Kaziu v. United States

108 F.4th 86

Betim KAZIU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 21-1247-pr

August Term, 2022

United States Court of Appeals, Second Circuit

Argued: February 23, 2023

Decided: July 16, 2024

Appeal from the United States District Court for the Eastern District of New York. 1:09-cr-00660-FB - Block, District Judge.

Yoav M. Griver, Zeichner Ellman & Krause LLP, New York, New York, for Petitioner-Appellant Betim Kaziu

Breon Peace, United States Attorney, Saritha Komatireddy and Robert M. Pollack, Assistant United States Attorneys, Eastern District of New York, Brooklyn, New York, for Respondent-Appellee United States of America.

Before: Calabresi, Lynch, Robinson, Circuit Judges.

Judge Calabresi concurs in a separate opinion.

Judge Lynch concurs in the judgment in a separate opinion.

Calabresi, Circuit Judge:

BACKGROUND

28 U.S.C. § 2255 allows prisoners in federal custody to attack the legality of their convictions or sentences collaterally. When a federal prisoner successfully challenges one or more of his convictions or sentences as invalid, § 2255(b) gives the district court, in certain situations, the discretion to choose among four remedies: the court may discharge the petitioner, resentence them, grant them a new trial, or correct their sentence. Id. In this case, we address two of these remedies—resentencing and correcting the sentence—and the bounds of the district court's discretion in choosing between them.

FACTUAL BACKGROUND

This case arises from Betim Kaziu's convictions for his plan and attempt to join and aid foreign terrorist organizations. Kaziu was born in Brooklyn in 1988. He lived there until February 2009, when he and his friend and co-conspirator, Sulejmah Hadzovic, flew to Cairo, Egypt, to join a terrorist organization and fight jihad.

Trial and Sentencing

Kaziu began his radicalization in 2007, around the age of 19. Videos posted online by terrorist groups depicting the United States as oppressing and murdering Muslims abroad prompted Kaziu and Hadzovic to embrace militant jihadism. In late 2008, the pair started planning to travel abroad in order to join a terrorist organization. Early the next year, they flew to Cairo, Egypt, intending to study Arabic and fight jihad.¹ While in Cairo, they met with individuals who could help them gain access to terrorist training facilities and weapons for the purpose of killing U.S. troops. In the summer of 2009, Hadzovic had a change of heart and eventually returned to the United States.

In July 2009, Kaziu traveled alone from Egypt to Kosovo to formulate a terrorist plot to kill Americans there. But his plans were intercepted. On August 25, American law enforcement alerted Kosovar authorities of the possibility that Kaziu was engaged in a terrorist plot. A search of Kaziu's Kosovo apartment recovered Kaziu's laptop and video camera, his identification and travel documents, and a firearms catalog. In one of the recordings found on the video camera, Kaziu professed his imminent plan to die for Allah. Kaziu was arrested in Kosovo on August 27, 2009, and he was interviewed by FBI agents on August 28 and September 14 while incarcerated there. Kaziu was subsequently indicted in the Eastern District of New York on September 18, 2009. He was expelled from Kosovo and transferred to U.S. custody at Stewart Airport in Newburgh, New York on September 23, 2009.

The case proceeded to trial in 2011. The government sought conviction on four counts: conspiracy to commit murder in a foreign country in violation of 18 U.S.C. § § 956(a)(1), 956(a)(2), and 3551 et seq. (Count One); conspiracy to provide material support to terrorists in violation of 18 U.S.C. §§ 2339A(a) and 3551 et seq. (Count Two); attempt to provide material support to a foreign terrorist organization in violation of 18 U.S.C. §§ 2339B(a)(1), 2, and 3551 et seq. (Count Three); and conspiracy to use a firearm in violation of 18 U.S.C. §§ 924(o), 924(c)(1)(B)(ii), and 3551 et seq. (Count Four).

The jury found Kaziu guilty on all four counts. On each of Counts One and Four, Kaziu faced a statutory sentence range of any term of years or life imprisonment, and, on each of Counts Two and Three, a statutory sentence range of up to 15 years' imprisonment. Based on Kaziu's total offense level of 45 and his criminal history category of VI, the revised Presentence Report recommended a sentence of life imprisonment.

At his sentencing hearing, Kaziu addressed the court, maintaining his innocence (on the ground that he had not harmed anyone) and expressing some regret. But in light of Kaziu's continued defiance and limited acceptance of responsibility, the court (Gleeson, J.) explained that it did not "completely accept as genuine what [Kaziu] said" about feeling remorse, fearing it was merely "opportunistic." The court considered the other sentencing factors required by 18 U.S.C. § 3553(a) and sentenced Kaziu to 27 years' imprisonment on Count One, the statutory maximum sentences of 15 years on each of Counts Two and Three, and 27 years on Count Four, all to run concurrently. The total custodial sentence of 27 years was to be followed by lifetime supervision. This Court affirmed the convictions and sentences on direct appeal. See United States v. Kaziu, 559 F. App'x 32 (2d Cir. 2014).

Kaziu's 28 U.S.C. § 2255 Petition

In 2019, Kaziu petitioned the district court for post-conviction relief under 28 U.S.C. § 2255. He argued that his convictions for the murder conspiracy (Count One) and for the firearm conspiracy (Count Four) were unlawful given intervening Supreme Court precedents. The government disputed Kaziu's contention that his murder conspiracy conviction was invalid, but it agreed that Kaziu's firearm conspiracy conviction could no longer stand because United States v. Davis, 588 U.S. 445, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019), invalidated as unconstitutionally vague a statutory provision on which the firearm conspiracy count was based.

At the time, the government took its long-held position that because one of the convictions—rather than one of the sentences—was invalid, Second Circuit law required de novo resentencing on each of the three remaining counts. J. App'x. at 103 (citing United States v. Powers, 842 F.3d 177, 179 (2d Cir. 2016) (per curiam), for the position that "the remedy for conviction error is remanding for de novo resentencing"). De novo resentencing requires the district court to "reconsider the sentences imposed on each count, as well as the aggregate sentence," formulating anew the appropriate sentence for each unreversed conviction under the individualized assessment required by § 3553(a). United States v. Rigas, 583 F.3d 108, 118 (2d Cir. 2009).

The district court (now Block, J.) did not immediately rule on Kaziu's petition. Instead, in October 2019, it entered an order scheduling a resentencing proceeding "[b]ased upon the Government's reply." J. App'x at 25. The sentencing hearing, initially set for February 2020, was repeatedly delayed by the parties' requests for extensions to submit documents and the COVID-19 pandemic.

The district court eventually scheduled the de novo resentencing hearing to occur telephonically in February 2021. But the government objected. A month before the telephonic hearing, it requested adjournment until health conditions improved, reasoning that, generally, "felony sentencing proceedings must take place in person" and that limited pandemic-era statutory exceptions to this rule did not apply. J. App'x at 261-63 (citing Fed. R. Crim. P. 43(a)(3)). The court acquiesced and pushed the de novo resentencing hearing to an in person proceeding in May 2021.

Kaziu, operating on the view that he would be resentenced de novo, had already submitted a sentencing memorandum contending that renewed application of the § 3553(a) factors merited a sentence of no longer than 15 years given his reform during his intervening time in prison.

The government, however, changed its position as to the appropriate remedy for the unlawful conviction. In March 2021, two years after it had asserted that de novo resentencing was required and two months after it had argued that a de novo resentencing hearing conducted telephonically was improper, the government filed a memorandum arguing that de novo resentencing was not needed after all and, in fact, was not warranted here. The government's new memo cited three district court decisions which had held that our rule requiring de novo resentencing did not apply where a conviction was invalidated on collateral attack rather than direct appeal. See J. App'x at 276-77. Those courts read § 2255(b)'s option to "correct the sentence" to mean that they could vacate the sentence corresponding to the unlawful conviction without re-examining the unreversed convictions or their corresponding sentences at all. See United States v. Hector Raymond Peña, 09-CR-341 (VM), 2020 WL 7408992, at *6 (S.D.N.Y. Dec. 17, 2020), appeal dismissed, No. 21-1199 Dkt. 58 (2d Cir. Nov. 17, 2021); United States v. Medunjanin, Nos. 19-cv-2371 (BMC), 20-cv-2755 (BMC), 2020 WL 5912323, at *8 (E.D.N.Y. Oct. 6, 2020); Ayyad v. United States, 16-cv-4346 (LAK), 2020 WL 5018163, at *2 (S.D.N.Y. Aug. 24, 2020), aff'd, 2023 WL 1975682 (2d Cir. Feb. 14, 2023). That is the course the government's new memorandum urged the court to take—without a hearing, to vacate the 27-year sentence on Count Four, but retain the sentences on the remaining counts. J. App'x at 278-79; 289-90.² The government argued that because Count One also carried a sentence of 27 years that ran concurrently with the other sentences, Kaziu's aggregate sentence would remain the same—27 years—despite the vacatur of his conviction on Count Four and its corresponding sentence.

Kaziu vehemently objected and requested that the court hold the de novo resentencing as originally planned. See J. App'x at 345, 353. He disputed the government's argument that the posture of the conviction challenge—on...