Simmons v. United States of America
Filing
44
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)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JUSTIN SIMMONS,
Petitioner,
-against-
18 CV 843 (CM)
IO CR 391-47 (CM)
UNITED STATES OF AMERICA,
Respondent.
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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
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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