DeJesus v. United States of America

DeJesus v. United States of America

Plaintiff:	Fidel DeJesus
Defendant:	United States Of America
Case Number:	1:2016cv04878
Filed:	June 23, 2016
Court:	US District Court for the Southern District of New York
Office:	Foley Square Office
County:	New York
Presiding Judge:	Colleen McMahon
Nature of Suit:	Motions to Vacate Sentence
Cause of Action:	28 U.S.C. § 2255
Jury Demanded By:	None

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Date Filed	Document Text
December 10, 2019	Filing 11 ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C. § 2255 re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Fidel DeJesus. Accordingly, in assessing whether the force clause applies to the defendant's 924(c) conviction as grounded in assault in aid of racketeering, the modified categorical approach applies and the Court may consider the relevant Shepard documents to determine whether the defendant committed an intentional variety of state assault-which would satisfy the force clause in requiring the intentional use of force. Here, the defendant's plea allocution makes clear that he intended to commit assault. As the defendant stated at the time of his plea, "I was walking and the Latin Kings started t o follow me so I pulled out the weapon and I shot at them in their direction. The plan was that I was coming with another friend and we wanted to assault them. When I pulled out the weapon, they ran away. I pulled out the weapon, I fired it, and the y left." (Plea Tr. 17:7-12 (emphasis added).) The defendant clearly admitted to carrying the firearm andintending to commit assault. Therefore, the intent subsections of the New York assault statute apply, the defendant's predicate assault has as "an element the use, attempted use, or threatened use of physical force against the person or property of another," and the defendant's conviction is proper under Section 924(c) and unaffected by Davis. DeJesus' Motion is D enied. Because the Petitioner has not made a substantial showing of denial of a constitutional right, a certification of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d Cir.1997). The Court further finds, pursuant to 28 U. S.C. § 1915(a)(3), that any appeal from an order denying DeJesus' motion would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 (1962). This constitutes the decision and order of the Court. (Signed by Judge Colleen McMahon on 12/6/2019) (mml)

Date Filed

Document Text

December 10, 2019

Filing 11 ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C. § 2255 re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Fidel DeJesus. Accordingly, in assessing whether the force clause applies to the defendant's 924(c) conviction as grounded in assault in aid of racketeering, the modified categorical approach applies and the Court may consider the relevant Shepard documents to determine whether the defendant committed an intentional variety of state assault-which would satisfy the force clause in requiring the intentional use of force. Here, the defendant's plea allocution makes clear that he intended to commit assault. As the defendant stated at the time of his plea, "I was walking and the Latin Kings started t o follow me so I pulled out the weapon and I shot at them in their direction. The plan was that I was coming with another friend and we wanted to assault them. When I pulled out the weapon, they ran away. I pulled out the weapon, I fired it, and the y left." (Plea Tr. 17:7-12 (emphasis added).) The defendant clearly admitted to carrying the firearm andintending to commit assault. Therefore, the intent subsections of the New York assault statute apply, the defendant's predicate assault has as "an element the use, attempted use, or threatened use of physical force against the person or property of another," and the defendant's conviction is proper under Section 924(c) and unaffected by Davis. DeJesus' Motion is D enied. Because the Petitioner has not made a substantial showing of denial of a constitutional right, a certification of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d Cir.1997). The Court further finds, pursuant to 28 U. S.C. § 1915(a)(3), that any appeal from an order denying DeJesus' motion would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 (1962). This constitutes the decision and order of the Court. (Signed by Judge Colleen McMahon on 12/6/2019) (mml)

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Plaintiff: Fidel DeJesus
Represented By:	Peggy Cross-Goldenberg(Designation Public Defender or Community Defender Appointment)
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