Speed v. United States
- P. Castel
- 1:10-cv-03333
- U.S. District Court · Southern District of New York
- 17
In Speed v. United States, Judge Castel denied Speed’s motion challenging his conviction, holding substantive racketeering remained a valid firearm predicate.
Robert Speed’s federal firearm conviction and sentence were left intact, despite the court’s conclusion that racketeering conspiracy could no longer serve as a crime-of-violence predicate.
What happened
In Speed v. United States, Robert Speed asked the court to vacate his conviction and sentence for possessing a firearm in furtherance of a violent crime. He argued that the firearm conviction could not stand because the possible underlying offense—racketeering conspiracy—no longer qualified as a violent crime after Supreme Court decisions made part of the firearm statute unconstitutional.
The court agreed that racketeering conspiracy was no longer a qualifying violent crime. But it held that Speed’s firearm conviction could still rest on his separate conviction for substantive racketeering, because that conviction included multiple New York robbery acts. The court determined that New York robbery requires the use or threatened use of physical force and therefore qualifies under the remaining valid part of the firearm statute.
Judge Castel denied Speed’s motion to vacate, set aside, or correct his conviction and sentence. The court also rejected Speed’s argument that the absence of a special jury finding required the court to rely only on the weaker possible underlying offense.
The detailed version
- Speed v. United States · No. 1:10-cv-03333
- P. Castel
- Oct. 27, 2020
Background
A jury convicted Robert Speed on seven counts, including substantive racketeering under the Racketeer Influenced and Corrupt Organizations Act, racketeering conspiracy, and possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). The firearm conviction was Count Three, and Speed received an 84-month consecutive sentence on that count as part of a total 420-month sentence.
The trial court instructed the jury that both the substantive racketeering charge in Count One and the racketeering-conspiracy charge in Count Two could serve as the crime-of-violence predicate for Count Three. The jury found Speed guilty of both counts but did not specify which count, or whether both counts, supported the firearm conviction.
Speed later sought relief under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a conviction or sentence. He relied on Johnson v. United States and United States v. Davis. Davis held that the residual clause of § 924(c), which defined a crime of violence by the risk that force might be used, was unconstitutionally vague. Speed argued that racketeering conspiracy was no longer a valid predicate and that the court had to assume it was the predicate for Count Three. He alternatively argued that substantive racketeering also could not qualify.
Procedural Default
The government argued that Speed had forfeited his claim by not raising it on direct appeal. The court rejected that argument, finding that the legal basis for Speed’s claim was not reasonably available before Johnson and Davis. The court also found prejudice because, if Speed’s argument were correct, he would have an invalid firearm conviction and the associated 84-month sentence. The court therefore reached the merits.
Racketeering Conspiracy as a Predicate
The court agreed with Speed that, after Davis, racketeering conspiracy could not serve as a crime-of-violence predicate under § 924(c). The conspiracy qualified only under the residual clause, which Davis invalidated.
The court rejected Speed’s further argument that the absence of a special verdict required it to treat racketeering conspiracy as the sole predicate. It relied on decisions holding that a § 924(c) conviction may remain valid when one possible predicate is invalid but another possible predicate qualifies as a crime of violence. The court concluded that the trial record showed the firearm conviction rested on both Count One and Count Two. It therefore examined whether substantive racketeering in Count One remained a valid predicate.
Substantive Racketeering as a Predicate
Under the elements clause of § 924(c), a crime of violence must have as an element the use, attempted use, or threatened use of physical force against a person or property. Courts generally apply a categorical approach, examining the legal elements of the offense rather than the particular facts. When a statute lists alternative elements, courts may use a modified categorical approach and consult limited records such as the indictment and jury instructions.
The court determined that Speed’s substantive racketeering conviction could serve as a predicate because the racketeering pattern included multiple New York robbery acts. Under the law applied by the court, New York robbery requires forcible stealing, which involves the use or threatened use of physical force. The court therefore held that the New York robberies were crimes of violence under the elements clause.
The jury had found several robbery-related racketeering acts proven, including robberies under New York law. The court stated that the record showed more than two qualifying violent racketeering acts. It also noted that the jury found Speed guilty of the firearm charge and specifically found that he brandished the firearm. Because substantive racketeering remained supported by qualifying robbery predicates, the invalidity of racketeering conspiracy did not require vacating Count Three.
Disposition
Judge P. Kevin Castel denied Speed’s motion to vacate, set aside, or correct his conviction and sentence under § 2255. The court directed the Clerk to terminate the motion. The opinion did not state that the denial was with or without prejudice.
Read the full 17-page opinion on CourtListener, the free public archive maintained by the Free Law Project.