ADDITIONAL CASES United States of America, v. Enrique Brito, Defendant; 11-cr-576 (PKC) OPINION AND ORDER Enrique Brito moves to vacate, set aside, or correct the sentence imposed upon him. 28 U.S.C. §2255. He entered a plea of guilty to participating in a racketeering enterprise (Count One) and use of a firearm in furtherance of the crime of attempted murder (Count Twenty-Six). Brito discharged the firearm in an attempt to murder rival gang members but hit an innocent bystander. Brito was just under the age of 18 at the time of the shooting. He was sentenced by the late Judge Pauley to principally 270 months’ imprisonment, consisting of 150 months on Count One and a consecutive term of 120 months on Count Twenty-Six. (ECF 457.)1 For reasons that will be explained, the Court concludes that the crime of attempted murder under New York law that is charged in Racketeering Act Five qualifies as a “crime of violence” under the modified categorical approach. The section 2255 motion will be denied. The Court grants Brito’s separate motion for a reduction in sentence for extraordinary and compelling reasons, 18 U.S.C. §3582(c)(1)(A), and reduces his sentence from principally 270 months imprisonment to principally 202 months imprisonment. The Section 2255 Motion A person in federal custody may collaterally attack a final judgment in a criminal case based on “a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes ‘a fundamental defect which inherently results in complete miscarriage of justice.’” Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (citation omitted). Review of a section 2255 motion “is ‘narrowly limited in order to preserve the finality of criminal sentences and to effect the efficient allocation of judicial resources.’” United States v. Hoskins, 905 F.3d 97, 102 (2d Cir. 2018) (quoting Graziano, 83 F.3d at 590). Brito urges that his conviction on Count One is premised on activity that does not qualify as a “crime of violence” under section 924(c). Count One of the Indictment charged Brito with participation in a RICO enterprise, the Courtland Avenue Crew, and specifically Racketeering Act Five that charged him with attempting to murder and aiding and abetting the attempted murder of a member of a rival crew on July 7, 2011 that resulted in the non-fatal shooting of a bystander. (ECF 93, at 2). Racketeering Act Five insofar as it relates to the July 7, 2011 shooting expressly incorporates New York Penal Law §§20.00 (criminal culpability for the conduct of another), 110.00 (attempt) and 125.25 (second degree murder). Count Twenty-Six is related to the same July 7 incident and charged Brito with use, carrying and discharging a handgun during and in relation to a crime of violence. As part of his plea allocution, Brito admitted the following: In 2008 to 2011 I was a member of a group known as God’s Favorite Children. This group protected each other and at times sold drugs to support the group. In order to protect the group, I agreed with others to shoot our rival gang members with the intent to murder them. On July 2011 I attempted to murder rival gang members when I, along with other GFC members, fired a handgun at the Maria Lopez houses in the Bronx. As part of and in order to support the members of the group, I also agreed with others to sell crack cocaine in the Bronx. The group told more than 280 grams of crack together. THE COURT: Were you also involved in the marijuana? THE DEFENDANT: Yes. THE COURT: What kind of firearm did you possess? THE DEFENDANT: 9-millimeter. (ECF 676, at 61-62.) Brito’s original pro se motion relied upon Johnson v. United States, 576 U.S. 591(2015), initially arguing that under 18 U.S.C. §924(c)(3)(A) no “crime of violence” was charged and that the residual portion of the statute was void for vagueness. (ECF 595, 596.) Counsel, on his behalf, subsequently submitted a 39-page brief, focusing principally on an argument that Racketeering Act Five, an attempted murder, does not qualify as a “crime of violence.” (ECF 676.) The parties have supplemented their briefing. (ECF 795, 801.) Relying upon United States v. Taylor, 596 U.S. 845 (2022), Brito asserts that attempted murder is not a crime of violence within the meaning of 18 U.S.C. §924(c)(3)(A). The disposition of this motion is aided by the decision of the Second Circuit in United States v. Pastore, 36 F.4th 423, 430 (2d Cir. 2022), opinion withdrawn and superseded on rehearing, 83 F.4th 113 (2d Cir. 2023) (Pastore II). Utilizing the modified categorical approach, the Circuit considered whether the crime of attempted murder under New York law was a “crime of violence” within the meaning of section 924(c)(3)(A). In Pastore II, the predicate “crime of violence” was, as in the instant case, attempted murder under New York Penal Law §§20.00, 110.00 and 125.5. 83 F.4th at 120; ECF 93 at 11(b). The Court held as follows: “Because [defendant's] conviction for attempted murder in aid of racketeering under 18 U.S.C. §1959(a)(5) is premised on the predicate crime of attempted murder under New York law, which constitutes a crime of violence as defined in the elements clause of section 924(c), we necessarily conclude that [defendant's] conviction for attempted murder in aid of racketeering under section 1959(a)(5) is a crime of violence.”2 83 F.4th at 121-22. Pastore II is controlling. Brito’s conviction was premised upon a qualifying “crime of violence.” It is not necessary to reach the government’s alternative arguments for upholding the conviction. In a letter dated December 1, 2023, in response to the Court’s inquiry, counsel for Brito acknowledged that the Second Circuit decisions in Pastore II, United States v. Davis, 74 F.4th 50, 53–54 & n.22 (2d Cir. 2023), United States v. Morris, 61 F.4th 311, 317–20 (2d Cir. 2023) and Gomez v. United States, No. 21-2632, 2023 WL 8046326, at *7 (2d Cir. Nov. 21, 2023) control and when coupled with the procedural default rule foreclose his section 2255 challenge. (ECF 856.) Brito maintains that Pastore II and Davis were wrongly decided, and he thus stands on his challenge but does not dispute that this Court is bound by controlling precedent. The Court will deny Brito’s section 2255 motion. The Motion for Sentence Reduction A. Exhaustion Provided the exhaustion requirement is met, a court may reduce a defendant’s sentence if it finds that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i). Brito applied to the Warden of the facility for a sentencing reduction (ECF 760-7) and the request was denied (ECF 760-8). He filed his motion for a sentencing reduction more than 30 days after the denial. Thus, he has satisfied the statutory exhaustion requirement. B. Standard For Granting a Reduction 1. Extraordinary and Compelling Reasons. Section 3582(c) explicitly prohibits a modification of a sentence unless one of the limited exceptions applies. Brito invokes the “extraordinary and compelling reasons” exception. 18 U.S.C. §3582(c)(1)(a)(i). In reviewing a motion invoking this exception, the Court may consider all circumstances in combination or in isolation, except that rehabilitation alone, may not be the ground for a reduction. See United States v. Brooker, 976 F.3d 228, 237-38 (2d Cir. 2020). A Policy Statement issued by the United States Sentencing Commission effective November 1, 2023 present helpful guidance to a Court considering a motion to reduce a sentence for extraordinary and compelling reasons. U.S.S.G. §1B1.13 (amended eff. Nov 1, 2023.) The Guideline address in some detail considerations relating to the “Medical Circumstances of the Defendant,” “Age of the Defendant,” “Family Circumstances of the Defendant,” “Victim of Abuse,” “Unusually Long Sentence” and “Other Reasons.” The Policy Statement makes plain that the extraordinary and compelling reason “need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.” U.S.S.G. §1.B1.13(e). The Policy Statement is silent whether a circumstance that was known and considered by the judge at the time of sentencing may qualify as an extraordinary and compelling reason for a sentence reduction. It would be a rare case that a mitigating circumstance expressly taken into account by the sentencing judge in arriving at, for example, a below-Guidelines sentence could after the passage of time amount to an extraordinary and compelling reason for a sentence reduction. One such rare case was before Judge McMahon who concluded that a reduction was warranted based upon an unusual set of facts known and considered at the time of sentencing, but which took on new significance upon further reflection. See United States v. Cromitie, No. 09 CR 558-01 (CM), 2024 WL 216540, at *6 (S.D.N.Y. Jan. 19, 2024) (“My misgivings about how the Government ensnared and then arranged things…factored significantly in my decision not to sentence them to more than the mandatory minimum.”) In finding extraordinary and compelling circumstances, Judge McMahon invoked the “Other Reasons” exception under the Policy Statement.3 Brito focuses largely upon his youthful age, limited mental capacity at the time of the crime and extremely difficult upbringing. Brito was charged in a superseding Juvenile Information with a host of crimes including participating in a racketeering enterprise and possession and use of a firearm in furtherance of an attempted murder. Memorandum & Order of July 19, 2012. (ECF 134.) He was alleged to have sold crack and marijuana as part of the Cortland Avenue Crew (“CAC”). Brito was alleged also to be a member of a subgroup with an affiliation with CAC known as “God’s Favorite Children” (“GFC”). GFC members had an ongoing rivalry with the Maria Lopez gang that erupted into violence. On July 7, 2011, Brito and another individual shot at a Maria Lopez gang member but wounded a bystander. Brito joined GFC at age 13, associated himself with the criminal activity of CAC before his seventeenth birthday and shot a bystander in an attempt to murder a rival gang member shortly before his eighteenth birthday. Judge Pauley noted that “His father is missing, and his mother is a codefendant in this case. Thus, [Brito] has no biological family to return to. Given his track record, GFC is the only ‘family’ he would return to. As a result, rehabilitation is unlikely.” (ECF 134 at 6.) Judge Pauley also considered Brito’s mental capacity. Dr. Sanford L. Drob, a clinical and forensic psychologist, concluded that Brito had an I.Q. of 74 with language deficiencies but not warranting a diagnosis of “Mental Retardation.” (Id. at 10.) Dr. Drob opined that Brito had “Borderline Personality Tendencies, Depressive Affect and Self-Devaluation.” (Id.) Judge Pauley concluded, among other things, that he had the capacity to conform his conduct to the law (id. at 11.) and granted the government’s application to transfer Brito for prosecution as an adult pursuant to 18 U.S.C. §5032. Brito’s plea allocution is quoted above. The PSR reflected that Victim-4 had fully recovered. (PSR 55.) At sentencing, Brito was also held responsible for distributing between 240 grams and 840 grams of crack cocaine. (Id. 68.) His criminal history reflected convictions for criminal possession of a firearm (.22 caliber handgun) (age 14), criminal possession of marijuana in the fifth degree (age 14), unlawful possession of marijuana (age 16) and criminal possession of a controlled substance in the seventh degree (age 17). (Id. at
