21-209 United States v. Fnu Lnu

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of September, two thousand twenty-four.

PRESENT: DENNIS JACOBS, RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 21-209

FNU LNU, AKA CRUZ MANUEL RAMOS, AKA GARABATO, AKA LUIS, AKA CRUCIGRAMA,

Defendant-Appellant,

RAFAEL SANTAMARIA, AKA CHUCHO, JUAN TAVERAS, AKA MERO, RICARDO BOBE, AKA MAESTRO, JAVIER FRANCO, AKA GRANDE, Defendants. * _________________________________________

FOR APPELLANT: ALLEGRA GLASHAUSSER, Federal Defenders of New York, New York, NY.

FOR APPELLEE: DANIEL H. WOLF & Hagan Scotten, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Swain, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the matter is REMANDED to the district

court for further proceedings consistent with this order.

Defendant-Appellant Fnu Lnu, aka Cruz Manuel Ramos appeals from a

February 1, 2021 amended judgment denying in part and granting in part his

petition to vacate his sentence under

. We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal, to

which we refer only as necessary to explain our decision to remand.

* The Clerk’s office is directed to amend the caption as reflected above.

2 I. Procedural History

In 2009 and 2010, in two separate trials, juries in the Southern District of

New York convicted Ramos of six counts. The district court sentenced Ramos to

a total of 348 months’ imprisonment and 12 years’ supervised release. The

sentences on each count were as follows: (Count 1) conspiracy to commit Hobbs

Act robbery, in violation of

, 240 months’ imprisonment (the

statutory maximum) and 3 years’ supervised release; (Count 2) attempted Hobbs

Act robbery, in violation of

, 240 months’ imprisonment (the

statutory maximum) and 3 years’ supervised release; (Count 3) brandishing and

using a firearm during and in relation to a crime of violence (during the

attempted robbery), in violation of

(c)(1)(A)(ii), 60 months’

imprisonment and 5 years’ supervised release; (Count 12) conspiracy to

distribute and possess with intent to distribute cocaine, in violation of

, 1 288 months’ imprisonment and 12 years’ supervised release; (Count 14)

possession with intent to distribute heroin, in violation of

(a)(1)

and (b)(1)(C), 240 months’ imprisonment and 12 years’ supervised release;

1 Although the judgment characterizes Count 12 as a violation of “21 U.S.C. § 836,” that Count appears to concern

.

3 (Count 15) possession with intent to distribute heroin, in violation of 21 U.S.C.

841(a)(1) and (b)(1)(C), 240 months’ imprisonment and 12 years’ supervised

release. The sentences on each count were to run concurrently, except for

Ramos’s carceral sentence on Count 3, which was to run consecutively.

Ramos’s sentence was directly impacted in several ways by a prior New

Jersey felony conviction. First, the NJ conviction placed him in Criminal History

Category II, rather than Category I. Second, for Count 12, the NJ conviction

raised his mandatory minimum term of imprisonment from 10 to 20 years and

his mandatory minimum term of supervised release from 5 to 10 years. For

Counts 14 and 15, it raised his maximum term of imprisonment from 20 to 30

years, and his mandatory minimum term of supervised release from 3 to 6 years.

In total, the NJ conviction raised Ramos’s aggregate mandatory minimum term

of imprisonment from 15 to 25 years, and his aggregate mandatory minimum

term of supervised release from 5 to 10 years.

Ramos subsequently sought collateral relief under

for two

reasons. First, he sought vacatur of the § 924(c) conviction―Count 3―in light of

Johnson v. United States,

(2015). Second, in 2018, New Jersey vacated

Ramos’s 1996 conviction, concluding it was the result of racial profiling by the

4 State Police. Ramos argued that he should be resentenced on all counts, not just

Counts 12, 14, and 15―the counts directly mathematically affected by the

vacatur of the NJ conviction―because his sentences were interdependent.

The government did not oppose resentencing on Counts 12, 14, and 15

because of the vacatur of the NJ conviction; however, it did oppose resentencing

him on the remaining counts, arguing that they were not interdependent. The

government also opposed dismissal of the § 924(c) count, arguing that attempted

Hobbs Act robbery was a crime of violence. The government has since

abandoned this argument.

On September 2, 2020, the district court granted in part and denied in part

Ramos’s Section 2255 petition. FNU LNU v. United States,

, at *9

(S.D.N.Y. Sept. 2, 2020) (“Ramos”). The district court: (1) vacated Ramos’s

conviction on Count 3, (2) vacated the sentences imposed under Counts 12, 14,

and 15 in light of the vacatur of Ramos’s NJ conviction, and (3) declined to vacate

Ramos’s sentences on Counts 1 or 2.

The district court explained ”there [was] no proper basis for the vacatur of

the sentences imposed” on Counts 1 and 2 because those sentences were

unaffected by the NJ conviction.

. The applicable Guidelines range for

5 Ramos at the time of sentencing for every non-§ 924(c) count was 324 to 405

months’ imprisonment, based in part on his placement in Criminal History

Category II. Id. Absent the NJ conviction, Ramos would have been in Criminal

History Category I, and his Guidelines range on the non-924(c) counts would

have been 292 to 365 months’ imprisonment. Id. In either scenario, however,

“the statutory maximum sentence of 240 months capped the authorized

Guideline sentence for Counts 1 and 2 pursuant to U.S.S.G. section 5G1.1(a) and

thus became the advisory Guideline sentence for those counts.” Id. The district

court concluded:

Therefore, Petitioner’s 240-month sentences on Counts One and Two remain equal to the actual Guideline sentence for each count and remain below both the original and the recomputed ranges under the Guideline formulae; they are neither violative of law nor suggestive of any miscarriage of justice.

Id. The district court also rejected Ramos’s argument that the decrease in the

overall mandatory minimum as a result of the vacatur of the NJ

conviction―from 25 to 15 years―warranted resentencing on Counts 1 and 2. Id.

The court explained:

Petitioner asserts the resulting 25-year mandatory minimum term was “central” to the Court’s determination as to the appropriate sentence overall, not just on the narcotics counts, because the Court stated that it had “considered the role of the mandatory minimum

6 sentencing provisions with respect to the determination and structure of the sentence.” The Court’s acknowledgement of the mandatory minimums on the other counts when it imposed higher (but still below Guidelines) sentences on the narcotics counts and a lower, statutory maximum Guidelines sentence on each of the Hobbs Act counts suggests no legal error or otherwise improper connection between the narcotics sentences and the sentences on Counts One and Two.

Id. (internal citations omitted). Accordingly, the district court concluded there

was “no proper basis for vacatur of the sentences imposed” on Counts 1 and 2

“because the sentences are not unlawful and the impact of the vacatur of the

New Jersey Conviction and Ramos’ Count Three conviction does not otherwise

warrant relief under section 2255 from the sentences on Counts One and Two on

grounds of ‘a complete miscarriage of justice.’” Id. (quoting United States v.

Hoskins,

(2d Cir. 2018), cert. denied,

(2019)).

The district court resentenced Ramos on Counts 12, 14, and 15 on January

26, 2021. Given the district court’s ruling that it would not resentence him on

Counts 1 and 2, his sentence on those counts―20 years―was the lowest sentence

Ramos could practically receive on resentencing. At Ramos’s request, the court

sentenced him to 20 years of imprisonment on each count, concurrent, followed

by eight years of supervised release.

7 Ramos timely appealed, but did not seek a certificate of appealability. He

argues that the district court erred in refusing to resentence him on all counts

because (1) plenary resentencing is always required when one count of

conviction is vacated via a successful collateral attack, or (2) the district court

misunderstood its authority under Section 2255 to conduct plenary resentencing.

The government counters these contentions and argues that Ramos’s appeal

should be dismissed for failure to obtain a certificate of appealability (“COA”).

II. Certificate of Appealability

For jurisdiction over an appeal from a final Section 2255 decision to vest in

this Court, the district court or this Court must typically grant a COA. See

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

(2d Cir.

2000). Nevertheless, “a COA is not required to appeal a resentencing following a

successful § 2255 claim.” Kaziu v. United States,

, 90 n.3 (2d Cir. 2024).

Thus, a COA is not necessary to give us jurisdiction to review Ramos’s challenge.

III. Discretion to Resentence Under Section 2255

In the event of a successful collateral attack under Section 2255, the district

court “shall vacate and set the judgment aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the sentence as may appear

8 appropriate.”

(b). Section 2255(b) grants a district court “broad

and flexible remedial authority, having vacated and set the judgment aside [due

to a successful collateral attack], to resentence a defendant and correct the

sentence as appropriate.” United States v. Gordils,

(2d Cir. 1997)

(cleaned up); see also United States v. Peña,

, 618–20 (2d Cir. 2023);

Kaziu,

(2d Cir. 2024) (“[T]he plain text of § 2255(b) affords district

courts the authority to choose between, inter alia, conducting a de novo

resentencing on all remaining counts of conviction or merely correcting the

sentence.”). We review the district court’s election of a remedy under Section

2255(b) for abuse of discretion. Peña, 58 F.4th at 619–20.

In Kaziu, we rejected the argument “that de novo resentencing is

categorically required whenever a conviction is vacated on collateral attack.”

Kaziu,

. Rather, the decision to conduct a full resentencing on all

remaining counts of conviction when one or more counts are vacated rests within

the sound discretion of the district court. Peña, 58 F.4th at 619–20. We therefore

reject Ramos’s first argument that plenary resentencing is always required when

one count of a conviction is vacated via a successful collateral attack. See Kaziu,

.

9 But Kaziu reaffirms the district court’s discretion to resentence on all

counts. Kaziu,

. Upon reviewing the district court’s decision here,

it is unclear whether the district court understood it had discretion to resentence

Ramos on all counts, and, if it did, the basis on which it exercised its discretion to

decline to do so.

In its opening paragraph discussing Ramos’s request for resentencing on

Counts 1 and 2, the district court noted that “collateral relief under

is generally available ‘only for a constitutional error, a lack of

jurisdiction in the sentencing court, or an error of law or fact that constitutes a

fundamental defect which inherently results in a complete miscarriage of

justice.’” Ramos,

, at *8 (quoting United States v. Bokun,

(2d Cir. 1995)). The court’s decision not to resentence Ramos on Counts 1 and

2 may have been driven by the erroneous conclusion that it could not resentence

Ramos on those counts absent an error of law relating to those counts or a

miscarriage of justice. See

(“Petitioner’s 240-month sentences on Counts One

and Two . . . are neither violative of law nor suggestive of any miscarriage of

justice.”);

(“The Court’s acknowledgement of the mandatory minimums on

the other counts when it imposed higher (but still below-Guidelines) sentences

10 on the narcotics counts and a lower, statutory maximum Guidelines sentence on

each of the Hobbs Act counts suggests no legal error or otherwise improper

connection between the narcotics sentences and the sentences on Counts One

and Two.”);

(“Accordingly, the Court finds that there is no proper basis for

vacatur of the sentences imposed in respect of Counts One and Two,

notwithstanding the newly calculated Guidelines range and reduction in the

mandatory minimum for the narcotics counts, because the sentences are not

unlawful and the impact of the vacatur of the New Jersey Conviction and Ramos’

Count Three conviction does not otherwise warrant relief under section 2255

from the sentences on Counts One and Two on grounds of ‘a complete

miscarriage of justice.’” (quoting Hoskins,

).

To clarify the record and to facilitate our review of this appeal, we remand

to the district court pursuant to the procedures set forth in United States v.

Jacobson,

(2d Cir. 1994). The purpose of this remand is to allow the

district court to clarify (1) whether it understood and exercised its discretion

under 28 U.S.C § 2255 in declining to resentence Ramos on Counts 1 and 2, and

the basis on which it did so; or (2) if not, to exercise its discretion in the first

11 instance, including by indicating whether or not it would resentence if this Court

entered a vacatur.

The mandate shall issue forthwith, and jurisdiction shall be restored to this

Court without the need for a new notice of appeal if, within thirty days after

entry of the district court’s order, either party informs us by letter of the district

court’s decision. This letter should attach the district court’s order, and may be

accompanied by a writing, not to exceed ten double-spaced pages, providing

additional argument in light of the district court’s order. Upon the filing of the

letter, the opposing party may file a response of the same maximum length

within fourteen days. Following such notification, the reinstated appeal will be

reassigned to this panel, to be decided without additional oral argument unless

otherwise ordered.

* * *

For the foregoing reasons, this matter is REMANDED to the district court

for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

12