Lee v. United States
- Loretta Preska
- 1:18-cv-01856
- U.S. District Court · Southern District of New York
- 33
In Lee v. United States, Judge Preska partly granted and partly denied Lee’s sentence challenge, vacating two convictions and ordering resentencing.
Delroy Lee received partial relief: his convictions on Counts Twenty-Four and Twenty-Five were vacated and he will be resentenced; the court denied his remaining challenges. The Government must propose how to proceed.
What happened
In Lee v. United States, Delroy Lee asked the court to set aside or correct his federal sentence, arguing that some firearm convictions were invalid and that his trial lawyer provided ineffective assistance.
The court ruled that attempted Hobbs Act robbery could no longer support Lee’s firearm convictions under the Supreme Court’s decision in Taylor. It rejected his challenge to the firearm conviction tied to completed Hobbs Act robbery and rejected his other claims, including most claims about double jeopardy and his lawyer’s performance.
Senior United States District Judge Loretta A. Preska granted Lee’s motion in part and denied it in part. She vacated the convictions on Counts Twenty-Four and Twenty-Five and ordered resentencing, while leaving the remaining challenged convictions and claims undisturbed.
The detailed version
- Lee v. United States · No. 1:18-cv-01856
- Loretta Preska
- Aug. 25, 2023
Background
Delroy Lee, representing himself in this sentence challenge, asked the court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. A jury had found him guilty of all counts naming him after a six-week trial. The original sentence totaled life imprisonment plus thirty years.
Lee challenged several firearm convictions under 18 U.S.C. §§ 924(c) and 924(j), asserted that some convictions violated the constitutional protection against double punishment for the same offense, and argued that his trial lawyer was ineffective for various reasons. After the Supreme Court decided United States v. Taylor, Lee also argued that attempted Hobbs Act robbery could not serve as the required underlying felony for his firearm convictions.
Firearm Convictions Based on Hobbs Act Robbery
The court rejected Lee’s challenge to Count Twenty-Two, which involved a firearm and a completed Hobbs Act robbery. The court held that aiding and abetting a completed Hobbs Act robbery remains a valid underlying felony for a firearm conviction under § 924(c). The court relied on a recent decision from the Court of Appeals holding that both committing and aiding and abetting a Hobbs Act robbery can satisfy that requirement.
The court reached a different result for Counts Twenty-Four and Twenty-Five, which involved attempted Hobbs Act robbery. Under Taylor, attempted Hobbs Act robbery is not a “crime of violence” that can serve as the underlying felony for a § 924(c) conviction. The court therefore vacated Lee’s convictions on Counts Twenty-Four and Twenty-Five and ordered that he be resentenced in light of Taylor.
Double Jeopardy Claim
Lee argued that his § 924(c) conviction on Count Sixteen was a lesser-included offense of his § 924(j) conviction on Count Seventeen. A lesser-included offense is one that does not require proof of any fact beyond those required for the greater offense. The court stated that this claim was procedurally barred because Lee had not raised it on direct appeal. The court also rejected it on the merits.
Applying the constitutional “same-elements” test, the court found that Counts Sixteen and Seventeen involved different firearm activity. Count Sixteen covered carrying, using, and possessing multiple firearms over a ten-year period during a narcotics conspiracy. Count Seventeen concerned firing a gun at a particular time to commit Patrick Taylor’s murder. Because each count required proof of a fact the other did not, the court held that Count Sixteen was not a lesser-included offense of Count Seventeen.
Lee also argued that Counts Twenty-Four and Twenty-Five violated the protection against double punishment for the same offense. The court did not decide that argument because vacating those convictions made it moot.
Ineffective-Assistance Claims
The court denied Lee’s claims that his trial lawyer was ineffective. The court found that the lawyer’s decision not to investigate or present evidence about an alternative suspect in the Bunny Campbell murder was a reasonable strategic decision and that Lee had not shown prejudice in light of the trial evidence.
The court also denied claims involving Jessica Parchment’s non-prosecution agreement and the prosecutor’s statements about her testimony. It found that the prosecutor’s statements did not misrepresent the agreement and that Lee’s challenge to alleged improper vouching was procedurally barred and did not show substantial prejudice.
The court rejected Lee’s claim that his lawyer gave incorrect advice about a plea offer. It found that the lawyer had explained the agreement and possible sentencing consequences, and that Lee could not show that different advice would have caused him to accept the offer. The court also rejected or denied claims concerning the investigation of dismissed robbery charges, the failure to object to a jury instruction treating Hobbs Act robbery as a crime of violence, and the failure to raise double-punishment objections at sentencing.
Disposition
Judge Loretta A. Preska granted Lee’s § 2255 motion in part and denied it in part. The court vacated Counts Twenty-Four and Twenty-Five and ordered resentencing. It denied the remaining claims addressed in the opinion. The Government was directed to tell the court within fourteen days how it proposed to proceed, and Lee could respond within twenty-one days after the Government’s letter. The court also directed the Clerk to close the open motions and the related civil case.
Read the full 33-page opinion on CourtListener, the free public archive maintained by the Free Law Project.