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United States v. Pullia

United States District Court, N.D. Illinois, Eastern Division

November 8, 2017



          Harry D. Leinenweber, Judge

         Before the Court are Motions under 28 U.S.C. § 2255 to Set Aside, Correct, or Vacate Defendants' Sentences. As the parties briefed these cases in consolidated fashion and Defendants were all prosecuted in the same underlying criminal case, the Court issues the following single Opinion denying Defendants Pullia's and Scalise's Motions with prejudice and denying Defendant Rachel's Motion without prejudice.

         I. BACKGROUND

         On January 13, 2011, the Government indicted Defendants Robert Pullia (“Pullia”), Joseph Scalise (“Scalise”), and Arthur Rachel (“Rachel”) on four counts: conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) (Count I); conspiring to interfere with commerce through robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count II); possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count III); and possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count IV).

         Just over a year later, Pullia and Scalise each pleaded guilty to all four counts. Their plea agreements detail the dealings of a criminal organization that included, among others, Pullia, Scalise, and Rachel. The organization had as its object the commission of certain federal and state crimes. Specifically, its members conspired to rob an armored truck and engaged in surveillance to identify the time and manner in which the truck visited a local bank. (Scalise and Pullia also admitted to performing surveillance on other robbery targets.) Scalise admitted that he suggested spraying resisting victims with tear gas. In addition, Pullia and Scalise admitted that they conspired with Rachel to break into a residence and use force to take property from its inhabitants. As with the armored truck, the three men surveilled the residence ahead of the contemplated break-in. Ultimately, they agreed on a break-in strategy involving drilling a hole through the mortar surrounding a glass block window located on the side of the house. On April 7, 2010, Scalise began drilling a hole through the mortar, and reported his progress to Pullia and Rachel (who were waiting in a nearby van and monitoring police radio traffic). Both Defendants also admitted that Scalise used an alias to rent a garage for the purpose of storing stolen vehicles, firearms, magazines, ammunition, and masks for use in the course of the enterprise's illegal activity. Both previously convicted of felonies, Pullia and Scalise admitted to possessing at least one of the three firearms stored in the garage for use in the commission of the enterprise's planned robberies.

         By the terms of the plea agreements, the parties could not ask for a sentence outside the agreed range of 106 to 117 months and neither Pullia nor Scalise would be bound by his plea unless the Court imposed a sentence within this range. (Case No. 10 CR 290, ECF No. 199 (“Pl. Agr.”) ¶ 10 (citing Fed. R. Crim. P. 11(c)(1)(C)).) Also included in each agreement is a provision waiving the defendant's right to seek collateral review under 28 U.S.C. § 2255. The exceptions to this waiver are for claims of involuntariness, ineffective assistance of counsel with respect to the waiver itself, and motions “seeking a reduction of sentence based directly on a change in the law that is applicable to defendant and that, prior to the filing of defendant's request for relief, has been expressly made retroactive by an Act of Congress, the Supreme Court or the United States Sentencing Commission.” (Pl. Agr. ¶ 17(b).)

         The case against Rachel, however, proceeded to a bench trial. The Government presented evidence consistent with the above factual bases for Pullia's and Scalise's pleas. On January 26, 2012, the Court convicted Rachel on the first three counts but acquitted him on Count IV, finding “overwhelming evidence” that Rachel conspired with Pullia and Scalise “to take property from the person or presence of Mrs. Lascola, the owner of that home, by force or threat of imminent force, and that several steps were taken in furtherance of the conspiracy.” (Case No. 10 CR 290-3, ECF No. 221 (“Rachel Findings”) at 3:14-19.) The Court placed emphasis on Rachel's arrest outside the residence clad in dark clothes and within reach of a panoply of burglary tools. Similarly, the Court found that Rachel “conceded his participation in the conspiracy by discussing the robbery and noting that he wanted ‘biggest gun we got'” in connection with the armored truck robbery. (Id. at 6:4-7.) Finally, the Court applied the foreseeability and “in furtherance” rationales articulated in Pinkerton v. United States, 328 U.S. 640 (1946), to find Rachel guilty on Count III despite his contention that he had not personally possessed the firearms found in Scalise's rented garage.

         On June 7, 2012, the Court sentenced Rachel to a total term of imprisonment of 101 months - 41 months on Counts I and II, and a consecutive term of 60 months on Count III. Rachel did not appeal. On August 29, 2012, the Court sentenced Scalise to a total term of imprisonment of 106 months - 46 months on Counts I, II, and IV, and a consecutive term of 60 months on Count III. Pullia received the same sentence on that day. As a condition of their respective pleas, Pullia and Scalise waived their appeal rights.

         On June 21, 2016, Scalise and Pullia filed their § 2255 Motions arguing that their convictions on Count III for possessing a firearm in furtherance of a crime of violence are invalid under Johnson v. United States, 135 S.Ct. 2251 (2015). On July 28, 2016, Rachel filed his own analogous § 2255 Motion.


         Section 2255 allows a person held in federal custody to petition the sentencing court for an order vacating, setting aside, or correcting his sentence. 28 U.S.C. § 2255(a). Relief is “reserved for extraordinary situations.” Hays v. United States, 397 F.3d 564, 566 (7th Cir. 2005) (quoting Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)). A petitioner must establish that “the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack.” Id. at 566-67 (quoting Prewitt, 83 F.3d at 816).


         All three Defendants were sentenced to the mandatory minimum of 60 months' imprisonment under 18 U.S.C. § 924(c)(1)(A)(i), which applies to a defendant who uses or carries a firearm during the commission of any “crime of violence.” A “crime of violence” is an offense that both is a felony and either “(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.” 18 U.S.C. § 924(c)(3)(A)-(B). Subpart (A) is the so-called “elements clause, ” whereas subpart (B) is known as the “residual clause.” Underlying each Defendant's guilty plea (or, in Rachel's case, conviction) on Count III under § 924(c) was a guilty plea (or conviction) on Count II for conspiracy to commit Hobbs Act robbery. (The Court notes that “[e]very circuit to have considered the issue has concluded that § 924(c) does not require the defendant to be convicted of (or even charged with) the predicate crime, so long as there is legally sufficient proof that the predicate crime was, in fact, committed.” Johnson v. United States, 779 F.3d 125, 129 (2d Cir. 2015) (citations omitted); see also, Davila v. United States, 843 F.3d 729, 731 (7th Cir. 2016) (holding that § 924(c)(1)(A) “requires a minimum sentence of five years if the firearm is possessed during and in relation to a drug offense or a crime of violence ‘for which the person may be prosecuted' (emphasis added); it does not require a prosecution for or conviction of that other offense”) (citations omitted).)

         In Johnson v. United States,135 S.Ct. 2551, 2557 (2015), the Supreme Court held unconstitutionally vague the residual clause in the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. 924(e)(2)(B)(ii). Welch v. United States,136 S.Ct. 1257 (2016), then gave that decision retroactive application on collateral review. Defendants contend in their § 2255 Motions that their sentences on Count III cannot be sustained because, under Johnson and its Seventh Circuit progeny, § 924(c)'s similar residual clause is unconstitutionally vague. And because Hobbs Act conspiracy does not qualify as a predicate “crime of violence” under the ...

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