Shabazz v. United States

923 F.3d 82
Court of Appeals for the Second Circuit·Decided April 26, 2019·No. Docket No. 17-167; August Term, 2017·Published·Cited by 8 cases

Opinion

LEVAL, Circuit Judge:

*83Petitioner Al-Malik Fruitkwan Shabazz petitions for rehearing of our decision of January 4, 2019, in which we ruled that his prior Connecticut convictions for robbery under Con. Gen. Stat. § 53a-133 qualify as predicate convictions under the Force Clause of the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e), and reinstated his original ACCA-based sentence. See Shabazz v. United States , 912 F.3d 73 (2d Cir. 2019). He contends that our disposition is incompatible with our prior holding in Villanueva v. United States , 893 F.3d 123 (2d Cir. 2018) and with the Supreme Court's ruling in Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), and that we could not lawfully reinstate the original sentence that may have been imposed in reliance on an ACCA provision since found to be unconstitutional, because such reliance would have been a "structural error" not amenable to harmless error analysis. We assume familiarity with the facts set forth in the January 4 opinion. We reject Shabazz's arguments and deny his motion.

1. Shabazz misreads Villanueva . While he is correct that in Villanueva we remanded for resentencing, rather than direct the District Court to reimpose the original sentence that had impermissibly relied on ACCA's now-defunct "Residual Clause," Johnson v. United States , --- U.S. ----, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) (" 2015 Johnson ") (striking down the Residual Clause as unconstitutionally vague), we neither ruled nor suggested that the latter course would have been impermissible, much less ruled that future courts in similar circumstances should follow the same course. The decision to remand for resentencing was discretionary. See Villanueva , 893 F.3d at 132 n.12 ("Because we have remanded for resentencing, we need not determine whether the District Court's pre- Johnson error of using the residual clause in imposing the original sentence was a structural or harmless error."). While it is true that we observed that the district court's duty on remand would be "to sentence the defendant as he stands before the court on the day of sentencing," id. at 132 (quoting United States v. Bryson , 229 F.3d 425, 426 (2d Cir. 2000) ), that obligation was a consequence of our decision to remand for a full resentencing. It was not compelled by the fact that the original sentence was passed in reliance on a statutory provision later found to be unconstitutional, nor by the fact that the district court had vacated the original sentence (based on its erroneous conclusion that the Force Clause did not apply to Villanueva's convictions).

2. Shabazz also misconstrues Pepper . In Pepper , the Court of Appeals for the Eighth Circuit had remanded to a district court for resentencing in light of the Supreme Court's intervening decision in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On remand, the district court granted a downward variance based on evidence of the defendant's rehabilitation in prison since the time of the original sentence. The Eighth Circuit reversed, holding that "post-sentence rehabilitation is an impermissible *84factor to consider in granting a downward variance." Pepper , 562 U.S. at 484-85, 131 S.Ct. 1229 (quoting United States v. Pepper , 518 F.3d 949, 953 (8th Cir. 2008) ). The Supreme Court reversed the Eighth Circuit, concluding that the Court of Appeals "erred in categorically precluding the District Court from considering evidence of [the defendant's] postsentencing rehabilitation after his initial sentence was set aside on appeal." Id. at 504, 131 S.Ct. 1229. The Supreme Court explained that, upon a remand for a plenary resentencing, a sentencing court must be allowed to consider the mandatory sentencing factors in 18 U.S.C. § 3553(a) as of the time of imposition of the new sentence, and, if appropriate, to grant a departure or variance based on the defendant's conduct since the original sentencing. Pepper expressly clarified that it did not "mean to preclude courts of appeals from issuing remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding." Id. at 505

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Shabazz v. United States, 923 F.3d 82 (2d Cir. 2019).

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