United States District Court, E.D. New York
NICHOLAS G. GARAUFIS, United States District Judge.
before the court is Petitioner George Baquero's unopposed
Motion to Vacate pursuant to 28 U.S.C. §
2255. (Mot. to Vacate ("Mot.") (Dkt.
121); Suppl. Mot. to Vacate ("Suppl. Mot.") (Dkt.
126); see also Gov't Resp. to Mot. to Vacate
("Resp.") (Dkt. 127).) For the reasons stated
below, the motion is GRANTED.
PROCEDURAL HISTORY 
October 21, 2009, a grand jury returned an indictment against
Jamie Alberto Mejia Gonzalez and Carlos Hernando Ramirez.
(Indictment (Dkt. 1).) On September 13, 2010, a grand jury
returned a superseding indictment that charged Mr. Baquero
with (1) Conspiracy to Distribute Cocaine, in violation of 21
U.S.C. § 846 ("Count One"); (2) Conspiracy to
Extort under the Hobbs Act, in violation of 18 U.S.C. §
1951(a) ("Count Two"); and (3) Brandishing a
Firearm During a Crime of Violence, in violation of 18 U.S.C.
§ 924 (c)(1)(A)(ii) ("Count Three").
(Superseding Indictment (Dkt. 42).) Count Three was
predicated solely upon the offense charged in Count Two.
(Id. at 3.)
Baquero pled guilty to all three counts of the superseding
indictment. (See Sept. 4, 2012 Min. Entry (Dkt.
78).) The court did not impose a term of imprisonment for
Count One or Two, but sentenced Mr. Baquero to 84 months of
imprisonment on Count 3 and concurrent terms of supervised
release of five, three, and five years on Counts One, Two,
and Three, respectively. (Judgment (Dkt. 103).)
The Instant Motion
Baquero filed the instant motion on June 13, 2016. (Mot.) The
court postponed the Government's deadline to respond
under Administrative Order 2016-05 of the Eastern District of
New York, which governs habeas petitions seeking relief under
Johnson v. United States, 135 S.Ct. 2551 (2015).
(See June 20, 2016 Order.) Mr. Baquero filed a
supplemental motion to vacate through counsel on November 14,
2019. (Suppl. Mot.) The Government responded on November 19,
2019 (Resp.), and Mr. Baquero replied on the same day (Reply
Mr. Baquero's original motion was pending, he completed
his term of imprisonment and was released from custody on
February 21, 2017. (See Suppl. Mot. at 1; Resp. at
2.) He is currently serving his term of supervised release.
(See Suppl. Mot. at 1.) In the supplemental motion,
counsel for Mr. Baquero notes his Probation Officer's
report that Mr. Baquero "is on low intensity
supervision, complying with all his conditions, causing no
problems, and doing fine." (Id.)
28 U.S.C. § 2255(a), a court may "vacate, set aside
or correct" a federal conviction or sentence
"imposed in violation of the Constitution or laws of the
United States." A petitioner may only obtain relief
under § 2255 "to correct a defect in sentencing
which raises constitutional issues, 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." Soto v. United
States, 185 F.3d 48, 56 (2d Cir. 1999): see also
United States v. Timmreck, 441 U.S. 780, 783 (1979). If
a court finds that a "sentence imposed was not
authorized by law... the 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 appropriate." 28 U.S.C. § 2255(b); see
also 28 U.S.C. § 2243 (authorizing a court to
dispose of a habeas petition "as law and justice
United States v. Davis, 139 S.Ct. 2319 (2019), the
Supreme Court held that the residual clause in 18 U.S.C.
§ 924(c)(3)(B) was unconstitutionally vague in light of
Johnson v. United States, 135 S.Ct. 2551 (2015) and
Sessions v. Dimava, 138 S.Ct 1204 (2018). See
Davis, 139 S.Ct. at 2325-27. In United States v.
Barrett, 937 F.3d 126 (2019), the Second Circuit held
that Davis precludes a Hobbs Act conspiracy from
serving as the "crime of violence" predicate for a
conviction under § 924(c). Because Mr. Baquero's
conviction under § 924(c) was predicated solely on his
conviction for Hobbs Act conspiracy, the court agrees with
the parties that Mr. Baquero's conviction on Count Three
of the superseding indictment must be vacated.
§ 2255(b) provides courts with broad discretion to
fashion appropriate relief upon the vacatur of a conviction.
See id (a court "shall discharge the prisoner or
resentence him or grant a new trial or correct the sentence
as may appear appropriate"); see also Dhinsa v.
Krueger,917 F.3d 70, 78 (2d Cir. 2019); Id. at
78 n.7. Here, Mr. Baquero argues that the court need not
resentence him on Counts One and Two, and the Government
takes no position ...