Simmons v. United States of America, No. 1:2018cv00843 - Document 44 (S.D.N.Y. 2021)

Court Description: DECISION ON PETITIONER'S MOTION FILED PURSUANT TO 28 U.S.C. § 2255 ANDORDER SETTING DATE FOR "DAVIS VACATURE" AND RESENTENCING: Accordingly, Mr. Simmons will be produced in court on September 22, 2021 at 11:00 a.m., for the purpos e of (1) vacating his conviction and sentence on Count Seventeen,(2) dismissing Count Seventeen, (3) vacating his sentence on the remaining counts, and(4) resentencing him on the remaining counts of conviction. The Probation Department is directed to prepare a supplemental Presentence Investigation Report by September 1, 2021. Sentencing submissions by the parties are due by September 15, 2021. This constitutes the decision and order of the Court. And as set forth herein. (Signed by Judge Colleen McMahon on 6/09/2021) (ama)

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Simmons v. United States of America Doc. 44 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x \· CSDC SONY : .DOCUMENT \ ELECTRO~lCAL Y FILED f DOC#: Il T). \TE F-IL-E-_D_:_-4-+,--4----- JUSTIN SIMMONS, Petitioner, -against- 18 CV 843 (CM) IO CR 391-47 (CM) UNITED STATES OF AMERICA, Respondent. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x DECISION ON PETITIONER'S MOTION FILED PURSUANT TO 28 U.S.C. § 2 55 AND ORDER SETTING DATE FOR "DAVIS VACATURE" AND RESENTENC G McMahon, J.: On September 13, 2011, indictment S7 IO Cr. 391 (CM) was unsealed, char ing Justin Simmons in eight counts (and a variety of other defendants in various counts). Si charged with: (I) participating in a racketeering enterprise, in violation of 18 U.S . . §§ 1961 and 1962(c) (Count One); (2) participating in a racketeering conspiracy, in violation o 18 U.S.C. § I 962(d) (Count Two); (3) participating in a conspiracy to commit murder Tyrik Le ette in aid of racketeering, in violation of 18 U.S.C. § I 959(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. §§ l 959(a)(l) and 2 (Count Six); (5) assaulting Jonathan Maldonado in aid of racketeering, and aiding and abetting the same, in violation of 18 U.S.C. §§ l 959(a)(3) and 2 (Count Fifteen); (6) p rticipating in a conspiracy to distribute and possess with intent to distribute 280 grams and m, re of crack cocaine, in violation of 21 U.S.C. § 846 (Count Seventeen); (7) using and carryi g firearms during and in relation to, and possessing firearms in furtherance of, a crack-cocaine istribution conspiracy, which firearms were discharged, and aiding and abetting the same, in iolation of 18 U.S.C. §§ 924(c)(l)(A) and 2 (Count Twenty-Four); and (8) using and carryi g a firearm Dockets.Justia.com during and in relation to, and possessing a firearm in furtherance of, the assault n aid of racketeering charged in Count Fifteen, which firearm was discharged, and aiding an abetting the same, in violation of 18 U.S.C. §§ 924(c)(l)(A)(iii), 924(c)(l)(C)(i), and 2 (Coun TwentyNine). On June 17, 2013, a jury found Simmons guilty on Counts Two (RICO co spiracy), Eleven (narcotics conspiracy involving at least 280 grams of crack), and Thirteen and (use of firearms in furtherance of the narcotics conspiracy and in furtherance of the RIC counts), and not guilty on Counts One (RICO), Five and Six (conspiracy to murder and m Eleven and Sixteen (assault and related use of a firearm). On March 18, 2014, this Court sentenced Simmons to the mandatory minimu of 50 years' imprisonment, to be followed by 10 years' supervised release, a $10,000 fine, and a mandatory $400 special assessment. Before the Court is petitioner Simmons' prose motion to vacate, set aside o 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 supplemente his original motion, with the permission of the Court, to assert that Count Seventeen- hich is predicated on a 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), w ich held that Section 924(c)'s so-called "risk-of-force clause," 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague. (Docket Entries 1825, 1844). The Government filed a response consenting "to a vacatur of Count Sevent en, 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 Governmenrs position th t Simmons' arguments insofar as they relate to the remaining counts of conviction are ither substantively meritless or, in one case, procedurally barred. On February 25, 2021, the Court appointed Lorraine Gauli-Rufo from the co rt's CJA panel, to represent Simmons in connection with his § 2255 motion. See Court Ord r, l O 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 ch Henge to Count Seventeen: Simmons respectfully requests permission to withdraw the following claims: (1) vacating Count Thirteen (18 USC § 924 (c) gun possession in furtherance fa drug conspiracy charge) because the aiding and abetting basis for the convi violated Mr. Simmons' Fifth and Sixth Amendment rights of the 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 v cate his conviction and sentence on Count Seventeen of the superseding indictme ( 18 USC § 924(c) possession of a firearm in furtherance of a RICO conspiracy) in light 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 Seve teen should be vacated based upon Mr. Simmons' motion. Govt. Br., Docket No. 3, 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 Seventee , 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, 2021 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, and(4) resentencing him on the remaining counts of conviction. 1 The Probation Departm~ is directed to prepare a supplemental Presentence Investigation Report by September 1, 2d21. 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 1 Defendant should be aware that, "defendants whose§ 924(c) convictions are overturned ... will no necessarily receive lighter sentences: As [the Second Circuit] has noted, when a defendant's § 924(c) invalidated, courts of appeals 'routinely' vacate the defendant's entire sentence on all counts 'so that court may increase the sentences for any remaining counts' if such an increase is warranted." Davis Dean v. United States, 137 S. Ct. 1170, 1176(2017). even conviction is he district 2336, quotin

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