mr. Brunstorff's prior New York state convictions: a conviction for two counts of robbery in the first degree in violation of New York Penal Law § 160.15(2) (“forcibly steals property” and “[i]s armed with a deadly weapon”)[3] for conduct occurring on May 25, 1993; a conviction for assault in the second degree and attempted assault in the second degree for conduct occurring on May 29, 1997 and November 4, 1997, respectively, in violation of New York Penal Law § 120.05(2) (“[w]ith intent to cause physical injury to another person, he causes such injury . . . by means of a deadly weapon or a dangerous instrument”); and a conviction for assault in the second degree in violation of New York Penal Law § 120.05(3) (with intent to prevent a law enforcement or EMS person “from performing a lawful duty, he causes physical injury to such” person) for conduct occurring on August 10, 1998. (PSR ¶¶ 12, 21-23.)[4]

         The PSR further stated, “[T]he parties agree that [Mr. Brunstorff] is an armed career criminal based on three or more violent felony offenses committed on different occasions.” (PSR ¶ 12; see also Id. ¶ 63 (“The crimes of violence that qualify him as an armed career criminal occurred when he was 16, and while in prison in his early 20s. As a result, Mr. Brunstorff is facing a mandatory minimum term of 15 years' imprisonment.”).) The PSR identified the statutory minimum term of imprisonment as 15 years under 18 U.S.C. § 924(e). (PSR ¶ 50.) The Probation Office calculated the imprisonment range under the Sentencing Guidelines as 188 to 235 months, based on a total offense level of 31 and a criminal history category of VI. (PSR ¶ 51.)

         On August 10, 2012, Judge Burns sentenced Mr. Brunstorff to 180 months (or 15 years) imprisonment, an eight-month downward departure from the Guidelines range, and five years of supervised release. During the sentencing proceeding, Judge Burns adopted the facts and Guidelines calculation set forth in the PSR and stated that Mr. Brunstorff was “facing a mandatory minimum sentence of 15 years, ” but did not state whether the sentence was based on a particular clause of the ACCA. (Sentencing Tr. at 14, 17.) Mr. Brunstorff did not appeal his conviction or sentence.

         B. Mr. Brunstorff's First Section 2255 Petition

         On November 8, 2013, Mr. Brunstorff filed a motion to vacate, set aside, or correct his sentence under Section 2255. (No. 13-CV-1657 (EBB), ECF No. 1.) Mr. Brunstorff argued that his Sixth Amendment rights were violated by his attorney's ineffective assistance of counsel. Mr. Brunstorff also argued that the Court erred in determining that he was an armed career offender, in contravention of the Supreme Court's decisions in Descamps v. United States, 133 S.Ct. 2276 (2013) and Alleyne v. United States, 133 S.Ct. 2151 (2013).

         On May 15, 2014, Judge Burns denied Mr. Brunstorff's petition. United States v. Brunstorff, No. 13-CV-1657 (EBB), 2014 WL 2002735 (D. Conn. May 15, 2014). The Court ruled that the petition was time-barred, as Mr. Brunstorff filed it more than one year after his sentence became final. Id. at *2. The Court also ruled that the procedural bar was not excused, as neither of the Supreme Court rulings Mr. Brunstorff relied on recognized a new right made retroactively applicable, and as the facts supporting his ineffective assistance of counsel claim were known to him prior to entry of his guilty plea. Id. The Court also noted that Mr. Brunstorff's petition was meritless regardless of the procedural bar, finding that there had been no error in sentencing under the ACCA. Id. at *4. In rejecting Mr. Brunstorff's argument that the Court erred at sentencing in finding his prior convictions to be ACCA predicates, the Court explained:

In this case, the Court did not have a choice between applying the categorical approach or modified categorical approach because the statutes of Brunstorff's prior New York convictions of assault in the second degree, attempted assault in the second degree, and robbery had indivisible elements. Indeed, all three of these statutes had previously been held to be categorically crimes of violence under § 924(e) Specifically, under NYPL § 120.05(2), a person is guilty of assault in the second degree when: ‘[with intent to cause physical injury to another person, [he or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.' Under NYPL § 160.10, a person is ‘guilty of robbery in the first degree when he forcibly steals property.' Brunstorff's prior convictions were thus categorically violent felonies under § 924(e)(1) because they have as elements the use or attempted use of physical force against the person of another.

Id. The Court declined to issue a certificate of appealability, finding that Mr. Brunstorff had “not made a substantial showing of the denial of a constitutional right.” Id. at *5.

         C. The ACCA, 2015 Johnson, and Welch

         The ACCA provides, in relevant part:

In the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years . . . .

18 U.S.C. § 924(e)(1). The ACCA defines “violent felony, ” in relevant part, as “any crime punishable by imprisonment by a term exceeding one year . . . that-

“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk ...

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