UNITED STATES OF AMERICA v. JOSE ANTONIO MARTINEZ, AKA YOYO
No. 15-1384-cr
United States Court of Appeals for the Second Circuit
March 16, 2021
CABRANES and LYNCH, Circuit Judges.
August Tеrm, 2016. Submitted: January 27, 2017. Last Submission: September 19, 2019.
Before: CABRANES and LYNCH, Circuit Judges.*
Jose Antonio Martinez appeals from a judgment of the United States District Court for the Eastern District of New York (Garaufis, J.) sentencing him to 20 years in prison on his plea of guilty to participating in the affairs of a criminal enterprise, specifically, the “MS-13” street gang, through a pattern of racketeering consisting of, among other crimes, murder and a separate count of discharging a firearm during a crime of violence. Martinez appealed, initially arguing only that his sentence was substantively unreasonable. While his appeal was pending, the United States Supreme Court decided Johnson v. United States, 576 U.S. 591 (2015), holding that the “residual” clause of the Armed Career Criminal Act of 1984 (“ACCA“),
Susan Corkery and Audrey Spektor, Assistant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Bruce R. Bryan, Syracuse, New York, for Defendant-Appellant.
On April 22, 2011, Jose Antonio Martinez, an associate of the violent La Mara Salvatrucha (“MS-13“) gang, pled guilty in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, J.) to all counts of a three-count superseding information charging him with substantive and conspiracy violations of the Racketeer-Influenced and Corrupt Organizations Act (“RICO“),
The government later concluded that, although Martinez had provided them with useful information, he had not been fully forthcoming in his cooperation, and declined to file a motion in support of a
Just a few months after Martinez‘s sentence, however, the Supreme Court decided Johnson v. United States, 576 U.S. 591 (2015), holding that the “residual” clause of the Armed Career Criminal Act of 1984 (“ACCA“),
The case requires us to revisit our precedent in United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009), which held that a RICO offense based on two violent racketeering predicates is a violent crime for the purposes of
BACKGROUND
The criminal conduct for which Martinez was sentenced has never been in dispute. Martinez was associated with the MS-13 gang, which he knew to be an organization that commits criminal acts, including murders. After learning that his girlfriend had left him for a member of a rival gang, Los Vatos Locos, Martinez approached the leader of the Flushing, Queens, branch of MS-13 and sought his assistance in finding and killing the man his ex-girlfriend was now seeing. With the gang leader‘s blessing, Martinez and other MS-13 members travеled several times from Queens to Yonkers, searching for the man, or for other members of Los Vatos Locos, in order to kill them; on at least one of these occasions, Martinez himself carried a gun with the intention of killing the man himself.
On September 29, 2007, the last of these expeditions, Martinez drove while another gang member, Hector Aleman Lemos, carried the gun. Martinez was unable to find his rival, but he did spot a group of men standing on the street whom he believed to be members of the Vatos Locos. Martinez, Lemos, and the other MS-13 member in the vehicle decided to shoot at the group. Lemos got out of the van and walked towards the men with a .38 caliber revolver; Martinez then heard several shots. Lemos ran back to the van and said he had hit someone. He got back in the van, and Martinez drove away. It was later learned that Lemos‘s shots had killed John Halley. There is no evidence that Halley was affiliated with Los Vatos Locos or with the man against whom Martinez held his grudge.
In July 2010, Martinez was indicted and charged with conspiracy to commit murder for the purpose of maintaining and advancing his position in a racketeering enterprise in violation of
The information charged that the firearm had been brandished and discharged during the substantive and conspiracy RICO violations. During his plea allocution, Martinez described the events of the night of September 29, 2007 as the conduct that made him guilty of the firearms offense. On April 10, 2015, he was sentenced in the United States District Court for the Eastern District of New York to concurrent ten-year terms of imprisonment on the racketeering counts, and a mandatory consecutive ten-year term on the firearms charge.
Martinez filed a timely notice of appeal on April 28, 2015. His initial argument on appeal was that his sentence of 240 months’ imprisonment was substantively unreasonable, relying primarily on his attempted cooperation, personal circumstances, and the fact that he did not personally shoot Halley. At no time during the district court proceedings did Martinez, who was at all times represented by counsel, object to the legal sufficiency of the count in the superseding information charging a violation of
DISCUSSION
Because Martinez raises the
We conclude that Martinez has not shown that the district court‘s acceptance of his guilty plea was plain error. To explain why, we must venture into the anything-but-plain evolution of the law underlying
I. The Validity of Martinez‘s Conviction for Violating Section 924(c)
A. Section 924(c)
Insofar as is relevant to this case,
It might surprise a reader unfamiliar with the history of the Supreme Court‘s interpretation of this statute to learn that there is any question as to whether participating in the affairs of a street gang dedicated to committing violent crimes through a pattern of criminal acts that included the murder of a person who was standing innocently on the street constitutes a “crime of violence” under either of these definitions, or for that matter under any common-sense understanding of the term “crime of violence.” But two strands of the Supreme Court‘s case law regarding the statute combine to give Martinez a plausible argument that it does not.
The Court‘s opinion in Johnson, which prompted Martinez to raise the question in the first place, held that the so-called “residual” clause of the ACCA, which similarly enhances punishment for possession of a firearm by a convicted felon who had multiple prior convictions for “violent felon[ies],” defined as felonies that “involve[] conduct that presents a serious potential risk of physical injury to another” was unconstitutionally vaguе because the clause both fails to give fair notice to ordinary people of the conduct it covers and “invites arbitrary enforcement by judges.” 576 U.S. at 596-97 (internal quotation marks omitted). The Supreme Court thus concluded that neither ordinary Americans nor legally-trained judges are capable of deciding whether a particular category of crime ordinarily involves a substantial risk of generating physical force.
After a period of confusion in the courts of appeals, including this one, see United States v. Barrett, 903 F.3d 166 (2d Cir. 2018) (“Barrett I“), vacated, 139 S. Ct. 2774 (2019), about whether this holding applied not only (as in Johnson and the ACCA) to statutes that required courts to characterize crimes of which a defendant had been previously convicted, but also to cases (like this one involving
But Martinez argues that this Court‘s substantive RICO jurisprudence, when considered alongside the Supreme Court‘s reasoning in Johnson and Davis,
also calls into question whether his convicted offense triggers
B. The Categorical Approach and the Modified Categorical Approach
The categorical approach has had its critics. See United States v. Scott, No. 18-163-CR, 2021 WL 786632, at *22 (2d Cir. Mar. 2, 2021) (en banc) (Park, J., concurring) (collecting cases). In enacting statutes like
Tying significant, mandatory penalties to particular types of crimes is problematic in our federal system, because the definitions of most crimes vary, to a greater or lesser degree, from state to state, and between the states and the United States itself. If Congress chooses to attach such consequences only to particular federal offenses, it can do so simply by listing the covered offenses by their designation in the United States Code.2 But to incorporate crimes without the use of such a list, including state crimes, Congress must resort either to listing “generic” labels of crimes (such as “murder” or “burglary“) that might be defined differently in different jurisdictions, or provide a general description of the types of elements that would entail the consequences Congress wishes to include (as in the “force” and “risk of force” clauses in
As a result, a crime is covered by the force clause of
But now imagine that New York had defined the crime differently. Suppose the statute defined child endangerment as “(1) committing aggravated battery against a child less than seventeen years old or (2) otherwise knowingly acting in a manner likely to be injurious to such a child.” And suppose that an indictment specifically charged a defendant with violating subsection (1) of that statute. Would we still say that the crime of conviction did not have as an element the use of force against a person?
The Supreme Court has sensibly held that we would not. In such a case, the statute is divisible – that is to say it “sets out one or more of [its] elements in the alternative.” Descamps v. United States, 570 U.S. 254, 254 (2013). When facing such a statute, courts should apply what is called the modified categorical approach. See, e.g.,
C. RICO and Section 924(c)
Martinez pled guilty to a charge that he violated
The Ivezaj panel formulated its holding as follows: “where the government proves (1) the commission of at least two acts of racketeering and (2) at least two of those acts qualify as ‘crimes of violence’ under
But Martinez‘s application of Ivezaj to the facts of this case is questionable. To the extent that Ivezaj purports to lay down a rule that a substantive RICO crime will be a crime of violence only where at least two predicate acts qualify as crimes of violence, such a pronouncement would be dictum, because Ivezaj did not present the Court with a case in which it had to decide whether a RICO pattern in which the jury found (or a defendant admitted) only one predicate that was a violent crime would be properly considered a crime of violence for
purposes of
(Sept. 19, 2019) at 7-8. The basic reasoning of Ivezaj is that the unusual complex crime defined by RICO covers (like “endangering the welfare of a child“) a multitude of sins, such that there is a difference between a RICO charge that rests on multiple acts of mail fraud and one that rests on multiple acts of murder, but that unlike “endangering the welfare of a child,” a substantive RICO violation requires as an element of the offense that the jury find, or that a pleading defendant admit, the elements of particular, separately defined crimes that are incorporated by reference into the definition of the RICO violation created by
Ivezaj thus suggests that the proper way to address substantive violations of RICO is to “look to the predicate offenses to determine whether a crime of violence is charged.” Ivezaj, 568 F.3d at 96. But if that is so, a RICO pattern that consists of a murder and a narcotics conspiracy requires a finding of the use of force against another every bit as much as does a RICO pattern consisting of two murders. Accordingly, we disagree with Martinez‘s contention that Ivezaj compels the conclusion that a RICO offense may be a crime of violence only if any two of the charged predicate offenses are violent crimes. Whether a substantive RICO offense in which one of the predicate acts constituting the pattern of racketeering activity found by the jury or admitted by a defendant necessarily involved the
use of physical force as an element renders the entire offense a “crime of violence” triggeringHowever we would read Ivezaj in isolation if it were the only relevant precedent, moreover, its continued authority is debatable. The Supreme Court precedents discussed above have certainly called into question, if not the premises directly underlying Ivezaj, many of the principles and precedents that formed the legal background against which the case was decided.
In arguing that substantive RICO violations can never be crimes of violence for purposes of
On the other hand, if RICO is not as neatly divisible as the hypothetical child endangerment statute described above, which subdivides cleanly into specific subsections defining different conduct, neither does RICO neatly fit the pattern of the actual New York child endangerment statute, which uses very broad language to define an offense in terms of a conceptual catеgory that could apply both to forcible and non-forcible conduct. In contrast to such a statute, RICO requires that the specific crimes that constitute the “pattern” be identified in the charging instrument, and that the specific elements of those crimes be alleged and proved beyond a reasonable doubt. In Martinez‘s case, the pattern charged included the offense of murder as defined in
That predicate act of racketeering, moreover, was essential not only to finding that Martinez was guilty of the offense charged, but also to determining the penalty to which Martinez was exposed. As Martinez wаs specifically advised during his guilty plea allocution and in the plea agreement that he signed, the maximum sentence for the substantive RICO count to which he pled guilty was life imprisonment. But RICO sets forth distinct penalties for different categories of substantive violations, and thus creates distinct offenses that must be proved beyond a reasonable doubt, depending on the nature of the racketeering activity charged. The maximum punishment for a violation of
D. Plain Error
Because Martinez raised no objection in the district court to the validity of the
RICO is a highly unusual statute that encompasses within its terms not only a wide variety of conduct but a wide variety of specifically defined criminal acts whose separate elements are defined by state and federal statutes incorporated by reference into RICO‘s defined elements. The Supreme Court has never addressed how the categorical or modified categorical
First, no directly applicable Supreme Court precedent addresses whether the categorical approach is to be applied to substantive RICO violations (or, for that matter, to any RICO violations). Certainly, the Court has not specifically addressed whether (or under what circumstances or by what theory) substantive RICO can be classified as a “crime of violence” as defined in the “force clause” of
Nor is there clear-cut Circuit authority on the precise question before us. As we have seen, Ivezaj applied what it characterized as the categorical approach to decide that RICO offenses are to be judged violent or not depending on the underlying pattern of racketeering alleged in the particular case, and determined that, at least where two violent predicate acts are found as part of the pattern, a substantive RICO offense is a violent crime. Ivezaj, 568 F.3d at 96. It was not faced with, and therefore had no need to decide, whether a RICO violation predicated on a pattern that included one violent crime should similarly be considered a violent crime. There is thus no binding authority on the point.
Second, whatever else may be said about the continuing meaning or authority of Ivezaj, its one clear message is that whether a substantive RICO offense is or is not a crime of violenсe is determined by the nature of the predicate offenses constituting the charged pattern of racketeering. Id. at 95-96. Whether that is a correct application of the categorical approach is certainly “subject to reasonable dispute,” Nouri, 711 F.3d at 138 (internal quotation marks omitted), under recent Supreme Court precedent refining that approach.
But there is even less authority addressing whether the Ivezaj holding can be upheld as a correct application of the modified categorical offense, that is, whether substantive RICO is a divisible statute.7 As discussed above, RICO is not precisely analogous to statutes that have been found to be clearly divisible – but neither is it precisely analogous to statutes that have been found to be clearly unitary. RICO violations require the indictment to charge, the government to prove, and the jury to find beyond a reasonable doubt, the precise elements of particular federal or state offenses. A jury deciding a RICO case is not asked to apply a broad unitary statutory formulation (like “endangering the welfare
In the case of RICO, as is the case with statutes that have been held to be divisible, a jury is faced not with deciding whether thе defendant engaged in a pattern of racketeering by applying a general conceptual definition, but is confined to deciding whether the defendant committed the particular subset of predicate crimes charged in the indictment. Every RICO case is thus arguably a crime of violence or not depending on which particular portions of the segregable language of RICO‘s defining list of crimes that constitute “racketeering activity” are charged in the case.
In effect, Ivezaj, while purporting to apply the categorical approach, actually applied a version of the modified categorical approach, dividing the statute into separate parts: a murder-and-robbery RICO case is different from a mail fraud RICO case. See Ivezaj, 568 F.3d at 96 (“[W]e look to the prediсate offenses to determine whether a crime of violence is charged.“). The latter would not be a violent crime, even if the particular conduct proved in a specific case included some violent acts, because the elements that the jury would be required to find do not include the use of force. But in a substantive RICO case in which the jury was required to find, or the defendant to admit, a predicate act that by its nature and elements requires the use of force, the RICO offense would be, under the logic of Ivezaj, a violent crime. Id.
Which of these analyses is correct is a complex and vexing question, like many that the Supreme Court has created with its complex and vexing jurisprudence with respect to sentencing statutes like
II. The Substantive Reasonableness of the Sentence
Martinez also challenges the substantive reasonableness of his 20-year sentence. That issue is far less complicated, and may be dealt with briefly. We address a challenge to the substantive reasonableness of a sentence based on “the totality of the circumstances, giving due deference to the sentencing judge‘s exercise of discretion, and bearing in mind the institutional advantages of district courts.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). The standard thus “amounts to review for abuse of discretion.” Id. at 187. We will reverse only when “the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
Here, Martinez pled guilty to having participated in a murder – one that, although he was not the triggerman, was the direct result of his own instigation of an intended murder of a romantic rival – as part of a pattern of criminal acts committed in the course of his involvement in a violent criminal street gang. Because the pattern included a murder, punishable under New York state law by a maximum of
Martinez argues that the sentence was unreasonable because the district court did not adequately account for his effort to cooperate with the authorities or his personal characteristics. But the district court specifically considered those factors, and credited them, while duly noting that Martinez had not been fully forthcoming in his cooperation. The sentence that was imposed was hardly excessive for such a crime, and indeed was in line with defense counsel‘s request.8 Arguments for and against higher or lower sentences can easily be constructed, but we cannot say that the sentence imposed was outside of “the range of permissible decisions” available to the district court. Cavera, 550 F.3d at 189 (internal quotation marks omitted).9
The sentence that was imposed was undoubtedly what the distriсt court thought was appropriate, and the division of the time between the racketeering and firearms charges was a matter of legal form. These facts reinforce our conclusion that the acceptance of the plea to the firearms charge was not plain error. Even where the other requirements for a finding of plain error are present, the Supreme Court has reminded us that courts should not exercise their discretion to notice even a plain error unless that “error affected the defendant‘s substantial rights.” Henderson, 568 U.S. at 276 (internal quotation marks omitted). To meet that standard “[i]n a case . . . in which the outcome was a conviction based on a plea of guilty, the appellant must show that there is a reasonable probability that, but for the error, he would nоt have pleaded guilty.” Dussard, 967 F.3d at 156. Martinez can not meet that standard here, where the charges in the superseding information were settled upon as part of a negotiated disposition of the case, the defendant agreed to plead guilty in the hope of obtaining leniency by cooperating with the authorities, and the ultimate sentence was based on the seriousness of the underlying murder charge, and would certainly be reimposed if the case were remanded for resentencing solely on the RICO counts.
CONCLUSION
Accordingly, the judgment of the district court is AFFIRMED.