Simmons v. United States

Opinion

ensCTRON! UNITED STATES DISTRICT COURT | ELECTRONICALIY FILED □□ SOUTHERN DISTRICT OF NEW YORK : DOC #: x I’) \TE FILED: 2(_|| JUSTIN SIMMONS, eee

Petitioner, 18 CV 843 (CM) -against- 10 CR 391-47 (CM) UNITED STATES OF AMERICA, Respondent. DECISION ON PETITIONER’S MOTION FILED PURSUANT TO 28 UIS.C. § 2455 AND ORDER SETTING DATE FOR “DAVIS VACATURE” AND RESENTENC G

McMahon, J.: On September 13, 2011, indictment S7 10 Cr. 391 (CM) was unsealed, charging Justin

Simmons in eight counts (and a variety of other defendants in various counts). Sinjmons was

charged with: (1) participating in a racketeering enterprise, in violation of 18 U.S.C.§§ 1961

and 1962(c) (Count One); (2) participating in a racketeering conspiracy, in violation of 1 8U.S.C.

§ 1962(d) (Count Two); (3) participating in a conspiracy to commit murder Tyrik Legette in aid

of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count Five); (4) murdering T rik Legette

in aid of racketeering, and aiding and abetting the same, in violation of 18 U.S.C.§§]1959(a)(1)

and 2 (Count Six); (5) assaulting Jonathan Maldonado in aid of racketeering, andlaiding and

abetting the same, in violation of 18 U.S.C. §§ 1959(a)(3) and 2 (Count Fifteen); (6) participating

in a conspiracy to distribute and possess with intent to distribute 280 grams and more of crack

cocaine, in violation of 21 U.S.C. § 846 (Count Seventeen); (7) using and carrying firearms

during and in relation to, and possessing firearms in furtherance of, a crack-cocaine distribution

conspiracy, which firearms were discharged, and aiding and abetting the same, in \violation of

18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Twenty-Four); and (8) using and carryi 2 a firearm

during and in relation to, and possessing a firearm in furtherance of, the assault fin aid of

racketeering charged in Count Fifteen, which firearm was discharged, and aiding and abetting

the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924()(1)(C)(), and 2 (Count Twenty-

Nine). On June 17, 2013, a jury found Simmons guilty on Counts Two (RICO cohspiracy), Eleven (narcotics conspiracy involving at least 280 grams of crack), and Thirteen and Seventeen

(use of firearms in furtherance of the narcotics conspiracy and in furtherance of the RICO counts),

and not guilty on Counts One (RICO), Five and Six (conspiracy to murder and murder), and

Eleven and Sixteen (assault and related use of a firearm).

On March 18, 2014, this Court sentenced Simmons to the mandatory minimum of 50

years’ imprisonment, to be followed by 10 years’ supervised release, a $10,000 fine,jand a

mandatory $400 special assessment. Before the Court is petitioner Simmons’ pro se motion to vacate, set aside or|correct

his conviction and sentence pursuant to 28 U.S.C. § 2255..Simmons makes multiple

arguments, most of which have to do with Count Seventeen. Simmons supplemented his

original motion, with the permission of the Court, to assert that Count Seventeen— hich is

predicated ona racketeering conspiracy as a crime of violence—should be vacated in|light of

the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), which held

that Section 924(c)’s so-called “risk-of-force clause,” 18 U.S.C. § 924(c)(3)(B), 1s

unconstitutionally vague. (Docket Entries 1825, 1844).

The Government filed a response consenting “to a vacatur of Count Seventgen, in light

of Davis and United States v. Barrett, 937 F.3d 126, 127-28 (2d Cir. 2019), and a re entencing

on Simmons’s remaining counts of conviction.” It is the Government’s position |

Simmons’ arguments insofar as they relate to the remaining counts of conviction are gither

substantively meritless or, in one case, procedurally barred. On February 25, 2021, the Court appointed Lorraine Gauli-Rufo from the coprt’s CJA

panel, to represent Simmons in connection with his § 2255 motion. See Court Ordgr, 10 CR

391 (CM), Docket Entry 1919. On June 7, 2021, Counsel filed a letter supplementing immons’

pro se motion, asking the Court to allow Simmons to withdraw all but his Davis challenge to

Count Seventeen:

Simmons respectfully requests permission to withdraw the following claims:

(1) vacating Count Thirteen (18 USC § 924 (c) gun possession in furtherance pf a drug conspiracy charge) because the aiding and abetting basis for the conviction violated Mr. Simmons’ Fifth and Sixth Amendment rights of the U.S. Constitution; (2) ineffective assistance of counsel as to Mr. Kirton during Mr. Simmons’ tria and sentencing; and (3) ineffective assistance of counsel as to Mr. Greenwald on direct appeal. Simmons Motion, Docket No. 11, pp 5, 8, 10, 13-16. Mr. Simmons’ remaining claims all deal with his request for this Court to vacate his conviction and sentence on Count Seventeen of the superseding indictment (18 USC § 924(c) possession of a firearm in furtherance of a RICO conspiracy) injlight of United States v. Davis, 139 S. Ct. 2319 (2019) and United States v. Barrett, 937 F. 3d 126, 127-28 (2d Cir. 2019). The Government concedes that Count Seventeen should be vacated based upon Mr. Simmons’ motion. Govt. Br., Docket No. 33, at p. 27. Simmons Supplemental Motion, (Docket Entry 1942). Simmons’s motion to drop all but his Davis challenge to Count Seventeen is

granted—his claims unrelated to Count Seventeen are denied. As to Count Seventeen, the

Court agrees with the Government and Simmons that Davis requires Simmons’s conv ction and sentence be vacated, and the count dismissed.

Accordingly, Mr. Simmons will be produced in court on September 22, nl at

11:00 a.m., for the purpose of (1) vacating his conviction and sentence on Count Seventeen,

(2) dismissing Count Seventeen, (3) vacating his sentence on the remaining counts, resentencing him on the remaining counts of conviction.! The Probation ~~ is

directed to prepare a supplemental Presentence Investigation Report by September 1, 2 21.

Sentencing submissions by the parties are due by September 15, 2021. This constitutes the decision and order of the Court. Dated: June 9, 2021

Colleen McMahon District Court Judge ~

, | Defendant should be aware that, “defendants whose § 924(c) convictions are overtumed . .. will no even necessarily receive lighter sentences: As [the Second Circuit] has noted, when a defendant’s § 924(c)}conviction Is invalidated, courts of appeals ‘routinely’ vacate the defendant’s entire sentence on all counts ‘so that the district court may increase the sentences for any remaining counts’ if such an increase is warranted.” Davis at 2336, quotin Dean v. United States, 137 S. Ct. 1170, 1176 (2017).