Section 2255 confers on district courts “broad and flexible power” to craft an 6 appropriate remedy
How later courts described this case
- Section 2255 confers on district courts “broad and flexible power” to craft an 6 appropriate remedy
- holding that the standard of review for a district court’s determination of the 4 appropriate remedy in a § 2255 is abuse of discretion
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
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UNITED STATES OF AMERICA,
8 Case No. 5:11-cr-00355-EJD-17
Plaintiff,
9 ORDER GRANTING DEFENDANT'S
v. SECOND § 2255 MOTION TO VACATE
10 AND CORRECT CONVICTION AND
JOSE ANGEL MORENO, SENTENCE
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Defendant. Re: Dkt. No. 983
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13 Before the Court is Defendant Jose Angel Moreno’s second 28 U.S.C. § 2255 motion to
14 vacate and correct his conviction and sentence. 28 U.S.C § 2255 Second Motion to Vacate
15 (“Mot.”), Dkt. No. 983. On October 6, 2020, the Government filed its response to Defendant’s
16 motion and requested that the Court resentence Defendant. Government’s Response to 2255 and
17 Request for Plenary Re-Sentencing (“Response”), Dkt. No. 1035. Thereafter, on October 7, 2020,
18 Defendant filed his reply. Reply to Government’s Response to § 2255 Motion and Request for
19 Plenary Resentencing (“Reply”), Dkt. No. 1036. For the foregoing reasons, Defendant’s motion is
20 GRANTED.
21 I. BACKGROUND
22 On May 5, 2016, Defendant entered into a plea agreement and pled guilty to two charges:
23 racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count 1) and use or possession of a
24 firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2
25 (Count 4). See Mot. On August 4, 2016 the Court sentenced Defendant to 160 months in custody.
26 Id. Pursuant to the sentencing order, Defendant received 100 months for Count 1 and a 60-month
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Case No.: 5:11-cr-00355-EJD-17
1 mandatory consecutive sentence for Count 4. Dkt. No. 606. Defendant is currently incarcerated at
2 USP Tucson, with a scheduled release date of July 20, 2025. See Federal Bureau of Prisons
3 Inmate Locator, https://www.bop.gov/inmateloc/ (last visited Oct. 28, 2020).
4 In June 2019, the United States Supreme Court held that 18 U.S.C. § 924(c)’s residual
5 clause (which Defendant was charged and sentenced under) is unconstitutionally vague. United
6 States v. Davis, 139 S. Ct. 2319, 2323-24 (2019). In light of Davis, Defendant moves under 28
7 U.S.C. § 2255 for his conviction and sentence to be vacated, set aside, and corrected.
8 II. LEGAL STANDARD
9 A federal sentencing court is authorized to grant relief if it concludes that “the sentence
10 was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a).
11 If the court finds that relief is warranted, it must vacate and set aside the judgment and then
12 discharge the prisoner, resentence him, grant a new trial, or correct the sentence as may appear
13 appropriate. Id. § 2255(b). A court may retroactively apply a constitutional rule of criminal
14 procedure to a prisoner’s conviction and sentence if: (1) it places a class of conduct beyond the
15 authority of the criminal law to proscribe or (2) it announces a watershed rule of criminal
16 procedure. See United States v. Brown, 415 F. Supp. 3d 901, 904 (N.D. Cal. 2019).
17 III. DISCUSSION
18 On June 24, 2019, the United States Supreme Court held that the residual clause—the very
19 statute Defendant was convicted under for Count Four—is unconstitutionally vague. Davis, 139
20 S. Ct. at 2323-24. The Government does not dispute that Davis applies retroactively or that it
21 requires the Court to vacate Defendant’s § 924(c) conviction, i.e., Count Four. See Response at 1.
22 Accordingly, the Court GRANTS Defendant’s § 2255 motion and vacates Defendant’s §
23 924(c)(1)(A) and 2 conviction and sentence.
24 The Government instead argues that this Court should resentence Defendant on the
25 remaining count of conviction, i.e. Count One. See id. But, “the usual remedy is to set aside the
26 counts on which illegal convictions were obtained and to leave untouched the valid convictions.”
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1 United States v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999). The court has “wide discretion” to
2 issue whatever remedy it deems “appropriate.” Troiano v. United States, 918 F.3d 1082, 1086
3 (9th Cir. 2019) (holding that the standard of review for a district court’s determination of the
4 appropriate remedy in a § 2255 is abuse of discretion); United States v. Handa, 122 F.3d 690, 691
5 (9th Cir. 1997) (Section 2255 confers on district courts “broad and flexible power” to craft an
6 appropriate remedy). Just recently, this Court declined to hold a resentencing hearing in
7 two comparable cases. See United States v. Cardenas, 2019 WL 7020193 (N.D. Cal. Dec. 20,
8 2019); see also United States v. Cisneros, 2020 WL 4349825 (N.D. Cal. July 29, 2020). As in
9 Cardenas and Cisneros, there is no need to hold a resentencing hearing because the Court can
10 easily excise the 18 U.S.C. § 924(c) conviction and sentence, while leaving the 18 U.S.C.
11 § 1962(d) count intact. See id. at *2; see also Brown, 415 F. Supp. 3d at 907 (declining to hold a
12 resentencing hearing due to the “straightforward nature of correcting [the defendant’s] conviction
13 and sentence”). Indeed, “[t]he government recognizes that the Court’s decision whether to
14 conduct a plenary resentencing is within the Court’s sound discretion.” Response at 1.
15 Here, the Court can easily correct Defendant’s conviction and sentence without having a
16 sentencing hearing. Defendant received 100 months for count 1 and a 60-month consecutive
17 sentence for Count 4. Defendant is currently serving his 100-month sentence. He has not yet
18 begun serving his 60-month sentence. The Court can thus excise the 60-month sentence and
19 correct Defendant’s conviction and sentence without having a resentencing hearing. See Brown,
20 415 F. Supp. 3d at 907.
21 IV. CONCLUSION
22 For the foregoing reasons, Defendant’s 18 U.S.C. § 924(c) conviction and sentence are
23 vacated. Nothing in this Order shall be construed as affecting Defendant’s remaining
24 incarceration.
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Case No.: 5:11-cr-00355-EJD-17
1 IT IS SO ORDERED.
2 Dated: October 29, 2020
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EDWARD J. DAVILA
4 United States District Judge
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Case No.: 5:11-cr-00355-EJD-17
28 ORDER GRANTING DEFENDANT’S SECOND § 2255 MOTION TO VACATE AND
CORRECT CONVICTION AND SENTENCE