Stone v. United States, 37 F.4th 825

In 2007 Stone was indicted for racketeering-related offenses including conspiracy to commit second-degree murder (Count 11), second-degree murder (Count 12), and a § 924(c) firearms charge (Count 13) predicated on Counts 11 and 12.
At trial Stone shot and killed Jamel Washington; the jury convicted Stone on Counts 1, 11, 12, and 13 and found the racketeering acts proved.
The district court instructed the jury that both Counts 11 and 12 qualified as "crimes of violence" for the § 924(c) charge but did not require the jury to be unanimous about which predicate it relied on for Count 13; the jury returned a general guilty verdict on Count 13.
Stone was initially sentenced to concurrent life terms on Counts 11 and 12 and a consecutive 300 months on Count 13; after a Miller challenge he was resentenced in 2014 to concurrent 120 months on Counts 1, 11, 12 and 300 months consecutive on Count 13.
Following Davis (which invalidated § 924(c)’s residual clause), Stone filed a § 2255 petition arguing his § 924(c) conviction was unlawful because (a) conspiracy to murder is not a crime of violence and the jury may have relied on it, and (b) second-degree murder likewise does not categorically qualify; the district court denied relief and granted a certificate of appealability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Stone's § 924(c) conviction must be vacated because the jury may have relied on conspiracy to murder, which is not a "crime of violence" after Davis	Stone: conviction invalid because one predicate (conspiracy to murder) is not a crime of violence and jury returned a general verdict	Gov't: harmless-error review of the record shows jury necessarily found facts establishing the valid predicate (substantive murder)	Held: No prejudice; error harmless. Proper review examines the record (not the categorical approach) and shows jury convicted on valid predicate beyond a reasonable doubt
Whether second-degree murder in aid of racketeering (N.Y. Penal Law § 125.25(1)) categorically qualifies as a "crime of violence" under § 924(c)(3)(A)	Stone: murder can be committed by omission, so it might not require the use of physical force and therefore may not categorically be a crime of violence	Gov't: Second-degree murder necessarily involves the use of physical force; Scott controls	Held: Second-degree murder is categorically a crime of violence under § 924(c) (Scott binding)

Miller v. Alabama, 567 U.S. 460 (2012) (mandatory life without parole for juveniles invalid)
Davis v. United States, 139 S. Ct. 2319 (2019) (struck § 924(c)(3)(B) residual clause as unconstitutionally vague)
Hedgpeth v. Pulido, 555 U.S. 57 (2008) (general verdict may be invalid when jury instructed on alternative insufficient theories)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard for collateral review requires showing no substantial and injurious effect)
Yates v. United States, 354 U.S. 298 (1957) (constitutional error when jury returns general verdict on legally insufficient theories)
Taylor v. United States, 495 U.S. 575 (1990) (articulated the categorical approach for predicate-offense analysis)
United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc) (New York manslaughter/murder categorically violent under ACCA and analogous § 924(c) analysis)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach and focusing on statutory elements)
Mathis v. United States, 579 U.S. 500 (2016) (distinguishing elements from means in categorical analysis)