Summary
granting motion to file successive § 2255 motion because movant's sentence was imposed prior to Booker and Beckles "did not clearly foreclose" movant's argument
Summary of this case from Nunez v. United StatesOpinion
16-2112 (L) 16-2458 (Con) 16-2698 (Con)
05-08-2017
Nelson Vargas, Petitioner, v. United States of America, Respondent.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of May, two thousand seventeen. Present: Robert A. Katzmann, Chief Judge, Richard C. Wesley, Peter W. Hall, Circuit Judges. Petitioner moves for: (1) recall of the mandate relating to the Court's order denying his motion for leave to file a successive 28 U.S.C. § 2255 motion; and (2) leave to file a successive § 2255 motion. He argues that Johnson v. United States, 135 S. Ct. 2551 (2015), has invalidated a certain provision of the United States Sentencing Guidelines, entitling him to a sentence reduction. Although Petitioner's motion may be barred, in whole or part, by 28 U.S.C. § 2244(b)(3)(E), we retain the authority to grant the requested relief sua sponte. See Triestman v. United States, 124 F.3d 361, 367 (2d Cir. 1997) ("[U]nder the AEDPA, a court of appeals retains the authority to order a rehearing sua sponte."). Upon due consideration, it is hereby ORDERED that the mandate is RECALLED, the Court's prior order denying leave to file a successive § 2255 motion is VACATED, and the motion for leave to file a successive § 2255 motion is GRANTED. See Blow v. United States, 829 F.3d 170 (2d Cir. 2016). Although the Supreme Court held in Beckles v. United States that "[b]ecause they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge," 137 S. Ct. 886, 894 (2017), Beckles did not clearly foreclose the argument that this reasoning is inapplicable to the Petitioner's circumstances, given that his sentence was imposed prior to United States v. Booker, 543 U.S. 220 (2005), which rendered the previously mandatory Guidelines discretionary. See Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring in the judgment) ("[T]he formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in [Booker] . . . may mount vagueness attacks on their sentences.") It is further ORDERED that the proceeding is TRANSFERRED to the district court. See 28 U.S.C. § 1631. The district court should consider in the first instance whether it should stay the proceeding pending decisions in potentially relevant cases. See, e.g., Dimaya v. Lynch, 137 S. Ct. 31 (2016) (order granting certiorari); United States v. Hill, 2d Cir. 14-3872; United States v. Hussain (Barrett), 2d Cir. 14-2641.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
/s/