Lovick v. United States

Background

Fuguan Lovick pleaded guilty to two counts arising from a 2018 incident at the Barclays Center in Brooklyn. Count Six charged a violent crime in aid of racketeering based on an alleged violation of New York Penal Law § 120.14, which concerns intentionally placing or attempting to place another person in reasonable fear of injury or death by displaying a deadly weapon or what appears to be a firearm. Count Seven charged using, carrying, possessing, brandishing, and discharging a firearm during and in relation to that violent crime, under 18 U.S.C. § 924(c).

The court sentenced Lovick to one month on Count Six and 84 months on Count Seven, to run consecutively, followed by three years of supervised release. Lovick did not appeal. He later filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence, seeking relief from Count Seven.

Lovick’s Argument

Lovick relied on Borden v. United States, in which the Supreme Court held that an offense requiring only reckless conduct does not qualify as a crime of violence under the relevant federal firearms statute. Lovick argued that New York Penal Law § 120.14 does not require an intent to cause physical injury and that his conduct did not injure anyone because he fired above the heads of the rival gang members.

The court also requested briefing on whether Taylor v. United States affected the analysis. Taylor held that attempted Hobbs Act robbery is not categorically a crime of violence because it can be completed through conduct that does not itself involve using, attempting to use, or threatening physical force.

Court’s Analysis

The court held that Borden did not invalidate Lovick’s firearms conviction. Unlike the Tennessee statute in Borden, New York Penal Law § 120.14 expressly requires intentional conduct. The statute requires that the defendant intentionally place or attempt to place another person in reasonable fear of physical injury, serious physical injury, or death by displaying a deadly weapon or firearm. The court found that the statute does not permit conviction based on reckless conduct and therefore is not disqualified as a crime of violence under Borden.

The court rejected Lovick’s argument based on the particular facts of his conduct. Under the categorical approach, which examines the statutory elements rather than the facts of the individual case, the facts of the charged incident do not determine whether the offense is a crime of violence. The court also stated that Lovick’s guilty-plea admissions established that he pulled out a gun and fired it into the air to scare the others away. In addition, the court held that Lovick had waived any challenge to whether his plea admissions established the elements of Count Six by failing to raise that issue on direct appeal.

The court separately held that the claim was procedurally defaulted. A § 2255 motion generally cannot be used to raise a claim that could have been raised on direct appeal. A defendant may overcome that bar by showing cause and actual prejudice or actual innocence. The court found that Lovick did not claim actual innocence and did not establish cause or prejudice. It reasoned that a Borden-type argument was available before and at the time of his prosecution and that, in any event, the argument would not have succeeded because § 120.14 requires intentional conduct.

The court further held that Taylor did not change the result. Section 120.14 does not impose liability for merely attempting to make a threat, the feature that made attempted Hobbs Act robbery insufficient in Taylor. Instead, § 120.14 requires intentional conduct that places or attempts to place another person in reasonable fear by displaying a weapon or apparent firearm. The court relied in part on Second Circuit authority treating an attempted offense as a crime of violence when the attempt requires intent to commit each essential element of the completed offense.

Disposition

The court denied Lovick’s § 2255 motion. It declined to issue a certificate of appealability, certified that any appeal would not be taken in good faith, and denied fee-free appeal status for that purpose. The clerk was directed to terminate the motion in the criminal case and close the corresponding civil case.