Kassir v. United States

• Citation: 3 F.4th 556
• Decision Date: 09 July 2021
• Docket Number: No. 19-1477,August Term, 2020,19-1477
• Parties: Oussama KASSIR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

3 F.4th 556

Oussama KASSIR, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee

No. 19-1477

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: March 24, 2021

Decided: July 9, 2021

Daniel M. Perez, Law Offices of Daniel M. Perez, Newton, NJ, for Petitioner-Appellant.

David J. Robles, Assistant United States Attorney (Thomas McKay, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellee.

Before: Jacobs and Nardini, Circuit Judges.¹

William J. Nardini, Circuit Judge:

Petitioner-Appellant Oussama Kassir appeals from a judgment entered on May 15, 2019, in the United States District Court for the Southern District of New York (Torres, J .), denying his motion for relief pursuant to 28 U.S.C. § 2255. Kassir is currently serving multiple sentences, including two terms of life in prison, for various terrorism-related crimes. Kassir now argues that one of his convictions—for distributing information related to explosives, destructive devices, and weapons of mass destruction in violation of 18 U.S.C. § 842(p)(2)(A), which led to a 20-year prison term—should be vacated under the Supreme Court's 2018 decision in Sessions v. Dimaya .²

We hold that the discretionary concurrent sentence doctrine applies when a defendant collaterally attacks one of his convictions. In light of the facts of this case, we exercise our discretion to decline review of Kassir's claim. Even if his challenge were successful, our decision would not shorten the time Kassir must remain in custody because he remains subject to two concurrent life sentences.

Accordingly, we AFFIRM the district court's judgment without prejudice to Kassir renewing the claim if the validity of his concurrent life sentences changes in the future.

I. BACKGROUND

A. Kassir's Convictions and Sentencing

On May 12, 2009, Kassir was found guilty by a jury in the Southern District of New York of various counts of (1) providing and concealing material support and resources to terrorists, 18 U.S.C. §§ 2339A, 2339B (Counts 4, 6, 9, and 11); (2) conspiring to provide and conceal material support and resources to terrorists, 18 U.S.C. §§ 371, 2339A, 2339B (Counts 3, 5, 8, and 10); (3) conspiring to kill, kidnap, maim, and injure persons in a foreign country, 18 U.S.C. § 956 (Counts 7 and 12); and—most relevant for the present controversy—(4) distributing information relating to explosives, destructive devices, and weapons of mass destruction, 18 U.S.C. § 842(p)(2)(A) (Count 13). A few months later, on September 14, 2009, the district court (John F. Keenan, J .) sentenced Kassir to two terms of life imprisonment for conspiring to kill, kidnap, maim, and injure persons (Counts 7 and 12), 20 years of imprisonment for distributing information relating to explosives (Count 13), and various other terms of imprisonment, with all terms to run concurrently.³ This Court upheld Kassir's convictions on direct appeal,⁴ and Kassir is serving his sentences.

B. The Vagueness Cases and Kassir's Motion Under § 2255

On June 26, 2015, in Johnson v. United States , the Supreme Court invalidated the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), ruling that its definition of a "violent felony" was unconstitutionally vague.⁵ A year later, the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applied retroactively on collateral review.⁶

On April 17, 2018, the Supreme Court decided Sessions v. Dimaya , holding that the similarly worded residual clause of 18 U.S.C. § 16(b), the federal criminal code's definition of "crime of violence," was also impermissibly vague.⁷ The Court called the decision a "straightforward application" of Johnson .⁸ By the next year, the Supreme Court issued another void-for-vagueness decision, United States v. Davis , in which the Court struck the residual clause of 18 U.S.C. § 924(c) —another similarly worded definition of "crime of violence"—as unconstitutional.⁹

On March 18, 2019, Kassir, who was pro se at the time, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He argued that under Johnson and Dimaya , his conviction under 18 U.S.C. § 842(p)(2)(A) was invalid because it was not premised on a qualifying "crime of violence."¹⁰

C. The District Court's Decision

On April 26, 2019, the district court denied Kassir's § 2255 motion as untimely. The court found that "although the Supreme Court decided Dimaya on April 17, 2018 (or within one year of when [Kassir] filed [his] motion), it has never held that Dimaya announced a substantive rule that applies retroactively on collateral review." J. App'x 122. Because Dimaya did not reset the clock for Kassir to file a § 2255 motion, the district court held that his one-year window for doing so closed on April 19, 2012—that is, one year after his time expired for filing a certiorari petition on direct review.¹¹ Thus, the district could not consider Kassir's Dimaya -based § 2255 claim.

The district court declined to issue a certificate of appealability. On October 22, 2019, however, this Court granted Kassir's motion for a certificate of appealability on the following issues: (1) whether Kassir's motion is not time-barred because Dimaya or Davis established a new rule of constitutional law, made retroactive to cases on collateral review, applicable to his case, and (2) if so, whether Kassir's conviction under 18 U.S.C. § 842(p)(2)(A) was predicated on a "crime of violence" pursuant to 18 U.S.C. § 16(b).

II. Discussion

On appeal, Kassir argues that his petition is timely, and that his § 842(p) conviction must be vacated under Dimaya . The Government does not dispute the petition's timeliness; nor does it argue that Kassir procedurally defaulted his challenge to the § 842(p) conviction; nor does it address Kassir's substantive challenge to his § 842(p) conviction. Instead, the Government contends that Kassir's claim is not cognizable under § 2255, because Kassir is not challenging his two concurrent life sentences and therefore is not "claiming the right to be released" from custody, as is required by the text of the statute.¹²

We review de novo a district court's denial of a § 2255 motion.¹³ As an initial matter, we decline to reach the question of whether Kassir's motion must be dismissed on timeliness grounds, as the district court did, because the one-year filing deadline for a § 2255 motion is not a jurisdictional prerequisite to our review of the district court's judgment,¹⁴ and the Government has expressly abandoned any challenge to the motion's timeliness on appeal. We also express no view on the Government's principal argument—that Kassir's claim is not cognizable under § 2255—because regardless of its merit, we exercise our discretion not to review Kassir's collateral attack on only one of his convictions under the concurrent sentence doctrine. Even if Kassir's 18 U.S.C. § 842(p) conviction were vacated, Kassir will remain imprisoned on his other convictions, serving at minimum two life sentences imposed for conspiring to kill people. Since a favorable decision on Kassir's claim would not shorten the amount of time he will spend incarcerated, we decline to review the merits of his challenge at this juncture.

A. The Current State of the Concurrent Sentence Doctrine

The concurrent sentence doctrine is "a rule of judicial convenience."¹⁵ As originally formulated with respect to direct appeals, it "allows courts, in their discretion, to avoid reaching the merits of a claim altogether in the presence of identical concurrent sentences"¹⁶ since "a ruling in the defendant's favor would not reduce the time he is required to serve or otherwise prejudice him in any way."¹⁷ In this context, it has been said that the court must "foresee[ ] with reasonable certainty that the defendant will suffer no adverse collateral consequences" from the court's decision to leave his conviction and sentence unreviewed.¹⁸ Ultimately, the doctrine is premised on the same principle underlying the doctrine of harmless error—that is, "to help promote the overall functioning of our justice system, courts should conserve judicial resources by cleansing the judicial process of prejudicial error without becoming mired in harmless error."¹⁹

The scope of the concurrent sentence doctrine was limited, with respect to direct appeals of federal criminal convictions, by the Supreme Court's 1987 decision in Ray v. United States .²⁰ There, a defendant sentenced to three concurrent 7-year prison terms challenged each of his three separate convictions on direct appeal.²¹ The appellate court, after affirming two of the convictions, declined to review the last conviction under the concurrent sentence doctrine.²² The Supreme Court vacated the judgment, finding that the defendant was "not in fact serving concurrent sentences."²³ Citing the special monetary assessment imposed on each count—an additional penalty that, at the time, had only recently begun to be levied on all criminal convictions under the Comprehensive Crime Control Act of 1984²⁴ —the Supreme Court reasoned that the defendant's "liability to pay th[e] total [assessment] depend[ed] on the validity of each of his three convictions."²⁵ Because every conviction carries its own special assessment, Ray effectively recognized that the concurrent sentence doctrine had become moribund on direct appeal of federal criminal convictions.²⁶

In the wake of Ray , we have recognized that the concurrent sentence doctrine has some continued vitality, though to a more limited degree.²⁷ We have continued to regularly apply the principle in direct appeals where a defendant challenges only the length of one concurrent sentence, rather than the legality of a conviction underlying that sentence. Our decisions in this respect have generally been framed in terms of harmless-error review,...