USA v. BRIGHT et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
║
REMY AUGUSTIN 	║
║ 	1:16-cv-00042
Petitioner, 	║ 	1:00-cr-00004
║
v. 	║
║
UNITED STATES OF AMERICA, 	║
║
Respondent. 	║
________________________________________________ 	║
TO: 	Remy Augustin, Pro Se, 05550-094
USP Atwater
U.S. Penitentiary
P.O. Box 019001
Atwater, CA 95301
REPORT AND RECOMMENDATION
THIS MATTER is before the Court upon the Order (ECF No. 356) of Chief Judge
Wilma A. Lewis in Criminal No. 00-cr-00004 referring Petitioner Remy Augustin’s Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody1 (ECF Nos. 333, 355)2 to the undersigned for a report and recommendation. For
the reasons that follow, the undersigned recommends that Remy Augustin’s motion be
denied.
1 All citations to the United States Code are to the electronic version that appears in Lexis.
2 All ECF document numbers are as recorded in 1:00-cr-00004, unless otherwise noted.
Case: 1:00-cr-00004-RAM-EAH Document #: 357 Filed: 04/10/18 Page 1 of 7

Augustin v. United States
1:16-cv-00042; 1:00-cr-00004
Report and Recommendation
Page 2
I. 	Legal Standards
Under 28 U.S.C. § 2255, a federal prisoner may move the court to vacate, set aside, or
correct a sentence that is “allegedly in violation of the Constitution.” Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002). Before ordering an answer to a § 2255 motion, the
court must review the motion and dismiss it, if it "plainly appears from the motion, any
attached exhibits, and the record of prior proceedings that the moving party is not entitled
to relief." U.S.C. Sec. 2255 Proc R 4. Relief under § 2255 may be granted on several grounds
including "that the sentence was imposed in violation of the Constitution or the laws of the
United States." 28 U.S.C. § 2255(a). The statutory remedy for an unlawfully-imposed
sentence is that "the court shall vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct the sentence as may appear
appropriate." 28 U.S.C. § 2255(b). The court must construe pro se pleadings liberally,
reviewing them with "less stringent standards than formal pleadings drafted by lawyers."
Haines v. Kerner, 404 U.S. 519, 520 (1972). The court accepts the truth of the defendant's
allegations when reviewing a § 2255 motion unless those allegations are "clearly frivolous
based on the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A
court is required to hold an evidentiary hearing when the motion "allege[s] any facts
warranting § 2255 relief that are not clearly resolved by the record." United States v.
Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting Booth, 432 F.3d at 546).
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Augustin v. United States
1:16-cv-00042; 1:00-cr-00004
Report and Recommendation
Page 3
II. 	Discussion
Over a three week period in February 1997, Augustin and three other men
committed a series of robberies during which they stole money and property from
businesses, and customers and employees thereof. To effectuate the robberies, the men
entered the premises, aimed a handgun at the victims and demanded their money and
property.3 On April 27, 1999, a grand jury returned a multi-count indictment that charged
Augustin with federal and local charges including three counts of interference with
commerce by robbery in violation of 18 U.S.C. § 1951 and three counts of use of a firearm
during a crime of violence in violation of 18 U.S.C. 924(c). The case went to trial on
December 11, 2000. On December 22, the jury returned guilty verdicts against Augustin on
Counts 1-12 and not guilty on Count 13 of the indictment. Augustin was sentenced on
December 19, 2001. His conviction was affirmed on December 16, 2002. United States v.
Bright, 54 Fed. Appx. 765 (3d Cir. 2002), cert. denied, Augustin v. United States, 2003 U.S.
LEXIS 2624 (2003.)
On June 23, 2016, Augustin filed a pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 (ECF No. 333). In his motion Augustin contends that in
light of the Supreme Court decision in Johnson v. United States, 135 S. Ct. 2551 (2015), his
Hobbs Act robbery conviction should not have been classified as a crime of violence for
3 For example, “Atwater testified that . . . [co-defendant] Bright approached her, pointed a silver gun at her and
commanded her to give him her jewelry. She refused. Bright pointed the gun at Rick Wheelock. Wheelock
emptied the cash register.” Criminal No. 00-00004, Volume 2, Document No. 181, page 5.
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Augustin v. United States
1:16-cv-00042; 1:00-cr-00004
Report and Recommendation
Page 4
purposes of § 924(c). Section 2255(f)(3) provides prisoners the opportunity to challenge
the legality of their sentences outside the 1-year period of limitations, when “a right has
been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review.” In the spring of 2017, the Supreme Court held that the ruling in Johnson
is retroactive to cases on collateral review. Welch v. United States 136 S. Ct. 1237, Syl. ¶ 3
(2016). Accordingly, Augustin’s § 2255 motion pursuant to Johnson was timely. However,
Augustin is not a candidate for sentencing modification.
Augustin advances two arguments in support of his claim. First, that a Hobbs Act
robbery should not be classified as a crime of violence for purposes of sentencing
enhancement because § 924(c)(3)(B) is void for vagueness and second, that Hobbs Act
robbery does not satisfy the elements test, as described in Taylor v. United States, 495
(1990) and Mathis v. United States 136 S. Ct. 2243 (2016).4
Third Circuit precedent informs us that a Hobbs Act robbery committed while using
a firearm is a crime of violence. United States v. Young, 705 Fed. Appx. 94, 95 (3d Cir. 2017).
See also, United States v. Kennedy, 2017 U.S. App. LEXIS 25473, *14-15 (3d Cir. 2017) accord
United States v. Robinson, 844 F.3d 137 (3d Cir. 2016). In the Third Circuit, when two
offenses, here, robbery and using or carrying a gun, “have been tried together and the jury
4 See, e.g. United States v. O’Connor, 874 F.3d 1147, 1158 (10th Cir. 2017) (“Hobbs Act robbery can be
accomplished by threats to property. Both generic robbery and Guidelines extortion . . . are limited to conduct
involving physical force or threats of physical force against a person. . . .Hobbs Act robbery under § 1951(b)(1)
does not categorically qualify as a crime of violence under the enumerated offense clause of the Guidelines.”).
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Augustin v. United States
1:16-cv-00042; 1:00-cr-00004
Report and Recommendation
Page 5
has reached a guilty verdict on both offenses, the Hobbs Act robbery qualifies as a crime of
violence under the 'elements clause' of 18 U.S.C. § 924(c)(3)(A)." Robinson, 844 F.3d at
139.5
Like Robinson, Kennedy, and Young, Augustin’s predicate offense (robbery) was tried
contemporaneously with the enhancement offense (use of a firearm during a crime of
violence). The difficulty for sentencing judges, and thus the need for the elements test,
arises when the predicate offense is from a previous conviction. In some cases the previous
convictions relevant to sentencing enhancement were tried years before the conviction
upon which a defendant is being sentenced. As a result, the sentencing judge is not privy to
the facts of those previous cases. To avoid vast disparities in sentencing, courts employ the
elements test—asking “whether the elements of the offense forming the basis for the
conviction sufficiently match the elements of the generic (or commonly understood)
version of the enumerated crime.” (Mathis, 136 S. Ct. at 2245).
In Augustin’s case, there is no previous conviction at issue. The jury decided
contemporaneously that he was guilty of both robbery and use of a firearm during a crime
of violence (i.e. robbery). The record in Augustin’s case indicates that the jury was
cognizant of the law and applied the law to the facts of his case when they convicted him of
both § 1915 and § 924 for the robberies of the Off the Wall Restaurant and the Chocolate
Barbeque that occurred on February 12 and 18, 1997, and of § 1915, only, for the robbery
5 Therefore, the Court need not address Augustin’s “§ 924(c)(3)(B) is void for vagueness” argument.
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Augustin v. United States
1:16-cv-00042; 1:00-cr-00004
Report and Recommendation
Page 6
of the Saibaba Gift Shop that occurred on February 21, 1997.6 Because the jury considered
the facts and determined that Augustin was guilty of committing robbery by (1) actual or
threatened force, violence, or injury to person or property, and that he (2) used or carried a
firearm in doing so, applying the elements test is not necessary.7 The combined convictions
show that a firearm was the source of the "actual or threatened force, or violence, or fear of
injury" in Augustin’s Hobbs Act robbery. Accordingly, Augustin’s Hobbs Act robbery was
properly classified as a crime of violence.
III. 	Conclusion
Based upon the foregoing, IT IS HEREBY RECOMMENDED that Remy Augustin’s
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (ECF Nos. 333, 355) be DENIED without an evidentiary hearing.8 It is
further recommended that a certificate of appealability be DENIED.9
6 The jury returned a verdict of “Not Guilty” as to Augustin on Count 13, use of firearm during robbery of Saibaba
Gift Shop. Criminal No. 00-00004, Volume 2, Document No. 181, Exhibit 1. Witnesses testified that one or more
of the co-defendants pointed a gun at them while in the course of the robberies. Id.at 5-7.
7 18 U.S.C. § 924(c)(3) defines a "crime of violence" as a felony that
(A) has as an element the use, attempted use, or threatened use of physical force against the person or
property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another
may be used in the course of committing the offense.
8 The question of whether to order an evidentiary hearing when considering a motion to vacate a sentence
under § 2255 “is committed to the sound discretion of the district court.” Government of Virgin Islands v.
Forte, 865 F.2d 59, 62 (3d Cir.1989). A § 2255 evidentiary hearing “is unnecessary when the ‘files and records
of the case conclusively show that the prisoner is entitled to no relief.’” United States v. Padilla–Castro, 426 F.
App’x 60, 63 (3d Cir.2011) (quoting 28 U.S.C. § 2255(b)). Here, the record in this case conclusively shows that
Augustin is not entitled to relief.
9 When a district court issues a final order on a § 2255 motion, it must make a determination whether it will
permit a certificate of appealability. 3d Cir. L.A.R. 22.2; Fed. R. App. P. 22(b)(1). A district court will issue a
certificate of appealability only upon a finding of a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Here, the record fails to show a violation of Augustin's constitutional rights.
Accordingly, a certificate of appealability should be denied.
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Augustin v. United States
1:16-cv-00042; 1:00-cr-00004
Report and Recommendation
Page 7
Any objections to this Report and Recommendation must be filed in writing within
fourteen (14) days of receipt of this notice. Failure to file objections within the specified
time shall bar the aggrieved party from attacking such Report and Recommendation before
the assigned District Court Judge. 28 U.S.C. § 636(b)(1); LRCi 72.3.
ENTER:
Dated: April 10, 2018 	/s/ George W. Cannon, Jr.
GEORGE W. CANNON, JR.
MAGISTRATE JUDGE
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