55 F.4th 367
2d Cir.2022Background
- Jose Peña was convicted after trial of three §1958 murder‑for‑hire counts (Counts 4–6) and two §924(j) firearm‑murder counts (Counts 7–8) and sentenced to five concurrent life terms.
- The district court gave erroneous jury instructions on the §1958 counts by failing to require the jury to find that death resulted for the death/life sentencing enhancement, though the indictment did allege death.
- After the Supreme Court decision in United States v. Davis, Peña moved under 28 U.S.C. §2255; the government agreed Counts 7–8 (§924(j)) could not stand and the district court vacated those convictions but declined to conduct a de novo resentencing.
- Peña sought reconsideration, arguing de novo resentencing was mandatory under Quintieri/Rigas and that, because of the jury‑instruction error, his §1958 exposure was limited to the 10‑year statutory maximum; the district court denied relief and Peña appealed.
- The Second Circuit affirmed, holding §2255 vests district courts with discretion to choose remedies (vacatur, resentencing, correction, etc.), that de novo resentencing is not mandatory in the §2255 context, and that declining to resentence here was not an abuse of discretion because any resentencing would have been ministerial and the instructional error was harmless.
Issues
| Issue | Plaintiff's Argument (Peña) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether de novo resentencing is mandatory in §2255 proceedings after vacatur of some counts | Rigas/Quintieri require de novo resentencing whenever a conviction is vacated | §2255(b) provides a menu of discretionary remedies; Quintieri/Rigas apply to direct appeals, not §2255 | De novo resentencing is not mandatory; §2255 grants district courts discretion to select appropriate relief |
| Whether district court abused its discretion by denying de novo resentencing here | Denial was erroneous because jury‑instruction defects could reduce §1958 exposure to 10 years, so resentencing could change the sentence | Vacatur of §924(j) counts does not affect mandatory life sentences on the §1958 counts; resentencing would be ministerial | No abuse of discretion; denial was proper because resentencing would have been a mere formality and would not change Peña’s life terms |
| Whether the erroneous jury instruction on §1958 (not requiring a finding that death resulted) limits Peña’s §1958 sentences to the 10‑year base offense | The instruction error means the jury did not find the death‑result element, so Peña cannot receive life sentences on §1958 counts | The error is subject to harmless‑error review; indictment alleged death and there was overwhelming evidence death resulted (and jury convicted §924(j) counts) | The district court erred in instructing but the error was harmless beyond a reasonable doubt; the jury would have found death resulted, so life sentences stand |
| Whether Peña may raise the §1958 sentencing‑element challenge in §2255 now (procedural default) | Peña framed the issue as abuse of discretion to avoid default | Peña failed to raise the jury‑instruction claim on direct appeal; prior §2255 efforts foreclose excuse; no cause or actual innocence shown | The claim is procedurally defaulted; Peña did not establish cause and prejudice or actual innocence, so he cannot relitigate the sentencing‑element claim |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (narrowed the definition of "crime of violence" for §924(c) predicates)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory maximum must be found by a jury)
- Alleyne v. United States, 570 U.S. 99 (2013) (facts raising mandatory minimum must be submitted to the jury)
- Burrage v. United States, 571 U.S. 204 (2014) (death‑result enhancement increases sentencing exposure and is an element to be found beyond a reasonable doubt)
- United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002) (in direct appeals, resentencing usually should be de novo when convictions are reversed)
- United States v. Rigas, 583 F.3d 108 (2d Cir. 2009) (applied Quintieri default rule in the direct‑appeal context)
- United States v. Gordils, 117 F.3d 99 (2d Cir. 1997) (§2255 authorizes district courts to exercise discretion to resentence as may appear appropriate)
- United States v. Augustin, 16 F.4th 227 (6th Cir. 2021) (district courts have broad discretion under §2255 to vacate unlawful convictions without conducting de novo resentencing)
- United States v. Confredo, 528 F.3d 143 (2d Cir. 2008) (Apprendi/Alleyne errors are subject to harmless‑error review)