19-1477
2d Cir.Jul 9, 2021Background
- Oussama Kassir was convicted in 2009 of multiple terrorism-related offenses and sentenced to concurrent terms, including two life sentences (Counts 7 and 12) and a 20-year term for distributing explosives-related information under 18 U.S.C. § 842(p)(2)(A) (Count 13).
- In 2018 the Supreme Court decided Sessions v. Dimaya, invalidating the § 16(b) residual clause as unconstitutionally vague; related void-for-vagueness rulings include Johnson and Davis.
- Kassir filed a pro se § 2255 motion in 2019 arguing his § 842(p) conviction must be vacated under Dimaya; the district court denied the motion as untimely.
- This Court granted a certificate of appealability on timeliness/retroactivity and on whether the § 842(p) conviction rests on a § 16(b) "crime of violence."
- The Government did not dispute timeliness on appeal and did not contest the substantive Dimaya argument; it argued alternatively that vacating the § 842(p) conviction would not be cognizable relief because Kassir would remain in custody on concurrent life terms.
- The Second Circuit held the discretionary concurrent-sentence doctrine applies on collateral review and exercised its discretion to decline relief because vacating the 20-year sentence would not shorten Kassir’s custody; the judgment was affirmed without prejudice to renewal if Kassir’s life sentences are later invalidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of concurrent-sentence doctrine on collateral review | Kassir sought merits review of his Dimaya-based § 842(p) challenge | Govt argued relief under § 2255 is not cognizable if vacatur would not shorten custody | Court: Doctrine applies on § 2255 review; court may decline to reach merit where vacatur won't reduce custody (declined review here) |
| Timeliness/retroactivity of Dimaya for § 2255 | Kassir: motion timely (filed within one year of Dimaya) | District court: untimely; Govt abandoned timeliness on appeal | Court: declined to resolve timeliness (Government abandoned argument on appeal) |
| Merits of Dimaya challenge to § 842(p) conviction | Kassir: § 842(p) invalid because it relies on § 16(b) residual clause struck in Dimaya | Govt did not contest substance but argued lack of cognizable relief given concurrent life terms | Court: Did not reach merits because vacating the 20-year count would not shorten imprisonment; affirmed without prejudice to renewal if life sentences later set aside |
Key Cases Cited
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (held § 16(b) residual clause void for vagueness)
- Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause; announced new substantive rule)
- United States v. Davis, 139 S. Ct. 2319 (2019) (struck § 924(c) residual clause for vagueness)
- Ray v. United States, 481 U.S. 736 (1987) (limited concurrent-sentence doctrine on direct appeal due to separate assessments)
- Rutledge v. United States, 517 U.S. 292 (1996) (special assessment can be collateral consequence sustaining appeal)
- United States v. Charles, 932 F.3d 153 (4th Cir. 2019) (applied concurrent-sentence doctrine in § 2255 context)
- Oslund v. United States, 944 F.3d 743 (8th Cir. 2019) (declined § 2255 review where petitioner still serving unchallenged life terms)
- United States v. Vargas, 615 F.2d 952 (2d Cir. 1980) (articulated multi-factor test for applying concurrent-sentence doctrine)
- Santana-Madera v. United States, 260 F.3d 133 (2d Cir. 2001) (held harmless-error review applies in § 2255 proceedings)
- Benton v. Maryland, 395 U.S. 784 (1969) (discussed concurrent-sentence doctrine as judicial convenience)