Moore v. United States
- John Koeltl
- 1:19-cv-11481
- U.S. District Court · Southern District of New York
- 5
In Moore v. United States, Judge Koeltl postponed deciding Moore’s challenge and required him to choose whether to pursue or withdraw a sentence-vacating motion.
Duane Moore, who was required to choose whether to pursue conversion of his motion into a federal sentence-vacating petition or withdraw it.
What happened
In Moore v. United States, Duane Moore, representing himself, asked the court to restructure his sentence. He challenged his conviction under a federal firearm statute and argued that the court incorrectly considered an uncharged Queens robbery when calculating his sentence and restitution.
The court explained that these challenges belong in a motion to vacate, set aside, or correct a sentence under federal law. But it would not automatically convert Moore’s motion into that type of petition because doing so could affect restrictions on later petitions. The court gave Moore until February 17, 2020, to tell the court whether he wanted to proceed under that statute or withdraw the motion.
Judge John G. Koeltl did not decide the underlying challenges. He noted that the Second Circuit had held that bank robbery by intimidation qualifies as a crime of violence, and that the sentencing record showed the court had not used the Queens robbery. If Moore did not respond by the deadline, the court would treat the motion as a sentence-vacating petition under the cited statute.
The detailed version
- Moore v. United States · No. 1:19-cv-11481
- John Koeltl
- Dec. 17, 2019
Background
Duane Moore, appearing without a lawyer, filed a motion titled “Motion Requesting Restructuring of Sentence.” He raised two challenges:
1. He argued that his conviction under 18 U.S.C. § 924(c)(1)(A)(i) should be vacated because the statute’s definition of a “crime of violence” was unconstitutionally vague. 2. He argued that the court incorrectly calculated his Guidelines sentencing range and restitution by including an uncharged robbery in Queens.
Why the Court Did Not Automatically Convert the Motion
The court explained that a challenge to the lawfulness of a federal conviction or sentence must generally be brought under 28 U.S.C. § 2255, which allows a federal prisoner to seek correction, vacatur, or other relief from a sentence. But the court said it could not recharacterize Moore’s motion as a § 2255 petition on its own. Recharacterization could affect Moore’s ability to file a later “second or successive” § 2255 petition, which is subject to statutory restrictions and generally requires authorization from the Second Circuit Court of Appeals.
Options Given to Moore
The court gave Moore until February 17, 2020, to choose between two options:
- Tell the court that he wanted it to treat the motion as a § 2255 petition, and provide any additional information he wished to raise; or - Tell the court that he wanted to withdraw the motion.
The court stated that if Moore did not respond by the deadline, it would construe the motion as a § 2255 petition. If Moore chose conversion, the court would set a schedule for the government to respond and Moore to reply.
Court’s Observations About the Claims
The court did not decide whether Moore was entitled to relief. It nevertheless noted that the Second Circuit had held in United States v. Hendricks that bank robbery by intimidation under 18 U.S.C. § 2113(a) categorically qualifies as a crime of violence for purposes of § 924(c)(1)(A). The court also stated that this holding was unaffected by the Supreme Court’s decisions in Johnson v. United States and United States v. Davis.
Regarding sentencing, the court stated that it had expressly said at sentencing that it would not include the July 15, 2016 Queens robbery because there was insufficient evidence to support it. The court said it instead relied on two completed Manhattan robberies and an attempted Manhattan robbery.
The court further stated that federal courts generally lack jurisdiction to review restitution challenges in § 2255 proceedings. It said the restitution order appeared to include only the Valley National and M&T bank robberies in Manhattan, not the Queens robbery. If Moore supplemented his motion on restitution, the court said he would need to explain why that calculation was incorrect.
Disposition
Judge John G. Koeltl issued a procedural order requiring Moore to state whether he wanted to convert the motion into a § 2255 petition or withdraw it. The opinion did not grant or deny the requested conviction or sentencing relief and did not resolve the merits of Moore’s challenges.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.