UNITED STATES DISTRICT COURT DATE FILED: 5/4/20 21 SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------ X UNITED STATES OF AMERICA, : : 16-CV-5044 (VEC) : 88-CR-325-2 (VEC) -against- : : ORDER : NELSON VARGAS, : : Defendant. : ------------------------------------------------------------ X VALERIE CAPRONI, United States District Judge: WHEREAS Mr. Nelson Vargas filed a petition pursuant to

, arguing that his 1991 sentence should be vacated because the definition of “crime of violence” under the career offender Sentencing Guideline, U.S.S.G. §§ 4B1.1, 4B1.2, which was mandatory at the time of his sentence, contains an unconstitutionally vague residual clause, see No. 16-CV-5044, Dkt. 11; WHEREAS the petition was filed within one year of the Supreme Court’s decision declaring an identical, statutory residual clause unconstitutionally vague, see Johnson v. United States,

(2015); WHEREAS the Second Circuit held that a § 2255 petition seeking to vacate a mandatory Guidelines sentence under Johnson was untimely filed, despite being commenced within one year of Johnson, see Nunez v. United States, No. 18-1803,

(2d Cir. Mar. 30, 2020); WHEREAS on April 15, 2020, the Court ordered Defendant to file a letter by April 28, 2020 explaining whether there was any reason why Mr. Vargas’ petition should not be withdrawn or summarily dismissed in light of the Second Circuit’s decision in Nunez, see No. 16-CV-5044, Dkt. 19; WHEREAS on April 20, 2020, the Court granted Defendant’s request for an adjournment of the deadline until 21 days after the resolution of a rehearing petition filed in Nunez, see No. 16-CV-5044, Dkt. 21; WHEREAS on July 1, 2020, Defense counsel updated the Court that the Second Circuit had denied rehearing the petition in Nunez, see No. 16-CV-5044, Dkt. 22; WHEREAS on July 1, 2020, the Court granted Defendant’s request for an adjournment of the deadline until after the resolution of the petition for a writ of certiorari in Nunez, Dkt. 23; WHEREAS on December 7, 2020, the Supreme Court denied the petition for writ of certiorari in Nunez, see Nunez v. United States,

(2020); and WHEREAS on December 8, 2020, Mr. Vargas was released from incarceration; IT IS HEREBY ORDERED that Mr. Vargas must file a letter, by no later than Friday, May 14, 2021, explaining whether there is any reason why his petition should not be withdrawn or summarily dismissed in light of the Second Circuit’s decision in Nunez. If necessary, the Government must file a response by May 28, 2021.

SO ORDERED. . . Dated: May 4, 2021 Vole (G : New York, NY VALERIE CAPRONI United States District Judge

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