1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 UNITED STATES OF AMERICA, 9 Case No. 5:1 1-cr-00355-EJD-7 Plaintiff, 10 ORDER GRANTING DEFENDANT’S v.

MOTION TO VACATE 11 AND CORRECT CONVICTION AND JORGE CISNEROS, SENTENCE Ss Defendant. Re: Dkt. No. 967

14 Before the Court is Defendant Jorge Cisneros’ 28 U.S.C.§ 2255 motion to vacate and © 3 15 || correct his conviction and sentence.

Motion to Vacate (“Mot.”), Dkt. 967. On A 16 June 29, 2020, the Government filed its response to Defendant’s motion and requested that the

17 || Court resentence Defendant. Government’s Response to 2255 and Request for Plenary Re- Z 18 Sentencing (“Response”), Dkt. 992. Thereafter, on July 26, 2020, Defendant filed his reply. 19 || Defendant’s Reply to Government’s Response to

Motion to Vacate (“Reply”), 20 || Dkt. 1005. For the foregoing reasons, Defendant’s motion is GRANTED. 21 I. BACKGROUND 22 On or about June 13, 2017, Defendant entered into a plea agreement and pled guilty to 23 || three charges: racketeering conspiracy, in violation of 18 U.S.C.§ 1962(d) (Count 1), use of a 24 || firearm in relation to a crime of violence, in violation of 18 U.S.C.§ 924(c) (Count 4), and 25 || possession with intent to distribute 5 grams or more of methamphetamine violation of 21 U.S.C. 26 §§ 841(a)(1) and (b)(1)(B)(viil) (Count 25). See Mot. at 1. On September 25, 2017, the Court 27 Case No.: 5:1 1-cr-00355-EJD-7 28 || ORDER GRANTING DEFENDANT’S

MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE

1 sentenced Defendant to 140 months in custody. /d. Pursuant to the sentencing order, Defendant 2 || received 80 months for Counts 1 and 25 (respectively) and a 60-month mandatory consecutive 3 sentence for Count 4 (for an aggregate of 140 months), with five years of supervised release (five 4 || years for each count, to be served concurrently) upon release from imprisonment. /d.; Dkt. 796. 5 || Judgment was entered on September 26, 2017. Dkt. 796. Defendant is currently incarcerated at 6 FCI Fairton, with a scheduled release date of January 8, 2024. 7 In June 2019, the United States Supreme Court held that

(c)’s residual 8 clause (which Defendant was charged and sentenced under) is unconstitutionally vague. United 9 || States v. Davis,

(2019). In light of Davis, Defendant moves under 28

for his conviction and sentence to be vacated, set aside, and corrected. 11 Il. LEGAL STANDARD 12 A federal sentencing court is authorized to grant relief if it concludes that “the sentence 13 || was imposed in violation of the Constitution or laws of the United States.”

(a). 14 || Ifthe court finds that relief is warranted, it must vacate and set aside the judgment and then 3 15 || discharge the prisoner, resentence him, grant a new trial, or correct the sentence as may appear a 16 || appropriate. Jd. § 2255(b). A court may retroactively apply a constitutional rule of criminal 3 17 || procedure to a prisoner’s conviction and sentence if: (1) it places a class of conduct beyond the 18 authority of the criminal law to proscribe or (2) it announces a watershed rule of criminal 19 || procedure. See United States v. Brown,

, 904 (N.D. Cal. 2019). 20 I. DISCUSSION 21 On June 24, 2019, the United States Supreme Court held that the residual clause—the very 22 || statute under which Defendant was convicted on Count Four—is unconstitutionally vague. Davis, 23

. The Government does not dispute that Davis applies retroactively or that it 24 || requires the Court to vacate Defendant’s § 924(c) conviction, i.e., Count Four. See Response at 6. 25 || Accordingly, the Court GRANTS Defendant’s § 2255 motion and vacates Defendant’s § 924(c) 26 || conviction and sentence. a Case No.: 5:1 1-cr-00355-EJD-7 28 || ORDER GRANTING DEFENDANT’S

MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE _

1 The Government instead argues that this Court should resentence Defendant on the 2 || remaining counts of conviction, i.e. Counts One and Twenty-Five. See

But, “the usual remedy 3 is to set aside the counts on which illegal convictions were obtained and to leave untouched the 4 valid convictions.” United States v. Barron,

(9th Cir. 1999). The court has 5 “wide discretion” to issue whatever remedy it deems “appropriate.” Troiano v. United States, 918 6 || F.3d 1082, 1086 (9th Cir. 2019) (holding that the standard of review for a district court’s 7 || determination of the appropriate remedy in a § 2255 is abuse of discretion). Indeed, just recently, 8 || this Court declined to hold a resentencing hearing in a comparable case. See United States v. 9 Cardenas,

(N.D. Cal. Dec. 20, 2019). As in Cardenas, there is no need to hold 10 || aresentencing hearing because the Court can easily excise the

(c) conviction and 1] sentence, while leaving the

(d) and

(a)(1) and (b)(1)(B)(vii1) 12 || counts intact. See

; see also Brown, 415 F. Supp. 3d at 907 (declining to hold a 13 || resentencing hearing due to the “straightforward nature of correcting [the defendant’s] conviction 14 || and sentence’). 3 15 The Government uses Troiano to argue that when a count is vacated such that it impacts a 16 || the relevant Guideline range, the district court must engage in resentencing. Response at 8. In 3 17 || fact, in Troiano, the Ninth Circuit specifically noted that “the decision to unbundle a sentencing 18 || package—that is, to conduct a full resentencing on all remaining counts of conviction when one or 19 || more counts of a multi-count conviction are undone—rests within the sound discretion of the 20 || district court.” 918 F.3d at 1087 (emphasis added). Here, there are good reasons not to 21 resentence Defendant. Under the Government’s resentencing proposal, Defendant would only be 22 || incarcerated for an additional year. FCI Fairton, where Defendant is incarcerated, has a COVID- 23 19 outbreak. An additional year could thus subject Defendant to the unnecessary risk of acquiring 24 || COVID-19. Moreover, Defendant has engaged in post-sentence rehabilitation, he has no 25 disciplinary violations, has completed educational and vocational training, and has disavowed 26 || gang membership and thus cannot associate with gang members. The Court also can easily correct a Case No.: 5:1 1-cr-00355-EJD-7 28 || ORDER GRANTING DEFENDANT’S

MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE

1 Defendant’s conviction and sentence without having a resentencing hearing. See Brown, 415 F 2 || Supp. 3d at 907. For these reasons, the Court declines to have a resentencing hearing. As 3 Defendant has already served the 80-month custodial sentence on the two remaining counts, see 4 || Dkt. 782 (in custody since January 30, 2014), he must be released forthwith from the custody of 5 || the Bureau of Prisons. 6 IV. CONCLUSION 7 For the foregoing reasons, Defendant’s

(c) conviction and sentence are 8 || vacated. As he has already completed his sentence for Counts One and Twenty-Five, he must be 9 || released forthwith from the custody of the Bureau of Prisons. Nothing in this Order shall affect 10 || the five-year supervised release ordered for Counts One and Twenty-Five. See Judgment, Dkt. 11 796. Defendant shall also comply with the $300 payment imposed in the Judgment. Finally, in 12 || light of the ongoing COVID-19 pandemic, Defendant must quarantine himself for 14-days upon 13 || release. IT IS SO ORDERED. 3 15 || Dated: July 29, 2020

EDWARD J. DAVILA 17 United States District Judge 18 19 20 21 22 23 24 25 26 a Case No.: 5:1 1-cr-00355-EJD-7 28 || ORDER GRANTING DEFENDANT’S

MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE