Austin v. United States
- Lewis Kaplan
- 1:20-cv-00398
- U.S. District Court · Southern District of New York
- 2
In Austin v. United States, Judge Kaplan vacated two convictions, denied relief on the others, and ordered briefing on whether resentencing was unnecessary.
Otis Austin’s convictions on Counts 2 and 3 were vacated, but his convictions on the remaining counts and his aggregate 133-month prison sentence were left unchanged by this order.
What happened
In Austin v. United States, Otis Austin had pleaded guilty to a seven-count indictment and received a total prison sentence of 133 months. The sentence was to run at the same time as an undischarged 70-month federal sentence and after an undischarged nine-year state sentence.
Austin later asked the court to vacate his convictions under a federal statute allowing prisoners to challenge their convictions or sentences. Two convictions were based on a conspiracy to commit Hobbs Act robbery. The court said those convictions could no longer stand after a 2019 Supreme Court decision, and the government agreed that they should be vacated.
Judge Lewis A. Kaplan vacated the convictions on Counts 2 and 3 but denied the motion as to the remaining counts. Because the vacated counts did not change the total prison term, the parties were ordered to explain by June 20, 2020, why the court should not enter an amended judgment without resentencing Austin.
The detailed version
- Austin v. United States · No. 1:20-cv-00398
- Lewis Kaplan
- June 12, 2020
Background
Otis Austin pleaded guilty on May 1, 2008, to a seven-count indictment. Count 2 charged him with murder in relation to a conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 924(q). Count 3 charged him with using a firearm in relation to that conspiracy under 18 U.S.C. § 924(c)(1)(A)(iii).
On January 16, 2009, the court sentenced Austin to 133 months of imprisonment. It imposed 96 months on Counts 1, 2, 4, and 7, to run concurrently, and 37 months on Counts 3, 5, and 6, also to run concurrently with one another but consecutively to the sentences on Counts 1, 2, 4, and 7. The 133-month sentence was ordered to run concurrently with an undischarged federal sentence of 70 months and consecutively to an undischarged state sentence of nine years.
Motion under 28 U.S.C. § 2255
On January 13, 2020, Austin moved under 28 U.S.C. § 2255 to vacate his convictions. The court explained that because Counts 2 and 3 were based on a conspiracy to commit Hobbs Act robbery, those convictions could no longer stand after United States v. Davis, 139 S. Ct. 2319 (2019). The government consented to vacating those convictions.
Ruling
Judge Lewis A. Kaplan vacated Austin’s convictions on Counts 2 and 3. The court denied the motion as to all remaining counts, substantially for the reasons stated in the government’s April 7, 2020 letter. The opinion does not describe those reasons in detail.
The court also denied a certificate of appealability and certified that any appeal would not be taken in good faith under 28 U.S.C. § 1915(a)(3).
Effect on the sentence and next step
The court stated that the sentences on Counts 2 and 3 were identical to the sentences on other counts: Count 2 matched Counts 1, 4, and 7, while Count 3 matched Counts 5 and 6. Because the remaining sentences were consecutive in the same way, the ruling did not change the aggregate 133-month prison sentence or its relationship to the undischarged federal and state sentences.
The parties were ordered to show cause by June 20, 2020, why the court should not enter an amended judgment reflecting the ruling and dispense with resentencing. The order did not itself state that resentencing was unnecessary; it requested the parties’ explanations before making that decision.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.