Acosta v. United States
| Decision Date | 02 September 2019 |
| Docket Number | Criminal Case No. 1:03-cr-00011-MAT,Civil Case No. 1:16-cv-00401-MAT |
| Parties | SYLVESTRE ACOSTA, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of New York |
On December 17, 2004, movant Sylvestre Acosta ("Acosta") was convicted, in pertinent part, of three counts of using a firearm during a "crime of violence" in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Specifically, Counts 6 and 7 of the indictment charged Acosta with using a firearm in furtherance of deprivation of rights under color of law, in violation of 18 U.S.C. § 242; Count 9 charged Acosta with using a firearm in furtherance of a conspiracy against rights in violation of 18 U.S.C. § 241. Acosta has filed § 2255 motions challenging Counts 6, 7, and 9 pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015) ("2015 Johnson"), and United States v. Davis, 139 S. Ct. 2319 (2019) ("Davis"). Respondent, the United States of America ("the Government"), concedes that Count 9 should be vacated but argues that Counts 6 and 7 are still valid.
The § 2255 proceeding was transferred to the undersigned on September 17, 2017. For the reasons discussed below, the Court grants the § 2255 motions; vacates Counts 6, 7, and 9; orders Acosta released on bail; and transfers the case to the original sentencing judge, Hon. Richard J. Arcara, United States District Judge ("the Sentencing Court"), for a plenary resentencing proceeding.
On December 17, 2004, following a jury trial, Acosta was convicted of a violation of 18 U.S.C. § 242 (); two counts of felony violations of 18 U.S.C. § 242 (); a violation of 18 U.S.C. § 241 (); and three violations of 18 U.S.C. § 924(c) ()).1 Acosta was sentenced to one day's imprisonment for the deprivation of rights counts and an aggregate term of 45 years' imprisonment on the three § 924(c) counts (the mandatory minimum under the United States Sentencing Guidelines),those terms to be served consecutively.
On direct appeal, Acosta principally argued that (1) his § 924(c) conviction should be reversed because § 242 is not a crime of violence, and (2) his § 924(c) conviction should be reversed because § 241 also is not a crime of violence. The Second Circuit affirmed the convictions and sentences. United States v. Acosta, 470 F.3d 132 (2006) (per curiam) (); see also United States v. Acosta (summary order) (addressing Acosta's other appellate arguments). In particular, the panel in the published decision held that the offense of a deprivation of rights under color of law resulting in bodily injury or involving a dangerous weapon under 18 U.S.C. § 242 was a "crime of violence" for purposes of the offense of carrying a firearm during and in relation to any crime of violence, 470 F.3d at 136, and that the offense of conspiring to seek to injure, oppress, threaten, or intimidate any person in connection with exercising or enjoying constitutional rights under 18 U.S.C. § 241 was a crime of violence. Id. at 136-37. The Supreme Court denied certiorari. Acosta v. United States, 552 U.S. 1037 (2007).2
Acosta filed his first § 2255 motion on November 26, 2008, which the Sentencing Court denied in a written decision and order on September 27, 2010.
On May 20, 2016, Acosta timely filed a successive § 2255 motion, arguing that his § 924(c) sentences were illegal based on the Supreme Court's holding in 2015 Johnson that the residual clause of the ACCA was unconstitutionally vague. Acosta argued that since § 924(c)'s residual clause, § 924(c)(3)(B), is materially indistinguishable from the ACCA's residual clause, it likewise violates due process. See Docket No. 242. Acosta sought authorization from the Second Circuit, as required by 28 U.S.C. § 2255(h), to proceed with his successive § 2255 motion in this Court. See Acosta v. United States, No. 16-1492 (2d Cir.).
On June 8, 2018, the Second Circuit granted the motion to file a successive § 2255 motion, finding that Acost "made a prima facie showing that his claim satisfies § 2255(h)3 and warrants fuller exploration by the district court." Docket No. 248. The Second Circuit further observed that "[s]ection § 924(c)(3)(B) is essentially identical to 18 U.S.C. § 16(b), which was foundunconstitutional by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), largely based on the Supreme Court's analysis in [2015 ]Johnson." Docket No. 248, p. 1. Having found one claim that satisfied § 2255(h), the Second Circuit did not examine Acosta's other proposed claims. Id., p. 2.
Acosta then filed a Supplemental Memorandum of Law (Docket No. 255) in support of his successive § 2255 motion. The Government filed a Response (Docket No. 256) and a Supplemental Response (Docket No. 257). Acosta filed a Reply (Docket No. 259). On August 3, 2018, Acosta filed a Notice of Supplemental Authority (Docket No. 262), namely, United States v. Eshetu, Case No. 15-3020 (D.C. Cir. Aug. 3, 2018) (per curiam), wherein the D.C. Circuit joined the Tenth and Seventh Circuit Courts of Appeals in finding 18 U.S.C. § 924(c)'s residual clause unconstitutionally vague in light of the Supreme Court's decision in Dimaya, 138 S. Ct. at 1213, 1223 ().
On September 11, 2018, Acosta requested to stay the matter pending a decision from the Second Circuit as to whether to grant rehearing in United States v. Barrett, 14-2641-cr, 903 F.3d 166 (2d Cir. Sept. 10, 2018), in which the Second Circuit held that a Hobbs Act robbery conspiracy is a crime of violence under 18 U.S.C. § 924(c), thereby creating a circuit split with the D.C., Fifth, Seventh, and Tenth Circuits. The Government did not object to thestay request, which the Court granted on September 12, 2018 (Docket No. 264).
On June 28, 2019, the Supreme Court granted the petition for writ of certiorari in Barrett. See Barrett v. United States, 139 S. Ct. 2774 (2019). The Supreme Court vacated the judgment and remanded the case to the Second Circuit for further consideration in light of Davis, holding that, based on Johnson and Dimaya, 18 U.S.C. § 924(c)'s residual clause, § 924(c)(3)(B), is unconstitutionally vague. See Davis, 139 S. Ct. at 2325-36. On August 30, 2019, the Second Circuit issued a decision vacating Barrett's convictions based on Davis.
Acosta returned to this Court on August 2, 2019, filing a Supplemental § 2255 Motion (Docket No. 267). The Government filed a Response (Docket No. 269). Acosta filed a Reply and Motion for Release on Bail (Docket No. 270). The motions were submitted without oral argument on August 26, 2019.
Title 28 U.S.C., Section 2255(a) allows a prisoner in federal custody to move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The § 2255petitioner "bears the burden of proof by a preponderance of the evidence." Alli-Balogun v. United States, 114 F. Supp. 3d 4, 50 (E.D.N.Y. 2015) (citing Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000) () (citing Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978)).
Even if the petitioner can show that a constitutional error was committed, relief under § 2255 is unwarranted unless the error had a "substantial and injurious effect," Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), that resulted in "actual prejudice," id., to the petitioner. See Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (); see also, e.g., Cravens v. United States, 894 F.3d 891, 893 (8th Cir. 2018) () (quoting Brecht, 507 U.S. at 637; internal quotation marks omitted in original; citation omitted)). "When the record is evenly balanced as to whether a constitutional error had substantial and injurious effect or influence on the outcome, the error is not harmless." Cravens, 894 F.3d at 893 (quoting O'Neal v. McAninch, 513 U.S. 432, 435 (1995)).
In Count 9, Acosta was convicted of unlawfully using and carrying a firearm during and in relation to the crimes of violence pursuant to 18 U.S.C. § 241, which prohibits two or more persons" from "conspir[ing] to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same." 18 U.S.C. § 241.
In Davis, the Supreme Court considered the constitutionality of the residual clause of 18 U.S.C. § 924(c), § 924(c)(3)(B), which provides as follows:
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