21-1247-pr Kaziu v. United States 1 IN THE

2 United States Court of Appeals 3 For the Second Circuit 4 ________

5 AUGUST TERM, 2022 6 7 ARGUED: FEBRUARY 23, 2023 8 DECIDED: JULY 16, 2024 9 10 No. 21-1247-pr 11

12 BETIM KAZIU, 13 Petitioner-Appellant, 14 15 v. 16 17 UNITED STATES OF AMERICA, 18 Respondent-Appellee. 19 20 ________ 21 22 Appeal from the United States District Court 23 for the Eastern District of New York. 24 1:09-cr-00660-FB – Block, District Judge. 25 26 ________ 27 28 29 Before: CALABRESI, LYNCH, ROBINSON, Circuit Judges. 30 31 32 ________

33 21-1247-pr Kaziu v. United States

1 On April 14, 2019, Betim Kaziu filed a petition for habeas corpus relief under 2

, alleging that two of his four Counts of conviction were unlawful 3 given intervening Supreme Court precedent. On May 3, 2021, Judge Block of the 4 Eastern District of New York granted Kaziu’s petition in part, vacating his 5 conviction as to Count Four following an intervening change in law, and reducing 6 the sentence for his original conviction on Count One—conspiracy to commit 7 murder in a foreign country—by two years, from 27 years to 25. The district court 8 resentenced Kaziu on the papers submitted, without a full in-person sentencing 9 proceeding. Kaziu challenges the procedures required by district courts following 10 a vacated conviction. He maintains that de novo resentencing is always required 11 following a vacated conviction on a collateral appeal, and even if it is not always 12 required, that de novo resentencing is required in his case because his convictions 13 are inextricably linked. We need not determine the full scope of a district court’s 14 discretion to dispense with de novo resentencing following vacatur under § 2255 of 15 one of multiple counts of conviction, because we conclude in this case that the 16 district court exceeded its discretion in declining to conduct a full de novo 17 resentencing on account of two factors: (i) the resentencing judge is not the original 18 sentencing judge, and (ii) the defendant plausibly alleges changed circumstances. 19 Accordingly, we VACATE the sentence imposed and REMAND for a full 20 resentencing. 21 22 Judge Calabresi concurs in the judgment in a separate opinion. 23 24 Judge Lynch concurs in the judgment in a separate opinion. 25

26

27 YOAV M. GRIVER, Zeichner Ellman & Krause LLP, New York, New York,

28 for Petitioner-Appellant Betim Kaziu

2 21-1247-pr Kaziu v. United States

1 BREON PEACE, United States Attorney, SARITHA KOMATIREDDY AND

2 ROBERT M. POLLACK, Assistant United States Attorneys, Eastern

3 District of New York, Brooklyn, New York, for Respondent-Appellee

4 United States of America.

5

6

7

8 CALABRESI, Circuit Judge:

9 BACKGROUND

10

allows prisoners in federal custody to attack the legality of

11 their convictions or sentences collaterally. When a federal prisoner successfully

12 challenges one or more of his convictions or sentences as invalid, § 2255(b) gives

13 the district court, in certain situations, the discretion to choose among four

14 remedies: the court may discharge the petitioner, resentence them, grant them a

15 new trial, or correct their sentence. Id. In this case, we address two of these

16 remedies—resentencing and correcting the sentence—and the bounds of the

17 district court’s discretion in choosing between them.

18 FACTUAL BACKGROUND

19 This case arises from Betim Kaziu’s convictions for his plan and attempt to

20 join and aid foreign terrorist organizations. Kaziu was born in Brooklyn in 1988.

3 21-1247-pr Kaziu v. United States

1 He lived there until February 2009, when he and his friend and co-conspirator,

2 Sulejmah Hadzovic, flew to Cairo, Egypt, to join a terrorist organization and fight

3 jihad.

4 Trial and Sentencing

5 Kaziu began his radicalization in 2007, around the age of 19. Videos posted

6 online by terrorist groups depicting the United States as oppressing and

7 murdering Muslims abroad prompted Kaziu and Hadzovic to embrace militant

8 jihadism. In late 2008, the pair started planning to travel abroad in order to join a

9 terrorist organization. Early the next year, they flew to Cairo, Egypt, intending to

10 study Arabic and fight jihad.1 While in Cairo, they met with individuals who could

11 help them gain access to terrorist training facilities and weapons for the purpose

12 of killing U.S. troops. In the summer of 2009, Hadzovic had a change of heart and

13 eventually returned to the United States.

14 In July 2009, Kaziu traveled alone from Egypt to Kosovo to formulate a

15 terrorist plot to kill Americans there. But his plans were intercepted. On August

1 We adopt the definition of “fight jihad” as it was understood by Kaziu and Hadzovic. Hadzovic testified that jihad meant “fighting in a war” with the intention of killing U.S. troops and their allies, among other entities, in “places like Afghanistan, Pakistan, Chechnya, Somalia and Israel.” Trial Tr. 341–44.

4 21-1247-pr Kaziu v. United States

1 25, American law enforcement alerted Kosovar authorities of the possibility that

2 Kaziu was engaged in a terrorist plot. A search of Kaziu’s Kosovo apartment

3 recovered Kaziu’s laptop and video camera, his identification and travel

4 documents, and a firearms catalog. In one of the recordings found on the video

5 camera, Kaziu professed his imminent plan to die for Allah. Kaziu was arrested in

6 Kosovo on August 27, 2009, and he was interviewed by FBI agents on August 28

7 and September 14 while incarcerated there. Kaziu was subsequently indicted in

8 the Eastern District of New York on September 18, 2009. He was expelled from

9 Kosovo and transferred to U.S. custody at Stewart Airport in Newburgh, New

10 York on September 23, 2009.

11 The case proceeded to trial in 2011. The government sought conviction on

12 four counts: conspiracy to commit murder in a foreign country in violation of 18

13 U.S.C. § § 956(a)(1), 956(a)(2), and 3551 et seq. (Count One); conspiracy to provide

14 material support to terrorists in violation of 18 U.S.C. §§ 2339A(a) and 3551 et seq.

15 (Count Two); attempt to provide material support to a foreign terrorist

16 organization in violation of 18 U.S.C. §§ 2339B(a)(1), 2, and 3551 et seq. (Count

17 Three); and conspiracy to use a firearm in violation of

(o),

18 924(c)(1)(B)(ii), and 3551 et seq. (Count Four).

5 21-1247-pr Kaziu v. United States

1 The jury found Kaziu guilty on all four counts. On each of Counts One and

2 Four, Kaziu faced a statutory sentence range of any term of years or life

3 imprisonment, and, on each of Counts Two and Three, a statutory sentence range

4 of up to 15 years’ imprisonment. Based on Kaziu’s total offense level of 45 and his

5 criminal history category of VI, the revised Presentence Report recommended a

6 sentence of life imprisonment.

7 At his sentencing hearing, Kaziu addressed the court, maintaining his

8 innocence (on the ground that he had not harmed anyone) and expressing some

9 regret. But in light of Kaziu’s continued defiance and limited acceptance of

10 responsibility, the court (Gleeson, J.) explained that it did not “completely accept

11 as genuine what [Kaziu] said” about feeling remorse, fearing it was merely

12 “opportunistic.” The court considered the other sentencing factors required by 18

(a) and sentenced Kaziu to 27 years’ imprisonment on Count One, the

14 statutory maximum sentences of 15 years on each of Counts Two and Three, and

15 27 years on Count Four, all to run concurrently. The total custodial sentence of 27

16 years was to be followed by lifetime supervision. This Court affirmed the

17 convictions and sentences on direct appeal. See United States v. Kaziu,

(2d Cir. 2014).

6 21-1247-pr Kaziu v. United States

1 Kaziu’s

Petition

2 In 2019, Kaziu petitioned the district court for post-conviction relief under

3

. He argued that his convictions for the murder conspiracy (Count

4 One) and for the firearm conspiracy (Count Four) were unlawful given

5 intervening Supreme Court precedents. The government disputed Kaziu’s

6 contention that his murder conspiracy conviction was invalid, but it agreed that

7 Kaziu’s firearm conspiracy conviction could no longer stand because United States

8 v. Davis,

(2019), invalidated as unconstitutionally vague a statutory

9 provision on which the firearm conspiracy count was based.

10 At the time, the government took its long-held position that because one of

11 the convictions—rather than one of the sentences—was invalid, Second Circuit

12 law required de novo resentencing on each of the three remaining counts. J. App’x.

13 at 103 (citing United States v. Powers,

(2d Cir. 2016) (per curiam),

14 for the position that “the remedy for conviction error is remanding for de novo

15 resentencing”). De novo resentencing requires the district court to “reconsider the

16 sentences imposed on each count, as well as the aggregate sentence,” formulating

17 anew the appropriate sentence for each unreversed conviction under the

7 21-1247-pr Kaziu v. United States

1 individualized assessment required by § 3553(a). United States v. Rigas,

108, 118 (2d Cir. 2009).

3 The district court (now Block, J.) did not immediately rule on Kaziu’s

4 petition. Instead, in October 2019, it entered an order scheduling a resentencing

5 proceeding “[b]ased upon the Government’s reply.” J. App’x at 25. The sentencing

6 hearing, initially set for February 2020, was repeatedly delayed by the parties’

7 requests for extensions to submit documents and the COVID-19 pandemic.

8 The district court eventually scheduled the de novo resentencing hearing to

9 occur telephonically in February 2021. But the government objected. A month

10 before the telephonic hearing, it requested adjournment until health conditions

11 improved, reasoning that, generally, “felony sentencing proceedings must take

12 place in person” and that limited pandemic-era statutory exceptions to this rule

13 did not apply. J. App’x at 261–63 (citing Fed. R. Crim. P. 43(a)(3)). The court

14 acquiesced and pushed the de novo resentencing hearing to an in person

15 proceeding in May 2021.

16 Kaziu, operating on the view that he would be resentenced de novo, had

17 already submitted a sentencing memorandum contending that renewed

8 21-1247-pr Kaziu v. United States

1 application of the § 3553(a) factors merited a sentence of no longer than 15 years

2 given his reform during his intervening time in prison.

3 The government, however, changed its position as to the appropriate

4 remedy for the unlawful conviction. In March 2021, two years after it had asserted

5 that de novo resentencing was required and two months after it had argued that a

6 de novo resentencing hearing conducted telephonically was improper, the

7 government filed a memorandum arguing that de novo resentencing was not

8 needed after all and, in fact, was not warranted here. The government’s new memo

9 cited three district court decisions which had held that our rule requiring de novo

10 resentencing did not apply where a conviction was invalidated on collateral attack

11 rather than direct appeal. See J. App’x at 276–77. Those courts read § 2255(b)’s

12 option to “correct the sentence” to mean that they could vacate the sentence

13 corresponding to the unlawful conviction without re-examining the unreversed

14 convictions or their corresponding sentences at all. See United States v. Hector

15 Raymond Peña, 17-cv-03891 (VM),

, at *6 (S.D.N.Y. Dec. 17, 2020),

16 appeal dismissed, No. 21-1199 Dkt. 58 (2d Cir. Nov. 17, 2021); United States v.

17 Medunjanin, Nos. 19-cv-2371 (BMC), 20-cv-2755 (BMC),

, at *8

18 (E.D.N.Y. Oct. 6, 2020); Ayyad v. United States, 16-cv-4346 (LAK),

,

9 21-1247-pr Kaziu v. United States

1 at *2 (S.D.N.Y. Aug. 24, 2020), aff’d,

(2d Cir. Feb. 14, 2023). That

2 is the course the government’s new memorandum urged the court to take—

3 without a hearing, to vacate the 27-year sentence on Count Four, but retain the

4 sentences on the remaining counts. J. App’x at 278–79; 289–90.2 The government

5 argued that because Count One also carried a sentence of 27 years that ran

6 concurrently with the other sentences, Kaziu’s aggregate sentence would remain

7 the same—27 years—despite the vacatur of his conviction on Count Four and its

8 corresponding sentence.

9 Kaziu vehemently objected and requested that the court hold the de novo

10 resentencing as originally planned. See J. App’x at 345, 353. He disputed the

11 government’s argument that the posture of the conviction challenge—on collateral

12 attack rather than direct appeal—affected the applicability of our de novo

2 Notably, in cases where de novo resentencing might result in a longer sentence, the government has previously argued that full resentencing was proper, even when the factual interconnection between crimes was virtually non-existent. See, e.g., United States v. Gordils,

(2d Cir. 1997); United States v. Gordon,

(2d Cir. 1998) (per curiam); see also United States v. Denoyers,

(2d Cir. 2013) (summarizing the government’s argument that de novo resentencing requires the district court to consider evidence that was available to the government at the initial sentencing but was not presented). There is no indication that the government has changed its position in such cases. But in cases where de novo resentencing might result in a shorter sentence overall, the government now says that such resentencing is not required. The government has not explained the asymmetry.

10 21-1247-pr Kaziu v. United States

1 resentencing rule. See

at 349–50 (citing United States v. Gordils,

(2d

2 Cir. 1997) (declining to distinguish between direct appeals and § 2255 petitions in

3 the sentencing context)). He further argued that, even if the government was

4 correct that de novo resentencing was not required for all successful collateral

5 attacks on convictions, it was required in his case because his convictions and

6 sentences were interrelated.

7 In May 2021, the district court issued its decision on both the merits of

8 Kaziu’s § 2255 petition and the relief he sought, based only on the parties’ written

9 submissions. See United States v. Kaziu, No. 1:09-cr-00660-FB-1,

10 (E.D.N.Y. May 4, 2021). The court granted Kaziu’s petition to vacate his conviction

11 on Count Four, agreeing with both parties that the conviction for the firearms

12 conspiracy was unlawful under Davis,

, but it denied Kaziu’s petition to

13 vacate his conviction on Count One, the murder conspiracy, finding it unaffected

14 by intervening changes in the law.

15 The court then turned to the remedy for the unlawful conviction on Count

16 Four. Neither party disputed that the text of § 2255 obligated the court to vacate

17 the unlawful conviction. See

(b) (“[T]he court shall vacate and set

18 the judgment aside.”). The question was whether the vacatur on Count Four

11 21-1247-pr Kaziu v. United States

1 required the court to conduct de novo resentencing on all of the remaining counts

2 of conviction, or whether it could merely “correct the sentence” by vacating the

3 sentence corresponding to the unlawful conviction, as the government urged.

4 The court ultimately took a path between those advocated by the parties—

5 it purported to resentence Kaziu, but did not conduct a full de novo resentencing.

6 Citing the three district court decisions that the government had referenced, the

7 court decided that it was not obligated to conduct de novo resentencing following

8 every successful § 2255 collateral attack of a conviction. See Kaziu,

1751156, at *2. The court concluded that the Second Circuit’s default rule of de novo

10 resentencing upon conviction vacatur applied only in direct appeals and did not

11 extend to the “meaningfully differ[ent]” context of collateral attacks.

The court

12 reached this conclusion because of “the ‘narrow scope’ of § 2255 and the more

13 limited availability of relief under that statute, which ‘reflects an interest in the

14 finality of a criminal judgment . . . that is not present on direct appeal.’” Id.

15 (quoting Medunjanin,

, at *8).

16 But unlike the courts it cited, the district court did not just vacate the part of

17 the sentence based on the unlawful conviction; it also chose to reweigh the

18 § 3553(a) sentencing factors pertaining to one of Kaziu’s lawful convictions.

12 21-1247-pr Kaziu v. United States

1 Because Kaziu had argued that a 15-year sentence was appropriate, equal to his

2 concurrent sentences on Counts Two and Three, the court re-evaluated his 27-year

3 sentence for Count One, the murder conspiracy. See Kaziu,

, at *3.

4 Balancing the seriousness of the offense against both the lack of harm inflicted by

5 the foiled plot and Kaziu’s subsequent reform while in prison, the court reduced

6 the sentence by two years, to 25 years, to be followed by lifetime supervision.

7 at *4.

8 The court did not re-examine the sentences for the other remaining

9 convictions. Consistent with its written decision, the district court entered

10 judgment sentencing Kaziu to 25 years on Count One, and 15 years each on Counts

11 Two and Three, all to run concurrently, for an aggregate term of 25 years.

12 Kaziu timely appealed.3 He raises three principal arguments. First, he

13 contends that de novo resentencing is always required where a defendant

3For jurisdiction over an appeal from a final § 2255 decision to vest in this Court, the district court or this Court must typically grant a certificate of appealability (“COA”). See

(c)(1)(B); see also Krantz v. United States,

(2d Cir. 2000) (per curiam). Nevertheless, as this Court ruled in response to Kaziu’s motion for a COA to challenge the reasonableness of his sentence, a COA is not required to appeal a resentencing following a successful § 2255 claim. Many of our sister circuits have reached the same conclusion. See, e.g., Ajan v. United States,

, 631–32 (6th Cir. 2013); United States v. Fleming,

(7th Cir. 2012); United States v. Futch,

(11th Cir. 2008); United States v. Hadden,

13 21-1247-pr Kaziu v. United States

1 successfully collaterally attacks their conviction as unlawful. Second, he contends

2 that, even if it is not always required, both our conviction errors precedent and

3 due process required full de novo resentencing in his case because his convictions

4 were inextricably linked to one another. Finally, he challenges his 25-year

5 aggregate sentence as unreasonable.4

6 While Kaziu’s appeal was pending, this Court decided United States v. Jose

7 Peña,

(2d Cir. 2023), cert. denied,

(Mem.) (2023).5 Peña held

8 that the plain text of § 2255(b) affords district courts the authority to choose

9 between, inter alia, conducting a de novo resentencing on all remaining counts of

10 conviction or merely correcting the sentence. See Peña, 58 F.4th at 618–20.

11 Accordingly, Peña forecloses Kaziu’s first argument that de novo resentencing is

12 categorically required whenever a conviction is vacated on collateral attack. But

, 663–66 (4th Cir. 2007); United States v. Lafayette,

(D.C. Cir. 2003); see also Illarramendi v. United States,

(2d Cir. 2018) (per curiam) (“[A] COA is not required when appealing from orders in a habeas proceeding that are collateral to the merits of the habeas claim itself.”). We reaffirm here that a COA was not necessary to give us jurisdiction to review that challenge.

4 We do not address Kaziu’s reasonableness argument, as we vacate and remand for full de novo resentencing.

5 While this opinion has two different cases with Peña defendants, the Peña shorthand will be used to describe solely Jose Peña’s case,

.

14 21-1247-pr Kaziu v. United States

1 Peña does not address the thrust of Kaziu’s second argument, which concerns the

2 limits of the district court’s discretion in choosing among § 2255(b)’s remedies.

3 Peña specifically demurred on this issue. Because in Peña de novo

4 resentencing would have been “strictly ministerial” (the district court in Peña could

5 not have shortened his carceral term), and hence resentencing would not be

6 needed even on direct appeal, Peña expressly declined to define the circumstances

7 under which a district court abuses its discretion when it fails to resentence a

8 defendant de novo following a successful collateral attack on a conviction.6 Id. at 623.

9 Peña did suggest that it might be the case that most of the time district courts

10 should be required to conduct de novo resentencing even in habeas cases: “[i]t may

11 be that in most cases in which resentencing would not be strictly ministerial, a

12 district court abuses its discretion when it denies de novo resentencing.” Id. at 623.

13 But it did not decide that question, and neither do we. Rather, we address two

14 factors which make a failure to resentence fully an abuse of discretion in the instant

15 case.

6 Peña had failed to show that resentencing would not be strictly ministerial.

15 21-1247-pr Kaziu v. United States

1 DISCUSSION

2 Prior to this Court’s decision in Peña, we explored the process due to

3 criminal defendants following conviction errors. Specifically, in the direct appeal

4 context, we held that following the vacatur of a conviction, courts were required

5 to conduct de novo resentencing, and we detailed the procedural expectations at

6 resentencing: “a district court that is required to resentence de novo must

7 reconsider the sentences imposed on each count, as well as the aggregate

8 sentence.” Rigas, 583 F.3d at 118.

9 We later noted that this rule did have one viable exception: de novo

10 resentencing is not required when the resentencing would be “by force of law,

11 ‘strictly ministerial,’” meaning that the “defendant has already received, as his or

12 her sentence on an upheld count of conviction, a mandatory minimum sentence.”

13 Powers,

(quoting Burrell v. United States,

, 166 & n.4 (2d

14 Cir. 2006)).

15 In Peña, however, we declined in the collateral attack context to mirror our

16 direct appeal Rigas/Powers de novo resentencing rule. We cited the statutory

17 language of § 2255(b) which affords district courts the authority to choose between

18 sentence correction and resentencing. But Peña explicitly noted that this authority

16 21-1247-pr Kaziu v. United States

1 remained subject to abuse of discretion review, and that, perhaps even in most non

2 “strictly ministerial” cases, a court would abuse its discretion when it failed to

3 conduct de novo resentencing. 58 F.4th at 623. Here, two factors combine to limit

4 the district court’s discretion to dispense with plenary resentencing.

The district court judge in this case, Judge Block, was not the original

7 sentencing judge. Unlike the original sentencer (here Judge Gleeson) who retains

8 privileged access to the rationale behind the original sentence, a deep familiarity

9 of the facts, and an in-person observation of the defendant’s allocution, a new

10 judge ruling on a 2255(b) petition comes to the case without this type of insider

11 information. As a result, it may well be that Kaziu’s original sentence relied, at

12 most, minimally on his (now vacated) 924(c) conviction; Judge Gleeson may have

13 determined that the bulk of Kaziu’s original sentence on his remaining counts was

14 based on the terroristic conspiracy itself, and not on the fact that this conspiracy

15 when reduced to its individual elements, constituted a statutory “crime of

16 violence.” But Judge Block does not know the contours of Judge Gleeson’s

17 decision-making and to what degree (if any) the now vacated convictions may

18 have inflated Kaziu’s sentences on his remaining convictions. While the

17 21-1247-pr Kaziu v. United States

1 sentencing transcript does not suggest that the sentence imposed on Kaziu’s

2 conviction for his involvement a terroristic conspiracy was motivated by whether

3 it was a statutory “crime of violence,” there is nothing in the record that suggests

4 it was not. Ultimately, a new judge cannot be certain that simply lopping off the

5 sentence of a vacated count sufficiently remedies a sentencing package that did, in

6 some undetermined, opaque capacity, factor in a now vacated conviction.

7 Significantly, this very concern was implicit in our discussion in Quintieri.

8 There on review of the defendant’s § 2255 challenges to both his conviction and

9 sentence, we explained that when one count in a multi-part conviction is vacated,

10 de novo resentencing is generally required as we cannot be certain how the

11 “constellation of offenses of conviction” that were considered at sentencing were

12 weighed, and ultimately, to what extent each was determinative to the defendant’s

13 sentence. United States v. Quintieri,

, 1227–28 (2d Cir. 2002). We there

14 noted that if a conviction is overturned and later remanded, “the constellation of

15 offenses of conviction has been changed and the factual mosaic related to those

16 offenses that the district court must consult to determine the appropriate sentence

17 is likely altered.”

This concern grows more sensitive when the original

18 sentencing judge is no longer present. In such cases, not only has the constellation

18 21-1247-pr Kaziu v. United States

1 and factual mosaic changed, but the original understanding of how that factual

2 mosaic and the constellation was originally packaged together is unknown. The

3 original sentencing judge perhaps could conclude, by referencing notes or

4 consulting other preparation materials, that an overturned conviction was an

5 insignificant piece of the original sentencing decision, an outer star that never

6 really contributed to the greater constellation. But a new judge does not have that

7 same knowledge.

8 The new judge may, as our concurring colleague suggests, hypothesize from

9 the sentencing record or the sentence itself how the sentencing judge viewed the

10 relationship between the now-vacated count and the remaining counts. Judge

11 Lynch Concurrence at 7–9. But a learned hypothesis is a weak substitute for direct

12 knowledge of how the “constellation of offenses of conviction” impacted the

13 defendant’s sentence. Quintieri, 306 F.3d at 1227–28.

Kaziu presented plausible allegations of changed circumstances that

16 suggest that the original rationale underlying the sentence—that he was a

17 committed and unredeemed terrorist—no longer applies. Kaziu submitted to the

18 court a lengthy memorandum in support of de novo resentencing, which stressed

19 21-1247-pr Kaziu v. United States

1 that several factors which may have contributed to his original sentence are no

2 longer present. See J. App’x at 140–214.

3 First, Kaziu has exhibited virtually no violent tendencies since his

4 incarceration. Kaziu has spent the preceding 11 years in a series of federal prisons

5 with a “near-flawless disciplinary record[,]” his sole infraction was a fight in his

6 very first year “when another prisoner stole his wrist-watch.” J. App’x at 185.

7 Kaziu has since avoided conflicts.

8 Second, Kaziu has moved on from his religious extremist ideologies. Kaziu

9 plausibly detailed that his relationship with the Qu’ran has changed after he began

10 studying and reading Arabic. Kaziu notes that his new language skills provide a

11 personal relationship with the Qu’ran “rather than relying on interpretations from

12 others[,]” and this ensures that he is less “vulnerable to [] misinformation of

13 anyone who claim[s] to be an ‘expert[.]’” Id. at 191. Kaziu explicitly concedes that

14 he was “caught in an extreme interpretation of the narrative of Islam” and has

15 “replace[d] the crude one [he] had at nineteen” with an interpretation that calls for

16 righteous, virtuous behavior. Id. Kaziu further bolstered this position when his

17 counsel submitted an expert consultation from a qualified authority on American

18 jihadi conversion, Dr. Yasir Qadhi, who noted that Kaziu “did view extremist

20 21-1247-pr Kaziu v. United States

1 ideologies with some sympathies, but ha[s] since moved on and clearly seen that

2 they were wrong.” Id at 193. Dr. Qadhi has further opined that he does not find

3 Kaziu to represent a continued threat to society.

4 Third, Kaziu has invested in his educational future. Kaziu, who was a ninth-

5 grade dropout when he was first incarcerated, has since earned his GED, received

6 certifications in psychology, nutrition, and wellness courses, completed a

7 Vocational Trade Culinary Arts Program, and envisions pursuing an

8 undergraduate degree and social work. Id. at 186–88.

9 Kaziu has thus plausibly claimed that he is nonviolent, has reordered his

10 relationship with Islam, and has positioned himself to be a productive member of

11 society. This is a foundational departure from the type of person Kaziu was when

12 he was originally arrested, convicted, and sentenced. We conclude that Kaziu

13 adequately alleges sufficient changed circumstances so that a district judge might

14 wisely consider his arguments at a full de novo resentencing7.

7 While Judge Lynch’s concurrence is correct that our sentencing system is generally unfriendly to revisions of sentences due to changed circumstances, the authorities he relies on for this position do not apply to the situation before us. All involve cases where following the imposition of a facially correct sentence, a litigant appeals to the district court for a “second look” solely due to changed circumstances. Congress and the courts have prudently circumscribed these situations to avoid what had become a deluge of attacks on valid sentences. Here, instead,

21 21-1247-pr Kaziu v. United States

1 * * *

2 Taking these two factors at least in tandem, because the resentencing judge

3 is not the original sentencing judge and Kaziu presents plausible arguments of

4 changed circumstances, we conclude that the district court exceeded its discretion

5 in declining to resentence fully following Kaziu’s successful habeas petition.

We note that Judge Block did wrestle with deciding the appropriate process

8 Kaziu should receive, ultimately deciding to conduct a “resentencing” on the

9 papers. To wit, Judge Block did more than solely strike the vacated count and its

10 sentence, but “rebalanc[ed] the 3553(a) sentencing factors,” and even changed the

11 sentence on a remaining count by reducing the sentencing on Count One from 27

Kaziu’s conviction has been successfully challenged, and his original sentence is now concededly incorrect. It is in the context of deciding how best to reach a proper sentence that the majority deems changed circumstances relevant. Significantly, if a full resentencing is decided upon, the panel (including the concurrer) agrees that changed circumstances are a proper consideration in determining what the new sentence should be. The decision, whether merely to correct the invalid sentence by dropping the part that was based on the invalid conviction or to engage in a full resentencing, is a decision that seeks, in the particular circumstances of any given case, to give rise to a proper sentence. In such circumstances, everything that is relevant to reaching a proper sentence is relevant to the decision of whether to correct or to resentence. And that, necessarily includes changed circumstances.

22 21-1247-pr Kaziu v. United States

1 to 25 years. Kaziu,

, at *2, 4. But this approach is insufficient.

2 Though Judge Block did endeavor to resentence Kaziu, given the two factors

3 identified above, we conclude that a full de novo resentencing was required.

4 This is so because a resentencing is, for the purposes of procedural

5 protections, no different from an initial sentencing: “[A] defendant has a

6 constitutional right to be present [during resentencing], because technically a new

7 sentence is being imposed in place of the vacated sentence.” United States v.

8 DeMott,

(2d Cir. 2008) (quoting United States v. Arrous,

,

9 359 (2d Cir. 2003)). While Judge Block’s resentencing process did engage in the

10 necessary legwork of revisiting the 3553(a) factors, the result was not the full, de

11 novo resentencing our holding requires (critically, Kaziu was never given the

12 opportunity to give his new allocution, and thus never came before the court). In

13 sum: when a resentencing is required, it necessitates the full panoply of procedural

14 protections defendants are entitled to in a standard sentencing. This was not done

15 in this case.8

8 Because we decide this case on abuse of discretion grounds, we expressly leave open two questions that Peña did not decide—questions that are the subject of separate concurrences in this case.

23 21-1247-pr Kaziu v. United States

1 CONCLUSION

2 Accordingly, we VACATE the sentence imposed and REMAND for de novo

3 resentencing.

The first is whether resentencing is required in any case in which resentencing would not be simply ministerial. See Judge Calabresi Concurrence. The second is whether—even if a correction, rather than a resentencing, would be sufficient—once a district court opts to resentence, it must meet all the procedural requirements of a full resentencing. See Judge Lynch Concurrence in the mandate.

24 21-1247-pr Kaziu v. United States 1 CALABRESI, Circuit Judge, concurring in the judgment:

2 While I fully agree that this case can be decided on the grounds relied on

3 in the panel opinion, Peña and our previous cases leave open the larger question

4 of whether there should be any difference in resentencing when a case arises

5 from a habeas petition, instead of on direct appeal. In Peña, we suggested that (i)

6 the statutory language of § 2255, and (ii) district court approaches to

7 resentencing in habeas cases might lead us to a adopt a more flexible standard in

8 habeas as against direct appeal. 58 F.4th at 618 – 620. I am not convinced, and I

9 write to explain why there is no sound reason to introduce any distinction in

10 how we treat a district court’s scope of discretion in resentencing, following a

11 successful habeas petition as opposed to a direct appeal.

12 In doing so, I want to make clear that I am taking no stand on what has

13 been our court’s extremely strict requirement for de novo resentencing on direct

14 appeal. Unlike some of our sister circuits, we allow anything short of a full

15 resentencing only when doing so would be purely ministerial. It is concern with 21-1247-pr Kaziu v. United States

1 this strict rule – not followed in other circuits – that I believe is causing some of

2 our district courts to treat habeas differently. But if this is so, we should join

3 other circuits and reconsider our direct appeal case law, and not make an

4 additional, unnecessary, and undesirable distinction between habeas and direct

5 appeal.

6 I.

7 Succinctly, the question that I believe this case presents is whether district

8 courts should treat resentencing on the remaining counts after vacatur of a

9 conviction differently in habeas cases as compared to direct appeal cases. Peña

10 raised that question, but did not answer it, because in Peña a full resentencing

11 would not have been required, even if the case had been on a direct appeal, as the

12 resentencing would have been purely ministerial.

13 I begin by noting that the harm to a defendant who is denied a de novo

14 resentencing hearing is no different in the habeas and direct appeal contexts. The

15 risks of violating defendants’ right are the same: sentencing a defendant based on

16 something other than “the constellation of offenses for which the defendant was

2 21-1247-pr Kaziu v. United States

1 convicted.” Quinteri,

(emphasis added). Moreover, the burden on

2 district courts of conducting a full resentencing hearing is no greater following a

3 successful habeas challenge than following a successful direct appeal. 1

4 What reasons then might support a different treatment of the two? The

5 reason specifically mentioned in Peña is that statutory language in § 2255 explicitly

6 provides that district courts have the authority to correct as well as to resentence.

7 But that same authority has been assumed in direct appeal cases, and indeed it

8 was implicit in our holding that a full resentencing was not needed in cases where

9 the resentencing was purely ministerial. See, e.g., Powers,

10 (identifying the limited circumstance in which district court could correct a

11 sentence on remand rather than resentencing). And the same implicit grant of

12 discretion underlies the decisions of our sister circuits allowing corrections rather

13 than resentencing in many direct appeal cases. The fact that a statute expressly

14 confers authority to do what courts already had the power to do absent statutory

1 While we understand that the judicial system would be tasked with conducting resentencing hearings more regularly, we do not find the fiscal and administrative burdens associated with de novo resentencing particularly onerous. A de novo resentencing hearing—“a brief event, normally taking less than a day and requiring the attendance of only the defendant, counsel, and court personnel”—is not particularly onerous, either financially or administratively. United States v. Williams,

(2d Cir. 2005).

3 21-1247-pr Kaziu v. United States

1 language, does not tell us anything about when that authority should be used. It

2 does not guide us as to what would be an abuse of direction in the use of that

3 authority, and so does not justify a distinction in resentencing discretion for habeas

4 and direct appeal cases.

5 What other reason might then justify different treatment? The one

6 significant difference between habeas resentencing and direct appeal resentencing

7 is its effect on the finality of judgments. I therefore turn to whether the judicial

8 system’s interest in finality suffices to permit district courts to avoid full

9 resentencing in non-ministerial habeas cases.

10 II.

11 It is well established that finality “attaches” once a court of last review either

12 affirms a conviction on the merits or declines to consider a discretionary appeal,

13 or when the deadline to seek further appellate review has simply expired. See Clay

14 v. United States,

(2003). But even after finality “attaches,” the

15 interest in finality is not absolute, particularly in the context of criminal judgments.

16 Notably, in all these resentencing cases, finality has already been deemed

17 not to be determinative. Whether arising on direct appeal or on habeas, these cases

18 are before us because a conviction has been reversed despite finality. The question

4 21-1247-pr Kaziu v. United States

1 then becomes: is there an additional significant finality interest solely with respect

2 to the sentence?

3 In general, finality in sentencing does not bear the same weight as finality

4 does with respect to a conviction. 2 In the conviction context, there is significant

5 risk that evidence becomes stale as time passes between initial conviction and

6 post-conviction review, see Allen v. Hardy,

(1986) (per curiam).

7 And we seek to limit the psychological suffering of victims who might otherwise

8 be forced to testify again if the government has to retry the defendant, see Edwards

9 v. Vannoy,

, 263–64 (2021).

10 Conversely, faded memories of witnesses, loss of other evidence, or the

11 empathetic concerns we have for testifying victims are not issues that readily arise

12 in resentencing proceedings. In fact, in the sentencing context, the passage of time

13 potentially gives the district courts more information about the defendant—by, for

14 example, providing evidence of their rehabilitation (or lack thereof). 3 And

2 In a different context, the Supreme Court has expressly noted that finality in sentencing does not bear the same weight as it does when guilt or innocence is at stake. See United States v. DiFrancesco,

(1980) ([T]he pronouncement of sentence has never carried the finality that attaches to an acquittal.”) 3 See, the basis of the panel decision in this case.

5 21-1247-pr Kaziu v. United States

1 although the district court is required by § 3553(a) to account for the harm to any

2 victims, it can often do so without the victims being present, so there is less risk

3 that de novo resentencing will subject victims to additional emotional trauma.

4 Finality has also been invoked by the Supreme Court to maintain public

5 “confidence in the integrity of [judicial] procedures,” see United States v. Addonizio,

6

, 184 n.11 (1979), and to avert “delay” that could otherwise “impair the

7 orderly administration of justice,” Custis v. United States,

(1994).

8 But, these justifications, too, are of significantly reduced force in the

9 sentencing context. We do not understand how insisting on the finality of a

10 sentence that was potentially based in part upon an illegal conviction could

11 possibly instill confidence in the courts. Indeed, we can think of few greater

12 frustrations to the public’s faith in a criminal justice system than the inability to

13 remedy judicial decrees that may improperly restrain an individual’s liberty.

14 Additionally, both Congress and the United States Sentencing Commission

15 (the “Sentencing Commission”) have recently made clear that resentencing can be

16 appropriate, even many years later, thereby casting doubt on the importance of

17 finality in the sentencing context generally.

6 21-1247-pr Kaziu v. United States

1 In 2018, Congress passed the First Step Act, applying the Fair Sentencing

2 Act of 2010’s correction in the disparity of crack and powder cocaine retroactively.

3 See

(b),

, 5222. This permitted prisoners

4 sentenced before 2010 – under the outdated crack cocaine sentencing framework

5 – to petition a court for reconsideration. From December 2018 to January 2020,

6 2,471 orders for sentence reductions were completed. 4

7 In November 2023, the Sentencing Commission adopted Amendment 821:

8 an amendment to the criminal history provisions found in Chapter 4 of the

9 Guidelines Manual. See U.S. Sent'g Guidelines Manual § 4A1.1, 4C1.1 (U.S. Sent'g

10 Comm'n 2023). Amendment 821 includes two key modifications. In Part A of the

11 Amendment, the Sentencing Commission reduced their “Status Points”

12 calculation, decreasing them by one point if an individual has seven or more

13 criminal history points, and eliminating Status Points entirely for those with six or

14 fewer points. 5 In Part B, the Sentencing Commission created a new guideline

4 U.S. Dep’t of Just., Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation (Jan. 15, 2020), https://www.justice.gov/opa/pr/department-justice-announces-enhancements-risk-assessment- system-and-updates-first-step-act. 5 U.S. Sent’g Comm’n, Amendment 821, https://www.ussc.gov/guidelines/amendment/821.

7 21-1247-pr Kaziu v. United States

1 entirely, providing for a decrease of two offense levels for those whose offense did

2 not include specific aggravating factors. 6 The Sentencing Commission voted to

3 allow delayed retroactive application of Amendment 821 starting February 1,

4 2024, enabling those currently incarcerated to reduce their current sentence

5 accordingly by petitioning the court. 7 The Sentencing Commission estimates that

6 over 18,000 incarcerated individuals will be eligible for a lower sentencing range

7 through either Part A or Part B. 8

8 Additionally, I note that given the statutory limits on the timing and number

9 of § 2255 petitions, let alone the obstacles to successful ones, a requirement of

10 plenary resentencing upon vacatur of one of multiple convictions will simply not

11 be that burdensome. As such, the interest in finality can not be enough to

6 Id. 7 U.S. Sent’g Comm’n, U.S. Sentencing Commission Votes to Allow Retroactive Sentence Reductions and Announces its Next Set of Policy Priorities (Aug. 24, 2023), https://www.ussc.gov/about/news/press-releases/august-24-2023. 8 U.S. Sent’g Comm’n, Analysis of the Impact of 2023 Criminal History Amendments

(Parts A and B) if Made Retroactive (May 15, 2023), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity- analyses/2023-criminal-history-amendment/202305-Crim-Hist-Amdt-Retro.pdf (estimating that 11,495 incarcerated individuals would be eligible under Part A and 7,272 individuals under Part B).

8 21-1247-pr Kaziu v. United States

1 overcome defendants’ interest in not being sentenced, even in part, for crimes they

2 did not commit.

3 Finally, it is significant that the grounds on which the panel is requiring full

4 resentencing in this case – a different judge and possible rehabilitation – are both

5 more likely to be present in habeas cases than in direct appeal cases (due to the

6 usually significant time gap from the affirmance of a sentence and a successful

7 habeas petition). Again, both considerations directly undercut interests in finality. 9

8 III.

9 I recognize that our strict de novo resentencing rule is far from universally

10 adopted by our sister circuits; significantly, various circuits do not adopt a bright-

11 line rule for when resentencing must occur. They permit corrections rather than

12 resentencing in a fair number of cases on direct appeals. Critically, these circuits

13 usually do the same in habeas cases. Our circuit precedents foreclose corrections

9 Moreover, as we noted in the panel opinion, the government’s purported interest in finality has been, at best, inconsistent. When given an opportunity to increase a sentence, the government has argued for a full resentencing, but in the instant case, where resentencing could plausibly be lowered, the government maintains that finality should foreclose this appeal. The government has not explained this asymmetry.

9 21-1247-pr Kaziu v. United States

1 unless the resentencing would be purely ministerial, and I would hold that the

2 same rule applies to habeas cases.

3 In other words, while there is variation in how each circuit handles

4 resentencing discretion, the circuits trend towards the same rules applying to

5 habeas and direct appeals cases. The difference between us and our sister circuits

6 mostly stems from generally divergent views as to when full resentencing, rather

7 than sentence correction, is required; it need not reflect a broader difference in how

8 we treat direct appeals as compared to habeas proceedings. 10

10 See the Eleventh Circuit has adopted a “sentencing package” framework in habeas and direct appeal cases. After the vacatur of a conviction “the district court has the authority to recalculate and reconsider [the defendant’s] sentence for it to comport with the district court’s original intentions at sentencing…That is as true when the unbundling occurs in a § 2255 proceeding as it is when it happens on direct appeal. United States v. Fowler,

(11th Cir. 2014). (internal quotation marks and citation omitted) The Ninth Circuit in habeas cases holds the “decision to restructure a defendant's entire sentence when only one of the counts of conviction is found to be invalid is discretionary” even if the sentences are grouped for sentencing purposes. Troiano v. United States,

, 1086–87 (9th Cir. 2019). This mirrors the same discretion following a direct appeal. United States v. Evans-Martinez,

(9th Cir. 2010). The Third Circuit has also adopted a “sentencing package” doctrine. The sentencing package doctrine applies when a vacated count was interdependent with the preserved counts of conviction, “result[ing] in an aggregate sentence, not sentences which may be treated discretely.” United States v. Miller,

(3d Cir. 2010). Originally the Third Circuit had complete symmetry between habeas and direct appeal when, following vacatur, a district court was entitled, but not required, to resentence de novo. United States v. Davis,

(3d Cir. 1997). The Third Circuit has since revised its position and held that when a vacated count is interdependent, “[d]istrict courts should resentence de novo.” United States v. Ciavarella,

(3d Cir. 2013) (emphasis added). While the Third Circuit has not affirmatively

10 21-1247-pr Kaziu v. United States

1 Thus, while Peña agreed with the government “that every circuit to analyze

2 this issue has held that de novo resentencing is not required in this context[,]” this

3 is not contrary to my position

, 619. Again, Peña referred to a strictly

4 ministerial resentencing, so even under our strict, categorical rule de novo

5 resentencing was not required, and correspondingly under any of our sister

6 circuit’s abuse of discretion standards a full resentencing would certainly not be

restated that the symmetry originally detailed in Davis remains good law, they have implicitly affirmed it through the denial of a certificate of appealability following a successful habeas petition “the District Court acted within its discretion when it declined to conduct a de novo resentencing…[T]he vacated counts of conviction are not 'interdependent' with the remaining counts, as that term is used in our sentencing-package-doctrine case law. United States v. Ciavarella, No. 20-2862,

, at *1 (3d Cir. Oct. 14, 2021). Davis was further affirmed in a recent concurrence: "[The sentencing package doctrine] applies both when a conviction is vacated on appeal and when a conviction is vacated by a district court on collateral review." United States v. Grant,

, 213 (3d Cir. 2021) (Ambro, J., concurring). Conversely, the Sixth Circuit has established a distinction between their direct appeal and habeas approach. In habeas, de novo resentencing is not required following every successful § 2255 petition, as “not every multi-count judgment presents a sentencing package in which vacating the sentence on one count unravels the remaining sentences." United States v. Augustin,

, 323 (6th Cir. 2021) (internal quotation marks omitted) (emphasis added). This is distinct from the Sixth Circuit’s approach in direct appeal cases, where unless the court specifically outlines that their remand is limited following vacatur, the district court “requires the district court to conduct resentencing de novo.” United States v. Garcia-Robles,

(6th Cir. 2011). A primary reason for the Sixth Circuit’s position, however, is an argument I have already dismissed: Because § 2255 enumerates both correcting and resentencing as options, the Sixth Circuit reasoned that this grants district courts “broad discretion” in choosing between them Augustin, 16 F.4th at 232. But as addressed earlier, the statutory granting of authority provides no insight into when that authority can be properly exercised.

11 21-1247-pr Kaziu v. United States

1 required. Though our sister circuits may provide greater discretion than we do

2 even by our holding today, this discretion in the habeas context is simply an

3 extension of their respective direct appeal rule. Thus any discretion identified by

4 Peña is a mirroring of direct appeal case law, and we should similarly adopt this

5 trend endorsed by our sister circuits of treating habeas petitioners no differently

6 than their direct appeal counterparts in resentencing proceedings.

7 Accordingly, I would take our precedents to their logical conclusion and

8 hold that, when any count in a multi-count conviction is vacated on a § 2255

9 petition – just as when any count in a multi-count conviction is vacated on direct

10 appeal – the district court may exercise its discretion to forgo de novo resentencing

11 and simply “correct” the original sentence only when the resentencing is “strictly

12 ministerial,” meaning that the defendant is already serving the lowest sentence for

13 each of his or her remaining convictions that is allowed by law. When that is so, the

14 district court can say with complete certainty that the unlawful conviction did not

15 inflate the overall sentence term for the remaining convictions. But when, as here,

16 the defendant has not received the lowest possible sentence for each of his

17 remaining convictions, the district court cannot be sure that the resulting sentence

12 21-1247-pr Kaziu v. United States

1 has not been inflated by the reversed conviction, and it therefore risks violating

2 the defendant’s rights.

3 IV.

4 I recognize that the approach of district courts and Peña to establish a

5 distinction between habeas and direct appeals stems probably from a distaste of

6 our traditional strict, de novo resentencing rule. I thus briefly consider the

7 advantage of moving away from our full resentencing rule.

8 District courts may reasonably argue that the time demands of our rule in

9 our direct appeal case law are considerable, and that attempts to circumvent this

10 requirement in habeas cases can provide relief to their docket. But this judicial

11 economy rationale may be short-sighted. Our clear, bright-line rule ensures that

12 while there may be more upfront temporal demands as district courts navigate a

13 resentencing, these demands pair with a corresponding, and significant, time-

14 saving benefit: the avoidance of appeals alleging that a district judge has

15 inappropriately applied discretion. In other words, the implementation of a broad

16 abuse of discretion standard may lead to even greater demands on the entire

17 circuit and cause greater uncertainty for both judges and habeas petitioners.

13 21-1247-pr Kaziu v. United States

1 I would also flag that before district courts determine whether a

2 resentencing is appropriate under a broad abuse of discretion standard, they are

3 likely to reengage with the facts, consult their notes from the original sentencing,

4 familiarize themselves with the petitioner’s record while incarcerated, and

5 perhaps review circuit holdings as to whether they would be inevitably required

6 to conduct a de novo resentencing. All of this is time consuming. Thus, the minimal,

7 if any, time-saving rationale of a discretionary approach may well be less

8 convincing than the efficiency of our current de novo rule.

9 In any event, while some may be perhaps, understandably, unhappy with

10 our current resentencing approach, attempts to create asymmetry in its application

11 between habeas and direct appeal is not the appropriate forum to express this

12 discontent. We have tools that we can use to express our dissatisfaction. If there is

13 sufficient concern – and there may well be – we can overturn our precedent

14 through an en banc, or perhaps by broadening the meaning of what is purely

15 ministerial. 11 But undercutting our rule by treating habeas petitioners differently

11 Our summary order in Ayyad, in effect, did slightly expand our circuit’s understanding of purely ministerial. The court reasoned that a de novo resentencing was unnecessary because any proceedings would, in principle, be “entirely academic[:}” given Ayyad’s current age and

14 21-1247-pr Kaziu v. United States

1 is not be the appropriate approach. If this issue is worth facing – let us do it

2 directly!

3 CONCLUSION

4 I would therefore hold that when a count of conviction falls, and when the

5 application of the preexisting sentence on the unreversed counts is not ministerial,

6 it is an abuse of discretion not to conduct de novo resentencing, and that this applies

7 regardless of whether the conviction fell as a result of a habeas or a direct appeal

8 challenge. 12

remaining mandatory consecutive sentences, “resentencing would not realistically lead to a sentence short enough for Ayyad to be released within his lifetime.” United States v. Ayyad, No. 20-3832,

, at *1 (2d Cir. Feb. 14, 2023). 12 The opinion concurring in the result makes many interesting, and perhaps valid, points about the desirability of giving district court broad discretion to decide whether to resentence or to correct when a single count of a multicount conviction is vacated following a successful habeas petition. Every one of those points, however, applies equally when a single count of a multicount conviction is reversed on direct appeal. And our court’s precedent, for better or for worse, is that on direct appeal a sentence may be corrected only when a new sentence would be strictly ministerial. Rigas, 583 F.3d at 118. The concurring opinion hardly considers whether and why a different rule should apply when the sentence is challenged through a habeas petition. The only distinction the concurrence advances is not convincing. The concurrence suggests that the discretion offered to the district court and to us is different in habeas and direct appeal cases. But that is not so. In each instance, the district court has discretion (whether inherent as in direct appeal cases or detailed by a statute as in habeas cases) as to correct or resentence. And in each instance the court of appeals rules as to what is the proper scope of that discretion. Our circuit has, in direct appeal cases, limited that discretion strictly. Other circuits have not. But the job district courts do, and the review courts of appeals then apply, is the same regardless of whether the cases arise on habeas or on direct appeal

15 21-1247-pr Kaziu v. United States

Incidentally, were we to rule on the grounds on which the concurring opinion is based, the remand would, I believe, permit the district court simply to correct the sentence rather than to go through a new and complete sentencing. And the concurring opinion’s footnote to the contrary does not change my view on this minor, but interesting, point. GERARD E. LYNCH, Circuit Judge, concurring in the judgment:

I agree with my colleagues that this case must be remanded for a full

resentencing proceeding. But I cannot join in the majority opinion, because I

believe that it subtly but significantly constrains the proper scope of discretion

available to a district court when one count of a multi-count conviction is vacated

on an application pursuant to

; conflates the substantive and

procedural rules governing that situation; and accuses the district judge in this

case of making an error that he did not in fact commit.

I. The Substantive Issue: Did the District Court Abuse Its Discretion by Declining to Resentence Kaziu?

In this case, the district court determined, on collateral review pursuant to

§ 2255, that Supreme Court decisions handed down after Kaziu’s conviction had

invalidated one of the four counts for which he had been convicted and

sentenced. In that situation, § 2255 expressly offers the district court a choice of

four potential remedies. A court that finds a conviction invalid must “vacate and

set . . . aside” the erroneous judgment, but then may choose whether to “[1]

discharge the prisoner or [2] resentence him or [3] grant a new trial or [4] correct

the sentence as may appear appropriate.”

(b). The first and third

options are not relevant here: The error infecting the judgment left Kaziu validly convicted and sentenced on three serious charges, so he could not simply be

discharged; that option would be appropriate only if the error had infected every

count of conviction. And the error warranting relief did not involve the fairness

of the trial, so there was no reason to order a retrial.

The district court was thus left with two options: to “resentence” the

petitioner or merely to “correct the sentence.” Section 2255(b) confides the choice

between those remedies to the sound discretion of the district court.

The two options are substantively different. Since Kaziu was convicted and

sentenced on four different charges, only one of which has now become invalid,

his sentence could be “correct[ed]” simply by vacating the conviction and

sentence on the invalid count, leaving the sentences imposed on the three

remaining counts intact. It is easy to imagine cases where such a limited

“correct[ion]” would be the obvious decision. Suppose, for example, a case where

the defendant had been convicted of two distinct crimes, committed on different

occasions, and of manifestly different degrees of seriousness, and had been

sentenced to five years in prison on the more serious charge, and two years on

the less serious charge, to be served consecutively. If the conviction on the less

serious count were found invalid on collateral review, the district court might

2 well find it entirely appropriate simply to vacate the conviction and sentence on

the invalid count, and to leave the sentence on the more serious charge intact.

The petitioner’s total sentence would thus stand “correct[ed].”

However, multi-count convictions often lead to sentences that are

interrelated in complicated ways. The United States Sentencing Guidelines, for

example, expressly encourage sentencing judges to arrive at a single,

comprehensive sentence that punishes a defendant for the totality of his crimes,

and then to impose sentences on separate counts consecutively or concurrently as

necessary to arrive at that total overall sentence. See U.S.S.G. § 5G1.2. Moreover,

the law permits a sentencing judge who must impose a mandatory consecutive

sentence on one count to reduce the otherwise appropriate sentence on a related

count, in order to arrive at a just cumulative sentence. See Dean v. United States,

, 71 (2017) (“Nothing . . . prevents a sentencing court from considering

a mandatory minimum under § 924(c) when calculating an appropriate sentence

for the predicate offense.”). In such circumstances, removing one brick from the

sentencing structure by vacating a single count could bring the entire carefully

constructed sentence toppling down, resulting in a sentence that would never

have been imposed if the now-invalid count had not been charged in the first

3 place. Confronted with such a case, the district court might logically decide to

“resentence” the petitioner – which would entail imposing an entirely new

sentence for all of the counts of conviction, including those that were not directly

affected by the error that required vacatur of the now-invalid count of conviction.

There are many variations on these themes, and a variety of reasons that

might affect the desirability of selecting one option or the other. As the majority

opinion agrees, the choice is to be made in the first instance, as a matter of

discretion, by the district court. Majority Op., ante, at 15. That discretion is not

unbounded; the option chosen by the district court may be reviewed by a court of

appeals, under the familiar “abuse of discretion” standard. But that review will

be limited, because an “abuse” of discretion occurs only when the district court

has “based its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence, or rendered a decision that cannot be located within

the range of permissible decisions.” United States v. Rigas,

(2d

Cir. 2009) (internal quotation marks omitted). Generally speaking, we will and

should grant considerable deference to the wisdom and experience of district

judges, who are far more familiar with sentencing options and considerations

than appellate judges. See United States v. Cavera,

(2d Cir. 2008)

4 (“[O]nce we are sure that the sentence resulted from the reasoned exercise of

discretion, we must defer heavily to the expertise of district judges.”)

In this case, my colleagues hold that the very experienced district judge in

this case erred – indeed, abused his discretion – by failing to “resentence” Kaziu

on his remaining counts of conviction after the vacatur of a single count of

conviction. To reach that conclusion, the majority relies on two facts: (1) Judge

Block was not the original sentencing judge, but rather had inherited the case

from another judge who had retired from the bench, and (2) Kaziu had a

“plausible” claim that he was a changed man from the one who had initially

faced sentencing. Majority Op., ante, at 17–22. In effect, the majority imposes a

rule that full resentencing will be required whenever these two factors are present.

I disagree, on two counts. First, as a matter of law, I find no basis in the

statute for restricting in this manner the discretion of the court that has granted

collateral relief. Second, as a matter of fact, it is apparent from the record that the

district court did not simply “correct” Kaziu’s sentence by vacating the invalid

sentence on the firearm charge, but rather resentenced Kaziu by lowering his

sentence on counts not substantively infected by any legal error.

5 A. Would It Be an Abuse of Discretion to Merely “Correct” a Sentence on this Record?

The majority concludes that Judge Block was required to “resentence”

Kaziu, because (1) Judge Block was not the original sentencing judge, and (2)

Kaziu presented credible evidence that he had rehabilitated himself during the

time that he had already spent in prison. But there is no legal basis for the

imposition of such a rule.

Certainly, nothing in the text of § 2255 cabins the district court’s discretion

to adopt one or another of the remedies it provides, or so much as alludes either

to the identity of the judge or to whether the petitioner’s circumstances have

changed. Nor is there any logical reason to impose such a rule. It is not even clear

that those factors are particularly relevant to the judge’s exercise of discretion, and

it is manifestly clear that they should not be considered controlling factors.

First, as to the identity of the judge. Recall that a common scenario in

which resentencing is potentially a logical remedy is one where the original

cumulative sentence may have been structured in such a way that the vacatur of

a single count while leaving the remaining sentences unaltered would undermine

the purposes of the original, carefully constructed, sentence. Where there is some

6 ambiguity about the purposes of the original sentence, the judge who imposed

that sentence in the first place may well be especially well placed to tell us

whether the sentences on any remaining counts were imposed because they were

appropriate sentences for those counts entirely independent of the now-vacated

count, or whether the sentences on those counts were influenced by the now-

vacated count. So an appellate court, when reviewing a habeas judge’s election

not to resentence a successful habeas petitioner on his remaining counts of

conviction, might, in some cases, find the identity of the original sentencing judge

to be a relevant factor.

But that observation hardly justifies a rule that a successor judge is barred

from concluding that a simple deletion of the invalidated sentence would be the

appropriate remedy. There are many circumstances in which any judge familiar

with sentencing practice would quickly recognize that a complex set of sentences

on interrelated counts was integrated in a way that no longer makes sense once a

particular count is undermined – or, alternatively, that the sentences on two

distinct counts do not present that problem. For example, suppose the sentencing

judge had stated on the record that it considered the mandatory consecutive

sentence required for bringing a firearm to a drug deal under

(c) to

7 be so severe that the court was significantly reducing the sentence it would

otherwise have imposed on the underlying distribution of narcotics charge alone,

in order to arrive at an overall fair sentence. In such a case, the interrelation

between the sentences would be obvious to any reader of the transcript.

Accordingly, the later invalidation of the § 924(c) count alone, without a full

resentencing on the other, still valid counts, would undermine the goals of the

original sentence. Even if the sentencing judge had not said so, if the sentence on

the drug charge was unusually low, for no apparent reason other than the need

to impose a mandatory consecutive sentence on the firearm charge, then the

judge on habeas review might easily infer that the mandatory consecutive

sentence affected the sentence imposed on the predicate drug charge.

Conversely, if the original sentence had imposed consecutive and

independently reasonable sentences on a more serious and a less serious charge,

based on two unrelated crimes, it may well be quite reasonable for a judge who

inherited the case to conclude that the subsequent invalidation of the less serious

charge would leave the reasoning behind the more serious sentence for the other

crime intact, such that striking the second, consecutive sentence without further

relief would adequately remedy the error. In either situation, both the newly-

8 assigned judge and the reviewing court would be as well placed as the original

sentencing judge to evaluate which remedy is appropriate under § 2255.

This very case perfectly illustrates the point. Kaziu was sentenced to

concurrent 27-year sentences on the now-vacated firearms charge under

(o) and on the lead charge of conspiracy to commit murder in a foreign

country under

(as well as to concurrent 15-year sentences on two

charges involving material support to terrorists under 18 U.S.C. §§ 2339A and

2339B). The sentence on the vacated invalid charge therefore did not add a day to

Kaziu’s prison sentence. That sentencing choice is understandable, given that his

handling of firearms was but one component of the larger course of conduct

encompassed by the lead count. On habeas review, Kaziu’s § 924(o) conviction

must be vacated because a conspiracy to commit murder can theoretically be

committed without the use, attempted use, or threatened use of force and

therefore cannot serve as a predicate crime of violence. United States v. Martinez,

, 354 (2d Cir. 2021) (“[C]onspiracy offenses are not categorically

violent crimes.”). However, the fact that Kaziu had possessed and trained with

firearms in the course of the conspiracy to murder would have been relevant to

the original sentence to be imposed on the conspiracy to murder count, whether

9 or not that possession was charged as a separate crime. The original court’s

decision to structure the sentences so that the separate firearms charge added

nothing to the punishment on the conspiracy to murder count makes sense only

if the aggravating factor of weapons use had already been accounted for in the

sentence on the latter count. Nothing about the structure of the sentences

suggests that the existence of a free-standing firearms count (as opposed to the

behavior underlying that count) had any impact on the length of the sentence on

the lead count.

Moreover, if we (or the judge adjudicating the § 2255 petition) needed

further insight into the intentions of the sentencing judge in this case, we would

not have far to look. The original judge on the case, the Honorable John Gleeson

(a particularly thoughtful sentencer who was later appointed to the United States

Sentencing Commission), carefully detailed the reasoning underlying his

sentencing decision at the time of its imposition. Judge Gleeson stated that “there

[i]s good reason to believe [that Kaziu was] ready and willing and able to kill in

the name of jihad, and, indeed, that [he] had decided to do just that.” Sentencing

Transcript at 22, United States v. Kaziu, No. 09-cr-660 (E.D.N.Y. Mar. 2, 2012), Dkt.

266. The judge doubted Kaziu’s expression of regret, which he characterized as

10 “opportunistic,” telling Kaziu that “[i]f you walked out the door right now, I

have no reason to doubt . . . that you’d try to pick up where you left off, maybe

succeed this time.” Id. at 29. Judge Gleeson made no reference whatsoever to a

separate conviction on the firearms count as a factor bearing on the total

sentence, and instead focused on the overall seriousness of Kaziu’s course of

criminal conduct and the need to incapacitate an “unrepentant” jihadist. Id. There

is no reason at all to believe that the judge’s assessment of Kaziu and his crimes,

and of the term of imprisonment that was “sufficient, but not greater than

necessary,” to accomplish the purposes of sentencing,

(a), would

have been any different had the prosecutor not included the now-vacated

firearms charge as a separate count of the indictment. In short, it does not make

sense to hold that a decision not to conduct a global resentencing might have

been within Judge Gleeson’s discretion had he remained on the bench, but is an

abuse of discretion, on the same facts, when made by Judge Block, to whom the

case was later reassigned.

Second, as to the defendant’s evidence of rehabilitation, such evidence

arguably should bear no weight in the decision of whether to resentence the

defendant on charges that were unaffected by the error that invalidated a single,

11 severable count. That is because current law (perhaps unwisely) strongly

disfavors revisiting sentences based on changes in a defendant’s circumstances

subsequent to the imposition of the original sentence.

Prior to the Sentencing Reform Act of 1984, Rule 35 of the Federal Rules of

Criminal Procedure authorized sentenced prisoners to seek by motion, and

federal district courts to grant, a new sentence, in the interests of justice. That

provision imposed a considerable burden on district courts, who were frequently

faced with repeated requests by prisoners serving long sentences to reduce their

sentences in light of new circumstances, including claims that the prisoner had

seen the error of his ways and worked successfully to rehabilitate himself. But

that burden was deemed worth the effort, to encourage and reward the positive

changes that we hope that punishment can produce in offenders. In a sentencing

system that was largely predicated on the goal of rehabilitation – a “correctional”

rather than “penal” system – the original sentence was deemed a prediction of

what term would be necessary to rehabilitate an offender, and both the

institution of parole and the availability of Rule 35 motions provided means to

determine whether the prediction had led to a longer term of imprisonment than

in the end had proved necessary.

12 But Congress changed that system radically in 1984, and created a

sentencing regime that was based more strongly on “just deserts” and deterrence,

factors that turn more on the nature of the crime committed than on the personal

characteristics of the offender or the goal of rehabilitation, and that sought

equivalent treatment of similar crimes based on a system of sentencing

guidelines. As part of that reform, Congress abolished parole and restricted Rule

35 motions for sentence reduction to a narrow set of cases involving productive

post-sentencing cooperation with the authorities. Those changes sharply limited

the power of a judge (whether the original sentencing judge or another who later

inherited responsibility for the case) to revisit the sentence at a later date due to

claimed rehabilitation.

Subsequent developments have reopened some avenues for

reconsideration. See United States v. Brooker,

, 231–37 (2d Cir. 2020)

(describing and interpreting the changes to compassionate release provisions

codified by The First Step Act of 2018,

Stat. 5194);

(c)(2) (permitting a prisoner to seek a (discretionary) sentence reduction

where the original sentence was based on a guideline recommendation that was

subsequently lowered by the Sentencing Commission). I welcome those changes.

13 Indeed, thoughtful commentators have suggested that the opportunities for such

relief should be even wider. See, e.g., MODEL PENAL CODE: SENTENCING, Appendix

A § 11.02 (AM . LAW INST., 2023) (recommending that legislatures authorize

“second looks” at sentences for prisoners who have served fifteen years of a

longer sentence). It is reasonable to think that long years in prison will change a

person; few of us are exactly the same person at age 40 that we were at 25, simply

through the passage of time and accumulation of experience, even without the

dubious “benefit” of imprisonment.

But that is not the system we have. The opportunities for a “second look”

at sentences remain carefully circumscribed. As we have recently noted, even the

expanded power of district courts to grant sentence reductions for “extraordinary

and compelling reasons,”

(c)(1)(A)(i), which permits courts to

consider a wide range of factors that might in particular cases meet that standard,

Brooker, 976 F.3d at 237, excepts “rehabilitation alone” as a ground for

compassionate reduction. United States v. Fernandez, --- F.4th ---,

, at *6 (2d Cir. June 11, 2024), citing

(t) (authorizing the

Sentencing Commission to “promulgat[e] general policy statements . . .

describ[ing] what should be considered extraordinary and compelling reasons for

14 sentence reduction,” but providing that “[r]ehabilitation of the defendant alone

shall not be considered an extraordinary and compelling reason”).

In any event, the various policy reasons that support constructing a system

that permits a “second look” at long sentences based on claims of rehabilitation

do not persuasively support requiring (or perhaps even permitting) courts to

consider such claims of rehabilitation in deciding whether or not to reopen a

sentence after one count of a multi-count sentence has been vacated on legal grounds.

Put another way, we have certain mechanisms that, under more or less

exceptional circumstances, permit the courts to revisit and reduce a sentence that

may have seemed appropriate at one time but that, due to changed

circumstances, may no longer seem necessary. But it is not clear to me that the

vacatur of one of many counts of conviction, based on some legal error infecting

that count alone, should trigger a revisitation of the original sentence that would

not be available apart from the presence of that legal error, which often has no

logical connection to the sentence to be imposed. It is even less clear that

evidence of rehabilitation should require (at least for judges who were not the

original sentencer?) reconsideration of the sentences imposed on the unaffected

counts. It seems arbitrary to mandate that a defendant should obtain a “second

15 look” resentencing based on evidence of rehabilitation simply because the

prosecutor fortuitously charged an invalid count, when the same prisoner,

offering the same evidence of rehabilitation and serving the same sentence on the

unaffected counts of conviction, would be barred from such reconsideration had

the prosecutor foreseen the legal problem with the invalidated count and not

charged it in the first place. And that is so whether the evidence of rehabilitation

is presented to the original judge, or to a judge who has inherited the case but

who can see that the original sentences on the remaining counts did not turn on

the additional sentence for the now invalid count, which can be corrected by

simply excising its sentence.

Evidence of rehabilitation is not mentioned in § 2255. Moreover, it is not

particularly relevant to the concerns of that statute, as § 2255 deals with the

consequences of legal error infecting a conviction on a particular charge, and not

with providing opportunities for evaluating whether a sentence that was once

appropriate is now less reasonable in light of a prisoner’s changed circumstances.

Indeed, we have strictly enforced the separation between the mechanisms for

compassionate modification of sentences and the § 2255 remedy for correcting

erroneous convictions. See, e.g., United States v. Amato,

, 66 (2d Cir.

16 2022) (rejecting effort to channel issues properly raised under § 2255 into

application for sentence reduction under § 3582).

I don’t mean to contend that the existence of changed circumstances

should have no bearing on the exercise of the discretion offered by § 2255 to revisit

the entire sentence. That question would be presented only in a case in which the

government appealed a district court’s decision to engage in resentencing after

considering such evidence. For present purposes, it is enough to point out that

reasonable jurists could take that position, based on the arguments presented

above. All that is necessary to evaluate the rule propounded by the majority

today is to note that there is no basis for, and a strong argument against, the

proposition that evidence of rehabilitation precludes a district court from

exercising its discretion not to resentence. Whether the defendant’s rehabilitation

must (or even may) be considered when a court exercises its discretion between

resentencing on all counts and simply correcting the sentence on the invalid

count, let alone whether that factor should be a controlling consideration that

presumptively requires a particular result, seems to me a difficult question, of the

sort that we should not reach out to decide unless that question is squarely

presented by the case before us.

17 And this is not such a case, for reasons to which I now turn.

B. Did Judge Block “Correct” Kaziu’s Sentence, or Did He “Resentence” Him?

In this case, Judge Block cannot be faulted for choosing the wrong remedy

by failing to “resentence” Kaziu. The district court here did not merely “correct”

the sentence to eliminate the punishment attached to the invalid count; rather, it

did in fact resentence Kaziu on the remaining counts that were unaffected by the

legal error that led to the vacatur of that invalid count. The district judge

understood himself to be resentencing Kaziu; he actually did so by reducing the

sentences originally imposed on the unaffected counts; and he reduced those

sentences because of the changed circumstances that the majority argues mandate

resentencing.

Let’s be very clear about this. First: The district court expressly stated that

it was resentencing Kaziu, and that in doing so it was taking into account the

evidence of his rehabilitation. See United States v. Kaziu, No. 09-cr-660,

, at *2 (E.D.N.Y. May 4, 2021) (“The Court has chosen to proceed with

re-sentencing based on the parties’ detailed written submissions.”) (emphasis

added). The court did not reduce the sentence as much as Kaziu wished,

18 explaining that the seriousness of his crimes continued to warrant a substantial

sentence. But it nevertheless took into account Kaziu’s claimed rehabilitation,

exercising the responsibility of sentencing judges to balance the varying goals of

sentencing, which include respecting the seriousness of the offense as well as

assessing the (original or changed) personal characteristics of the offender. See 18

U.S.C § 3553(a). In assessing what the district court did, it is at least relevant to

consider what the court said it was doing, and the district court here was clear

that it had chosen to “resentence.”

Second: We need not, and in some cases perhaps should not, take the court

at its word. Perhaps what the court characterized as a resentencing was really just

a correction of the sentence. The substance of what the court did is what matters,

even if the court inaccurately characterized its choice. But that is not so here. As a

substantive matter, and entirely apart from what Judge Block said he was doing,

his action cannot be characterized as a mere “correction” of Kaziu’s sentence. The

judge did not do the minimum necessary to ensure that the judgment no longer

punished Kaziu for a crime of which he has now been found to have been

improperly convicted. Rather, the judge revisited – and reduced – the sentences

imposed on the other, unaffected counts. That is the hallmark of a resentencing.

19 There is, indeed, nothing else one could call it. Kaziu used to be sentenced to

twenty-seven years on those counts, and now he has been sentenced instead to

serve two fewer years. That change was not the result of any legal error in the

original sentences on those counts, but was based on circumstances (his

rehabilitative efforts while in prison) that did not exist at the time of the original

sentence. His sentence was not merely corrected by excising the erroneous

conviction and sentence. He was, unquestionably, resentenced for crimes of which

he remains validly convicted. Indeed, Kaziu’s own submissions to this Court

consistently describe the district court’s action as a resentencing. See Appellant’s

Br. at 12 (“The Court should vacate Mr. Kaziu’s resentence.”) (emphasis added);

id. at 33 (arguing that “the resentence is procedurally and substantively

unreasonable”).

Third: To the extent that the majority believes that Kaziu was not

“resentenced” because the district court did not conduct a proper resentencing

(because, as discussed below, the court failed to hold an in-person hearing), any

such belief confuses substance with procedure. Assume that a judge, following a

guilty plea or trial verdict of guilt, simply directed the entry of a judgment

purporting to sentence the defendant to a term of incarceration without following

20 the sentencing procedures set out in Rule 32 of the Federal Rules of Criminal

Procedure. That would be error, and the defendant would have a valid basis for

appeal. But it would not be accurate to say that the judge failed to sentence the

defendant. The sentence may have been invalid or improper. But the judge

undertook to and did impose a sentence, and – until and unless the judgment

was invalidated on appeal – that judgment would authorize the defendant’s

imprisonment. The substance of the action is what dictates the procedure that

must be followed; the procedure that was followed does not dictate how we

characterize the substance of the action. The same is true here: the substantive

choice made by the district court can be characterized only as a resentencing.

Whether the court erred in how it executed that choice is a different, procedural,

question, that I consider below.

In short, the district court here cannot be accused of abusing its discretion

by declining to resentence Kaziu. It did resentence him. We have no occasion to

decide here whether it would have been an abuse of discretion for the court to have

selected another remedy made available by § 2255 (the question the majority

opinion, and Part I.A of this opinion, addresses) because the district court

selected the very remedy that the majority believes he was required to select. Nor

21 is there any need to decide whether it was appropriate, let alone required, for the

judge to consider Kaziu’s claimed rehabilitation in deciding whether to

resentence him: the government does not argue that the court should not have

considered that factor, and Kaziu does not argue that the district court did not,

but should have, considered it in deciding whether to resentence. (Kaziu’s

principal argument, rather, is that the district court did not give enough weight to

that factor.)

But if the district court did resentence Kaziu, how did the judge err, and

why do I agree that further proceedings are necessary? The answer lies not in the

substance of the remedy that the judge chose, but in the procedure that is required

to effectuate that choice.

II. The Procedural Issue: Having Decided to Resentence Kaziu, Did the District Court Err in Failing to Conduct an In-Person Procedure, Including Allowing Kaziu the Right to Address the Court?

Having elected to resentence Kaziu on all counts of the indictment, the

district court was required to follow the procedures attendant on a sentencing.

The Federal Rules of Criminal Procedure lay out those procedures. To protect the

defendant’s rights, Rule 32(i) sets out a number of specific requirements that are

akin in many respects to those governing guilty pleas, in that they require the

22 judge to address the defendant personally and to verify that the defendant is

conversant with the nature of the information to be considered at sentencing.

Thus, the court must establish that the defendant and the defendant’s counsel

have reviewed the presentence report and any addenda to that report, Rule

32(i)(1)(A), and advise the defendant and his attorney of any information

excluded from the report on which the court will rely in sentencing, Rule

32(i)(1)(B). The court must then rule on any factual disputes about such

information or make clear that a ruling is unnecessary because the matter will not

be considered or will not affect the sentence. Rule 32(i)(3)(B). Most importantly,

before a sentence is imposed, the court must provide defense counsel with an

opportunity to speak on the defendant’s behalf, Rule 32(i)(4)(A)(i), and “address

the defendant personally in order to permit the defendant to speak or present

any information to mitigate the sentence,” Rule 32(i)(4)(A)(ii).

Notably, all of those rights of the defendant and procedural obligations on

the Court presuppose that the sentencing takes place in open court, with the

defendant personally present. As we have recognized repeatedly, the defendant

has a right under the Federal Rules to be present, not only at initial appearances

and pleas, Rule 43(a)(1), and at every trial stage, Rule 43(a)(2), but also at

23 sentencing, Rule 43(a)(3). That right to presence may be waived by a defendant,

but even in the midst of a pandemic, the right to in-person sentencing is

preserved absent the defendant’s voluntary and knowing waiver of that right.

United States v. Sealed Defendant One,

, 700 (2d Cir. 2022); United States

v. Leroux,

, 121 (2d Cir. 2022). Even in a public health emergency, a

court may not conduct a sentencing solely on papers submitted by the parties

absent the defendant’s consent, much less over the defendant’s objections.

Moreover, we have been equally emphatic that these rules apply to

resentencings, such as proceedings on remand after an original sentence has been

vacated. See United States v. Maldonado,

(2d Cir. 1993) (holding

that right to in-person allocution by the defendant applies during resentencing

after appeal). The right of allocution, in particular, is so important that the failure

to provide that opportunity may be corrected even absent a contemporaneous

objection, and so fundamental that it may be the subject of an appeal despite an

otherwise valid waiver of the right to appeal. United States v. Lajeunesse,

, 695 (2d Cir. 2023) (concluding that appellate waiver in plea agreement did

not preclude appeal of a sentencing that omitted allocution, and remanding for

resentencing despite defendant’s failure to object).

24 Those rights are attendant on the conduct of a sentencing or resentencing.

Once the substantive decision to engage in resentencing is made, the procedural

obligations attendant on that decision must be followed. In other words, contrary

to the reasoning of the majority, a district court that imposes a sentence, or that

resentences a defendant, errs procedurally by failing to comply with the specified

procedural rules. A judge that fails to comply with those rules has erred, but has

erred precisely because he did sentence or resentence the defendant without

complying, and not because he has done something other than sentence or

resentence the offender.

Moreover, once the decision to resentence is made, there is no dispute that

the district court must impose the new sentence based on the law and the facts as

they exist at the time of resentencing, applying the § 3553(a) factors, including the

history and characteristics of the offender, anew. See United States v. Weingarten,

, 711–12 (2d Cir. 2013); see also United States v. Flack,

,

241–42 (6th Cir. 2019) (“[T]he district court here—to its credit—chose to apply the

§ 3553(a) factors anew [when it imposed the original sentence upon the

remaining counts of conviction after vacatur of another count pursuant to a

§ 2255 petition], which meant that its action was a resentencing and that the court

25 was required to hold a sentencing hearing.”). That principle unquestionably

permits the district court to consider evidence that the petitioner is no longer the

same person who was before the court at the time of the initial sentencing.

That, in short, is the error that the district court committed in this case. Its

error lay not in selecting a remedy other than resentencing in a case in which it

was an abuse of discretion to select some other remedy. Rather, the court erred in

failing to comply with the procedural requirements for sentencing (or

resentencing) a defendant after having selected the remedy of resentencing – the

very remedy that the majority unnecessarily insists was required, and the

propriety of which has not been challenged by either Kaziu or the government.

It should be noted those procedures are not required in order to correct or

modify a sentence. Had the district court chosen to correct the sentence by

vacating the sentence imposed on the invalid count, no precedent of which I am

aware would require personal presence or allocution by the defendant before that

remedy was executed. Similarly, Rule 35(a) continues to permit the court, within

14 days after sentencing, to “correct” a sentence that results from “arithmetical,

technical, or other clear error,” and Rule 36 permits the court at any time to

correct a clerical error in the judgment or record, with only the minimal

26 procedural requirement of “giving any notice it considers appropriate.” And

sentence reductions or modifications under the First Step Act (and related forms

of relief) are not considered plenary resentencings, and do not require

compliance with the procedural rules attendant on sentencings. See United States

v. Moyhernandez,

, 198 (2d Cir. 2021), vacated on other grounds by

Concepcion v. United States,

(2022); United States v. Moore,

,

92 (2d Cir. 2020) (holding that “the First Step Act does not entail a plenary

resentencing, and . . . does not obligate a district court to recalculate an eligible

defendant’s Guidelines range”). But the proper course is to decide what kind of

remedy is being required, and only then to address what procedures are

necessary in order to accomplish that remedy.

One further note. Kaziu sought, and received, the remedy of resentencing.

The government argued in the district court that resentencing was not required.

And while the government continues on appeal to maintain that Kaziu was not

entitled to a hearing, it does not argue that resentencing – the district court’s two-

year reduction of Kaziu’s sentence – was impermissible on these facts. The

government could perhaps have cross-appealed on the ground that the court

abused its discretion by not choosing the remedy of correcting the sentence, or

27 that the reduced sentence imposed on Kaziu on the unaffected counts should be

vacated as procedurally improper. But it did not. We therefore have no occasion

here to address whether the government was in any way aggrieved by the

district court’s decision to resentence. There is no obstacle, however, to Kaziu’s

objection to the procedure under which he was resentenced. Kaziu argues that he

deserved a greater reduction than the district court provided, and he might well

have achieved such a reduction had the proper procedures been followed. For

example, if allowed the right of allocution, he might have been able to persuade

Judge Block that his rehabilitation was more profound, and entitled to greater

weight, than might appear on a paper record. He is thus fully entitled to appeal

on the ground that the district court did not properly resentence him.

III. What Difference Does It Make?

The panel is unanimous about what needs to be done in this case. I fully

concur in the judgment, which requires the district court, on remand, to engage

in a proper resentencing. So the question naturally arises, why do I complain

(and at such great length!) about the route the majority takes in getting to that

result? Why can’t we all just get along?

The principal importance of the distinction is that the majority’s approach

28 constrains the discretion granted to district judges by § 2255, and, in my view,

does so unnecessarily. District judges are in the business of making sentencing

decisions. Whatever their backgrounds before coming on the bench, their job as

district judges quickly shapes them into sentencing judges. The vast majority of

criminal cases do not go to trial. Sentencing becomes the most important decision

that judges make in most of those cases. That is not to say that district judges

always execute that responsibility wisely. But they are steeped in the rules and

procedures attendant on sentencing, and in the substantive decisions that they

have to make, week in and week out, about the appropriate sentences to be

imposed. Appellate judges do not share that experience – indeed, for the most

part, we have abdicated substantive review of sentences, undertaking to correct

sentences as “substantively unreasonable” only when the sentence “cannot be

located within the range of permissible decisions.” United States v. Thavaraja,

(2d Cir. 2014) (quotation marks omitted); see, e.g., United States v.

Sawyer,

(2d Cir. 2018) (affirming substantive reasonableness of

twenty-five year sentence, imposed on resentencing after previous appellate

review had found the original thirty year sentence to be substantively

unreasonable, while noting that “[t]he sentence is barbaric without being all that

29 unusual”).

We do that precisely because we lack expertise, but our reticence further

restricts our ability to assess what are and what are not reasonable choices. I

would be very cautious about telling judges how to select among remedies that

Congress has given them in order to effectuate a just result where some form of

error has later been identified on collateral review – which, in practical terms,

often means that the highest and most remote of appellate judges have changed

the rules after the fact to overturn prosecutorial or judicial decisions that

appeared reasonable or even routine when made. That such newly discovered

errors need to be corrected is axiomatic, but precisely how to accomplish the

repair when a brick has been removed from a sentencing structure is not always

obvious from the appellate cloister. A judge who has the daily experience of

creating such structures is better suited to exercising that discretion than

appellate judges who may have little such experience, or whose experience may

date from the time of an earlier sentencing regime.

That is not to say that appellate judges should be mindlessly deferential.

But it does suggest that caution is in order before removing a tool from the

district judge’s toolbox, or dictating how particular tools should be utilized. At

30 the very least, we should not tell a district judge that he erred in failing to do

something that he actually, and explicitly, did, and thereby tell other district

judges, on the strength of that erroneous conclusion, that they ought

presumptively to select one remedy rather than another. Appropriate caution in

reaching out to unnecessarily decide issues counsels against dictating a rule

about how discretion should be exercised, when in fact the case before us does

not present that issue.

This case is a simple one, and it can be – and should have been – decided

simply. The district court did err, but not because this case is one in which

resentencing was mandated. Since the judge did choose that remedy, and no

party argues that the choice was wrong, we have no occasion to direct that other

judges should in most circumstances make the same choice. What is clear is that,

having made that choice, the judge was required to follow the procedures

occasioned by that choice. That seems to me an unexceptionable conclusion. We

ought not lay down rules for unanticipated circumstances by misconstruing the

circumstances before us, particularly when the rules governing the actual

circumstances of this case are clear and well established.

I therefore respectfully concur only in the ultimate conclusion that the

31 district court, having decided to resentence Kaziu on the counts unaffected by the

error that led to vacating the firearms count in the indictment, must conduct that

resentencing pursuant to the rules entailed by that decision, and thus concur in

the judgment, but not the reasoning, of the Court.

IV. A Postscript on the Other Concurrence and the Majority’s Response

I add some further thoughts in response to Judge Calabresi’s concurring

opinion, and the majority’s brief response to the present opinion. Judge

Calabresi’s opinion states that while he fully agrees that the case can be decided

on the grounds advanced in his opinion for the Court, he believes that we should

actually go further, and hold that in every case in which a conviction on a single

count is vacated on collateral review under § 2255, the district court may not

simply correct the error and is always required to engage in a complete

resentencing unless that resentencing would be “strictly ministerial.” We should

do that, he contends, because that is what we require when we remand a case for

resentencing on a direct appeal. See Concurring Op. (Calabresi, J.), ante, at 2; see

also United States v. Powers,

(2d Cir. 2016); Rigas, 583 F.3d at

116–17, United States v. Quintieri,

, 1228 & n.6 (2d Cir. 2002).

Imposition of such symmetry would of course eliminate the narrow exception

32 recognized in the majority opinion; our inflexible practice on direct appeal does

not change because the case is being remanded to the same judge, or because the

appealing defendant has not offered any evidence of rehabilitation in the

relatively short time between the imposition of sentence and the resolution of his

appeal.

The only affirmative reason offered for this outcome is the appeal of

symmetrical treatment of direct appeals and collateral review. That is hardly a

persuasive rationale for extending a rule that Judge Calabresi himself

acknowledges makes us an outlier among the Circuits.

More importantly, the argument for symmetry ignores the obvious

distinctions between direct and collateral review. Our case law mandating

remand for resentencing on direct review concerns what we choose to require

district courts to do when we identify an error in the conviction. That, it seems to

me, is a question about the scope of our discretion. No statute (or binding

precedent from the Supreme Court) limits our choice, and we have chosen to

remand for complete resentencing. Like Judge Calabresi, I put aside any doubt

about the wisdom of our choice; our own precedent binds us, and the mandates

that we issue to the district courts on direct appeals bind those courts to comply

33 with the global resentencing that we demand.

But the situation on collateral review is different. In that situation, there is a

binding rule that is exogenous to our discretion. Congress has outlined the

procedures to be followed on collateral review in federal cases. It has channeled

petitions for such review to “the court which imposed the sentence,”

(a), and directs that court – the district court – upon finding an error that

justifies collateral attack, to “discharge the prisoner or resentence him or grant a

new trial or correct the sentence as may appear appropriate,”

§ 2255(b) (emphasis

added). In other words, Congress has vested the decision as to the appropriate

remedy to the district court, with instructions to select a remedy that “appear[s]

appropriate.” Id. I fail to see how we, as a Court of Appeals reviewing the district

court’s choice, obtain the authority to essentially delete one of the options offered

to the district court by Congress, that of simply “correct[ing]” the sentence, in the

interest of imposing a result symmetrical to our self-imposed rule on direct

appeal. The statute authorizing collateral review uses unmistakable language of

discretion. That language surely allows us to review for the abuse of that

discretion, but it allows no more than that.

And how should we identify an abuse of discretion when a district court

34 finds it “appropriate” to correct an error in a count of conviction by simply

deleting the sentence imposed on that now-vacated count? The logical question

to ask is whether, on the record before the district court, the district court had a

reasonable ground to conclude that declining to resentence the prisoner on other

counts of conviction unaffected by the error was a remedy sufficient to place the

prisoner in the position that he would have been in had the error not been

committed in the first place. Neither the majority opinion nor Judge Calabresi’s

concurrence engages with the record in this case in an effort to show that it

would have been unreasonable for a district court, on this record, to reach such a

conclusion. A review of facts of the case and of Judge Gleeson’s explanation of

his sentence, as set forth above, gives no basis for concluding that the mere

excision of the conviction and concurrent sentence on the § 924(o) count would

be insufficient to leave Kaziu in the same position that he would have been had

the prosecutor failed to charge that offense at the outset of the case.

Where the issue arises in a direct appeal, the district court has committed

an error, and it is for us to decide what to do about it. In a departure from the

practices in other federal courts of appeals, we have elected to avoid engaging in

that kind of review and have instead chosen to remand, where such errors are

35 found, for a complete resentencing. So be it. But the circumstances in such cases

are quite different from those in which the district court itself has identified an

error on collateral review, and has exercised the discretion provided to it by

statute to determine an appropriate remedy.

Finally, neither Judge Calabresi’s concurrence nor the opinion for the

Court engages with the most glaring flaw in the majority’s disposition of this

case. The vast bulk of the analysis in all three opinions concerns an issue that

simply is not presented by the record before us. The majority, Judge Calabresi

writing for himself, and I in this opinion all address a matter that is properly

formulated in the subjunctive: would it have been an abuse of discretion had Judge

Block chosen to leave the sentences on the unaffected counts untouched, and

instead “correct[ed]” the error by excising the concurrent sentence on the invalid

count? Neither of the two opinions authored by Judge Calabresi recognizes that

Judge Block in fact did what those opinions say that he should have done – he

both vacated the invalid count and imposed a new, lower, sentence on the other

counts. In other words, Judge Block resentenced. As discussed above, he erred by

36 failing to comply with the procedures incumbent on that decision.1

1 I do not agree that the disposition I propose would allow Judge Block, at this stage of the proceeding and on this record, to now renounce his earlier decision and forgo resentencing. See Concurring Op. (Calabresi, J.), ante, at 16 n.12. Absent some extraordinary rationale unforeseeable to me, it would seem a classic abuse of discretion for the district court, having decided that resentencing on the remaining counts was appropriate, to announce that it had changed its mind and would now prefer to avoid the bother of complying with the procedural requisites of resentencing. Of course, if the record presented at an in-person resentencing undermined Kaziu’s claims of rehabilitation, or otherwise justified a refusal to lower the sentences on those counts, that would be a different matter, but that would still be a resentencing and not a mere correction of the erroneous judgment.

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