by Sam Rutherford

The U.S. Court of Appeals for the Second Circuit held that a prisoner was entitled to a full de novo resentencing hearing after he filed a successful 28 U.S.C. § 2255 habeas corpus petition vacating some but not all of his convictions. The Court noted that a de novo resentencing hearing was required because the resentencing judge was not the original trial judge and because the prisoner presented plausible arguments of changed circumstances that merited consideration at a formal hearing.

Background

In 2009, Betim Kaziu, an American-born Muslim, traveled with a friend from Brooklyn to Egypt and then Kosovo to formulate a terrorist plot to kill Americans. He was only 19 years old at the time. Kaziu and his friend were recruited to the join the militaristic, jihadist cause through videos posted online depicting the U.S. as oppressing and murdering Muslims abroad. Kaziu’s friend lost interest and returned to the U.S. Kaziu did not.

Kaziu was subsequently apprehended and returned to the U.S. In 2011, he was convicted of four counts following a jury trial in the U.S. District Court for the Eastern District of New York: conspiracy to commit murder in a foreign country (Count I), conspiracy to provide material support to terrorists (Count II), attempt to provide material support to a foreign terrorist organization (Count III), and conspiracy to use a firearm (Count IV). The District Court sentenced him to 27 years’ imprisonment on Count I, the statutory maximum sentences of 15 years on each of Counts II and III, and 27 years on Count IV—all to run concurrently. The convictions and sentences were affirmed on appeal.

In 2019, Kaziu filed a habeas petition in the District Court, arguing that his convictions on Counts I and IV were unlawful under the intervening U.S. Supreme Court decision in United States v. Davis, 588 U.S. 445 (2019). The Government conceded that Kaziu was entitled to relief on Count IV. The District Court scheduled a telephonic de novo resentencing hearing, but the Government objected because felony sentencing proceedings must occur in person. The in-person resentencing hearing was eventually scheduled in May 2021, after numerous extensions related to the COVID-19 pandemic.

In the meantime, and operating on the assumption he would receive an in-person de novo resentencing hearing, Kaziu submitted a sentencing memorandum contending that renewed application of the factors set forth in 18 U.S.C. § 3553(a) warranted a sentence of no longer than 15 years. Kaziu supported this argument with evidence of his rehabilitation and reform during his intervening time in prison. In particular, he submitted extensive evidence showing that he had long since abandon his jihadist views and now embraced a peaceful, righteous understanding of Islam.

Just two months before the resentencing hearing, however, the Government submitted a memorandum arguing that de novo resentencing is not required when only one of several convictions is vacated on collateral review, even though such a hearing is required when a defendant obtains only partial relief on direct appeal. The Government asserted that the District Court should vacate only the conviction and sentence on Count IV and retain the remaining 27-year sentence on Count I, as well as the concurrent 15-year sentences on Counts II and III.

In May 2021, the District Court issued a written decision granting Kaziu habeas relief on Count IV and vacated that conviction but denied relief as to Count I. The court then resentenced Kaziu on the three remaining counts without conducting a de novo, in-person resentencing hearing. Instead, it reweighed the § 3553(a) factors related to the 27-year sentence previously imposed for the Count I conviction, ultimately imposing a 25-year sentence concurrent with the 15-year terms imposed on Counts II and III followed by lifetime supervision. The District Court granted the two-year sentence reduction based on Kaziu’s subsequent reform while in prison. Kaziu timely appealed.

Analysis

Kaziu raised two issues on appeal. First, he argued that de novo resentencing is always required whenever a prisoner successfully attacks one of several convictions on habeas review. Second, even if de novo resentencing is not mandatory in every case, he argued that settled Second Circuit precedent and due process considerations require such resentencing whenever one of several inextricably linked convictions is vacated.

The Court noted that Kaziu’s first argument was foreclosed by its decision in United States v. Jose Peña, 58 F.4th 613 (2d Cir. 2023), cert. denied, 144 S. Ct. 147 (2023), which was decided while Kaziu’s appeal was pending. In that case, the Peña Court held the § 2255 allows District Courts to choose between conducting a de novo resentencing on all remaining convictions or simply correcting the sentence following a partially successful habeas petition. But the Peña Court specifically declined to define the circumstances under which a District Court abuses its discretion when it fails to resentence a defendant de novo following a successful collateral attack on one of several convictions. Nevertheless, Peña forecloses the “argument that de novo sentencing is categorically required whenever a conviction is vacated on collateral attack,” the Court explained.

The Peña Court did suggest, however, that it might be an abuse of discretion not to conduct a de novo resentencing hearing whenever doing so would not be “strictly ministerial,” when for example the defendant had already received statutory minimum sentences on the remaining convictions. See Peña. In the present case, the Court determined that “two factors combine to limit the district court’s discretion to dispense with plenary resentencing.”

First, the district judge who resentenced Kaziu was not the trial judge and did not impose the original sentence. Unlike the original judge “who retains privileged access to the rationale behind the original sentence, a deep familiarity of the facts, and an in-person observation of the defendant’s allocution, a new judge ruling on a 2255(b) petition comes to the case without this type of insider information,” the Court reasoned. As a result, “a new judge cannot be certain that simply lopping off the sentence of a vacated count sufficiently remedies a sentencing package that did, in some undetermined, opaque capacity, factor in a now vacated conviction,” according to the Court.

This precise rationale forms the basis of the decision in United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002), in which the court explained that when one count in a multi-count conviction is vacated, de novo resentencing is generally required because it is impossible to determine how the “constellation of offenses of conviction” and the “factual mosaic related to those offenses” were weighed at sentencing and to what extent each was determinative to the original sentence. Quintieri.

The Court stated that the concern becomes more pressing when the original judge is no longer available because “how that factual mosaic and the constellation was originally packaged together is unknown.” And while it might be possible for the new judge to “hypothesize from the sentencing record or the sentence itself how the [original] judge viewed the relationship between the now-vacated count and the remaining counts,” such a “hypothesis is a weak substitute for direct knowledge” of how the original convictions impacted the overall sentence, according to the Court.

The second reason the Court determined that the District Court abused its discretion by declining to conduct a de novo resentencing hearing was the volume of evidence Kaziu submitted in connection with his rehabilitation during imprisonment. Kaziu had a “nearly flawless” disciplinary record during his 11 years of incarceration, getting in only one fight during his first year of confinement with another prisoner who stole his wrist watch.

Kaziu also had not wasted his time in prison. He invested in his education and future. During his incarceration, he earned his GED; received certifications in psychology, nutrition, and wellness courses; completed a Vocational Trade Culinary Arts Program; and envisioned pursuing an undergraduate degree and social work if released.

Additionally, and more importantly according to the Court, “Kaziu has moved on from his religious extremist ideologies.” In his sentencing memorandum, Kaziu explained that his relationship to the Muslim religion and more specifically with the Qu’ran changed once he learned to read Arabic. He said that through independent study, he was able to develop a personal relationship with his religion and its teachings and was no longer vulnerable to misinformation from others who claimed to be experts.

Kaziu acknowledged that his criminal conducted resulted from “an extreme interpretation of the narrative of Islam,” and Kaziu’s claims about his religious reformation were not merely naked assertions. His attorney submitted an evaluation from an expert on American jihadi conversion, Dr. Yasir Qadhi, who opined that Kaziu was easily manipulated as a young man and no longer represents a continuing threat to society.

The Court stated that these facts showed that Kaziu had “plausibly claimed that he is nonviolent, has reordered his relationship with Islam, and has positioned himself to be a productive member of society,” which is a “foundational departure from the type of person Kaziu was when he was originally arrested, convicted, and sentenced.” In light of these changed circumstances, the District Court should have considered his argument for a shorter sentence “at a full de novo resentencing,” the Court concluded.

The Court stated that the District Court’s decision to conduct resentencing “on the papers” was not an adequate substitute for a full, in-person, de novo resentencing hearing. Although recognizing that the District Court did more than just vacate the conviction on Count IV when it reweighed the § 3553(a) factors and shaved off two years from Kaziu’s sentence, the Court nonetheless determined that the paper resentencing approach was “insufficient.”

Defendants have a constitutional right to be present at resentencing hearings “because technically a new sentence is being imposed in place of the vacated sentence.” United States v. DeMott, 513 F.3d 55 (2d Cir. 2008). The Court explained that while the District Court’s paper resentencing process entailed the “necessary legwork of revisiting the 3553(a) factors,” it did not provide Kaziu with an opportunity to “give his new allocution.” The Court instructed that in cases like Kaziu’s, when “resentencing is required, it necessitates the full panoply of procedural protections defendants are entitled to in a standard sentencing.” Thus, the Court held that the District Court erred in failing to hold a full de novo resentencing.

Conclusion

Accordingly, the Court reversed Kaziu’s sentence and remanded for a full de novo resentencing hearing consistent with its opinion. See: Kaziu v. United States, 108 F.4th 86 (2d Cir. 2024). 

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