On April 26, 2019, the Second Circuit issued another decision in Shabazz v. United States (Katzmann, Leval, Berman by designation) and denied Al-Malik Shabazz’s request for rehearing in connection with the Court’s January 4, 2019 decision, which reversed the district court’s decision granting Shabazz’s habeas petition to set aside his sentence imposed under the Armed Career Criminal Act (“ACCA”).  Our prior coverage of that decision can be found here.

In his petition for rehearing, Shabazz argued that the Court erred by reinstating his original ACCA-based sentence because that outcome was purportedly incompatible with two other precedents—Villanueva v. United States, 893 F.3d 123 (2d Cir. 2018), and Pepper v. United States, 562 U.S. 476 (2011)—and because reimposing a sentence that was potentially imposed in the first instance in reliance on the ACCA’s now-unconstitutional Residual Clause constituted “structural error.”  Both arguments were rejected.

With respect to his first argument, Shabazz objected to the Court’s prior decision to remand his case to the sentencing court with a directive that Shabazz’s original sentence be reimposed, rather than remanding for resentencing.  Shabazz argued that Villanueva required the Court to allow the lower court to conduct a full resentencing when its original sentence relied on the ACCA’s Residual Clause.  The Court disagreed, holding that Villanueva did not prevent an appellate court from directing that the original sentence be reimposed as the remand for resentencing in Villanueva had been discretionary. 

The Court also disagreed with Shabazz’s contention that the Court’s prior decision was in conflict with Pepper.  Rather, the Court noted that Pepper merely required a district court, at resentencing, to consider the facts as they are at the time the new sentence is imposed when an appellate court has remanded for plenary resentencing.  The Court rejected Shabazz’s suggestion that Pepper precluded remands that reopened only limited aspects of a previously imposed sentence.

As to Shabbazz’s second argument, the Court rejected Shabazz’s contention that the district court committed “structural error” by imposing a sentence that may have relied on the ACCA’s Residual Clause before it was held to be unconstitutional.  The Court noted that even if the sentencing court had relied on the Residual Clause, Shabazz’s ACCA enhancement applied under the Force Clause “in exactly the same, quantifiable manner that it would have under the Residual Clause.”  As a result, the Court concluded that the sentencing court’s reliance on the Residual Clause instead of the Force Clause (assuming this is what occurred despite some ambiguity in the record) resulted in no prejudice, let alone the sort of fundamental unfairness required to establish structural error.

Analysis

Shabazz’s petition for rehearing suggests that his aim was to secure the right to a full resentencing, perhaps to present favorable new evidence that may have arisen after his original sentence was imposed.  The Court’s rejection of his petition suggests that it preferred to retain greater flexibility with respect to sentencing remands, as it declined Shabazz’s invitation to require plenary resentencing any time there is a chance that a defendant’s sentence relied on the ACCA’s Residual Clause.

The Court’s decision fosters greater efficiency in the administration of justice, given that Shabazz’s original sentence was upheld because he qualified for a sentencing enhancement under the ACCA’s Force Clause.  However, the Shabazz decision also illustrates how efficiency can sometimes lead to greater inconsistency in the administration of justice.  Because Shabazz qualified for an ACCA enhancement under the Force Clause, he was unable to secure a resentencing hearing where he could have potentially presented new evidence that may have resulted in a reduced sentence.  Had Shabazz’s prior convictions not fallen within the scope of the ACCA’s Force Clause, however, he may have been entitled to a plenary resentencing where he could have presented that evidence. 

Stepping back for a moment from the details of Shabazz, Congress would be wise to revisit the ACCA.  Any statute that leads to so many complicated appellate decisions and repeat trips to the Supreme Court is not working.