In United States v. Peña, No. 20-4192 (2d Cir. Dec. 13, 2022), the Circuit ruled that the District Court did not abuse its discretion when it declined to resentence the defendant de novo following the vacatur of two firearms convictions.
Peña was convicted in 2013 of three counts charging him with conspiring to commit, and committing, murder for hire, in violation of 18 U.S.C. § 1958. He was also convicted of two counts of using a firearm to commit murder, in violation of 18 U.S.C. § 924(j). The District Court sentenced him to five concurrent terms of life imprisonment.
Peña later filed a 28 U.S.C. § 2255 motion alleging that his two § 924(j) convictions were invalid. The District Court agreed and vacated those convictions. But the court refused to resentence Peña de novo on the remaining murder-for-hire counts, concluding that resentencing would be pointless because he was still subject to a mandatory life sentence on those counts.
The Second Circuit affirmed. It held, first, that de novo resentencing was not mandatory. While de novo resentencing is ordinarily required when a conviction is reversed or vacated on direct appeal, the Circuit declined to extend this default rule to the § 2255 context. “Section 2255’s plain text,” the court ruled, “which vests district courts with discretion to select the appropriate relief from a menu of options, precludes us from applying the default rule … to all cases that arise in the § 2255 context.” Slip op. at 11-12.
The Circuit further concluded that, on the particular facts here, the District Court properly chose not to resentence Peña de novo—because he still faced a mandatory life sentence on the murder-for-hire counts. But the Circuit appeared to recognize at least two circumstances in which it would (or at least could) be an abuse of discretion not to conduct a de novo resentencing: (1) where vacatur of a count “undermines the sentence as a whole,” or (2) “if a court must exercise significant discretion in ways it was not called upon to do at the initial sentencing.” Slip. op. at 14 n.1. The Circuit added: “It may be that in most cases in which resentencing would not be strictly ministerial, a district court abuses its discretion when it denies de novo resentencing.” Id. at 22. In Peña’s case, however, the Court concluded that de novo resentencing would simply be an “empty formality.” Id.