87 F.4th 100
2d Cir.2023Background
- Carlos Gomez led a Bronx drug crew; indicted on RICO and related counts for ordering and facilitating the murder of Jose Gonzalez Santiago.
- Count 10 charged a § 924(c) violation (using a firearm in relation to a crime of violence) predicated on Racketeering Act One: the murder of, and conspiracy to murder, Santiago.
- At trial the jury was instructed on New York second-degree murder elements and on Pinkerton liability (allowing conviction for a substantive offense based on co‑conspirators’ acts). The jury found both the murder and the conspiracy proved and convicted Gomez on RICO, RICO conspiracy, § 924(c), and narcotics conspiracy.
- After Davis (which invalidated § 924(c)’s residual clause), Gomez filed a successive § 2255 arguing his § 924(c) conviction might rest on the now-invalid conspiracy predicate or on a Pinkerton-based finding.
- The district court denied relief, concluding New York intentional murder is a categorical crime of violence and Pinkerton liability does not convert a substantive violent offense into an impermissible conspiracy predicate.
- The Second Circuit affirmed, holding that (1) second‑degree murder under New York law is a § 924(c) elements‑clause crime of violence, and (2) a Pinkerton‑based substantive murder conviction still qualifies as a predicate for § 924(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pinkerton instruction undermines the § 924(c) predicate | Gomez: jury might have based § 924(c) only on conspiracy or on a Pinkerton theory, which would be invalid after Davis | Gov: jury found both murder and conspiracy; murder is a valid predicate and Pinkerton does not change that | Held: Pinkerton does not convert a substantive murder into a conspiracy offense; conviction remains valid |
| Whether New York intentional (second‑degree) murder is a categorical "crime of violence" under § 924(c)(3)(A) | Gomez: challenges hinge on predicate validity after Davis | Gov: NY second‑degree murder has as an element intent to cause death and thus involves use of physical force | Held: NY second‑degree murder is categorically a crime of violence under the elements clause |
| Whether concurrent‑sentence doctrine bars review | Gov: multiple unchallenged life terms make § 924(c) collateral relief moot | Gomez: vacating § 924(c) could trigger resentencing and reduce life exposure | Held: doctrine not applied; relief could affect overall sentencing so merits reached |
| Whether procedural default or harmless‑error precludes relief | Gov: claim defaulted or any error harmless | Gomez: government forfeited procedural‑default defense; harmlessness depends on resolution of the Pinkerton question | Held: government forfeited procedural‑default defense; harmlessness cannot be resolved without deciding merits |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (holding § 924(c)’s residual clause unconstitutionally vague)
- Pinkerton v. United States, 328 U.S. 640 (establishing liability for substantive offenses committed by coconspirators when foreseeable and in furtherance of the conspiracy)
- Stone v. United States, 37 F.4th 825 (recognizing N.Y. second‑degree murder as a categorical crime of violence)
- United States v. Laurent, 33 F.4th 63 (RICO is a crime of violence if at least one predicate racketeering act is a crime of violence)
- United States v. Barrett, 937 F.3d 126 (conspiracy to commit a crime of violence does not itself qualify as a § 924(c) crime of violence post‑Davis)
- United States v. Castleman, 572 U.S. 157 (use of physical force includes knowing or intentional causation of bodily injury)
- United States v. McCoy, 995 F.3d 32 (a defendant convicted under aiding‑and‑abetting or Pinkerton theories is treated as a principal for § 924(c) predicate analysis)