Gomez v. United States

87 F.4th 100

Carlos GOMEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 21-2632

August Term 2022

United States Court of Appeals, Second Circuit

Submitted: November 22, 2022

Decided: November 21, 2023

On Appeal from the United States District Court for the Southern District of New York

Sarah Kunstler, Law Offices of Sarah Kunstler, Brooklyn, NY, for Petitioner-Appellant.

Brandon D. Harper, Hagan Scotten, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellee.

Before: Kearse, Park, and Menashi, Circuit Judges.

Menashi, Circuit Judge:

Petitioner-Appellant Carlos Gomez, currently incarcerated, appeals from the denial of his successive § 2255 motion to vacate his sentence for the use or carrying of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). In his motion, Gomez argued that his § 924(c) conviction—predicated on the murder of and the conspiracy to murder Jose Gonzalez Santiago as charged in a racketeering count—must be vacated because the jury might have relied on a now-invalid conspiracy predicate. See United States v. Barrett, 937 F.3d 126, 128 (2d Cir. 2019) (holding that a conspiracy to commit a crime of violence such as Hobbs Act robbery is not itself a crime of violence in light of United States v. Davis, 588 U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019)), vacated on other grounds, 599 U.S. 453, 143 S. Ct. 1713, 216 L.Ed.2d 400 (2023).

The district court denied the motion. United States v. Gomez, No. 97-CR-696, 2021 WL 3617206 (S.D.N.Y. Aug. 16, 2021). It determined that Gomez's § 924(c) conviction rested on the valid predicate crime of intentional murder under New York law. The district court further concluded that its Pinkerton instruction—which permits a jury to convict a defendant of a substantive offense committed by his co-conspirators—did not undermine the validity of the substantive murder predicate as a crime of violence. See Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Because we have not yet addressed the issue, the district court issued a certificate of appealability as to "whether the Court's jury instruction on Pinkerton liability affects the validity of an 18 U.S.C § 924(c) predicate." App'x 32.

We conclude that a conviction for intentional murder under New York law, even when the conviction is based on a Pinkerton theory, is a categorical crime of violence that can support a § 924(c) conviction. Under a Pinkerton theory the defendant is convicted of the substantive offense—not of conspiring to commit the offense—so he has committed a crime of violence if the substantive offense is a crime of violence. Because Pinkerton does not transform a substantive offense into a conspiracy offense, it does not implicate Davis. Accordingly, we affirm the judgment of the district court.

BACKGROUND

In the 1980s and 1990s, Gomez founded and led the Westchester Avenue Crew, a Bronx-based heroin and cocaine distribution enterprise. Gomez was arrested in 1997 and was ultimately indicted on fifteen counts.

The superseding indictment charged Gomez with racketeering in violation of 18 U.S.C. § 1962(c) (Count 1). Among the racketeering acts, "Act of Racketeering One" was premised alternatively on the conspiracy to murder or the murder of Santiago in violation of New York law. Add. 4. In addition, Gomez was charged with using or carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count 10). This charge was predicated on "the conspiracy to murder and murder of Jose Gonzalez Santiago . . . charged as Racketeering Act One in Count One, and in Counts Three and Four, of this Indictment." Add. 14.¹

I

At trial, the government presented evidence that Gomez personally ordered the killing of Santiago, provided the .38 caliber firearm used in the crime, and paid several thousand dollars to the person who carried out the killing. The government argued that Gomez ordered the murder in retaliation for the murder of one of Gomez's relatives, which Gomez believed may have been a failed attempt on his own life.

In instructing the jury on the racketeering count and its predicate acts, the district court explained the elements of second-degree murder under New York law. "Racketeering act 1(b) charges that he murdered and aided and abetted the murder of [Santiago]. Section 125.25 of the penal law of the State of New York makes it a crime to murder someone." Supp. App'x 42. "New York law says[ ] a person is guilty of murder when with intent to cause the death of another person he causes the death of such person or of a third person." Id.

The district court then explained that, in order to find Gomez guilty of violating § 924(c), there must be proof that Gomez either used or carried a firearm—or aided and abetted others in doing so—during and in relation to a crime of violence for which he could be prosecuted in federal court, "to wit, the conspiracy to murder and murder of [Santiago] charged in racketeering act 1 and count 1 and in counts 3 and 4 of this indictment." Id. at 48. The district court informed the jury that to "convict Mr. Gomez under count 10 you must find the government has proven beyond a reasonable doubt his involvement in either the conspiracy to murder [Santiago] or the murder of [Santiago], but not both." Id. at 49.

The district court instructed the jury on Pinkerton liability as follows:

If, in light of my instructions, you find beyond a reasonable doubt that the defendant was a member of the conspiracy charged in the indictment, for example, the conspiracy to murder [Santiago], then you may also, but you are not required to, find him guilty of the corresponding substantive crime charged, in this example, the murder of [Santiago] and the use and carrying of a firearm during and in relation to the conspiracy to murder and murder of [Santiago].

Id. The district court then explained that Pinkerton liability required findings that the substantive offense was committed by members of the conspiracy pursuant to a common plan or understanding and that the offense was reasonably foreseeable.

The jury convicted Gomez on four counts: racketeering (Count One), racketeering conspiracy (Count Two), using or carrying a firearm during a crime of violence (Count Ten), and narcotics conspiracy (Count Fifteen). As to racketeering, the jury found that both the murder of Santiago and the conspiracy to commit the murder had been proven. Add. 32. The jury convicted Gomez on the § 924(c) charge in relation to the same murder and conspiracy to murder. Add. 32-33.²

Pursuant to the then-mandatory Sentencing Guidelines, the district court sentenced Gomez to three concurrent life sentences—for racketeering, racketeering conspiracy, and narcotics conspiracy—followed by a consecutive sixty-month sentence for the § 924(c) conviction.

II

The jury convicted Gomez in September 1999 and he was sentenced in July 2000. In December 2001, we affirmed the judgment on direct appeal. United States v. Feliciano, 26 F. App'x 55, 57 (2d Cir. 2001). In March 2003, the district court denied Gomez's first § 2255 motion and declined to issue a certificate of appealability.

In 2021, we granted Gomez leave to file a successive § 2255 motion in light of Davis. The district court issued an opinion denying the motion but granted a certificate of appealability "regarding the issue of whether the Court's jury instruction on Pinkerton liability affects the validity of an 18 U.S.C. § 924(c) predicate." App'x 32. Proceeding pro se, Gomez appealed the judgment denying his § 2255 motion.

After the appeal was submitted, we ordered the appointment of counsel for Gomez and instructed the parties to address (1) whether the district court's instruction on Pinkerton liability affected the validity of Gomez's 18 U.S.C. § 924(c) conviction; (2) whether Gomez's claim is subject to the concurrent sentence doctrine; (3) whether Gomez's claim has been procedurally defaulted; and (4) whether any error was harmless.

DISCUSSION

A federal inmate may move the district court to "vacate, set aside or correct" a sentence if "the sentence was imposed in violation of the Constitution or laws of the United States . . . or [the sentence] is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). In reviewing the denial of Gomez's § 2255 motion, we review the district court's legal conclusions de novo and defer to its findings of fact unless those findings are clearly erroneous. Rivera v. United States, 716 F.3d 685, 687 (2d Cir. 2013).

I

We first consider the government's arguments for not reaching the merits based on the concurrent sentence doctrine, procedural default, and harmless error. We are unable to avoid reaching the merits on any of these bases.

A

The concurrent sentence doctrine is "a rule of judicial convenience" that "allows courts, in their discretion, to avoid reaching the merits of a claim altogether in the presence of identical concurrent sentences since a ruling in the defendant's favor would not reduce the time served or otherwise prejudice him in any way." Kassir v. United States, 3 F.4th 556, 561 (2d Cir. 2021) (internal quotation marks and footnote omitted). In addition, we have discretion to apply the doctrine in the context of challenged consecutive sentences when (1) the collateral challenge will have no effect on the time the defendant must remain in custody and (2) the unreviewed conviction will not yield additional adverse collateral consequences. Al-'Owhali v. United States, 36 F.4th 461, 467 (2d Cir. 2022).

Gomez is currently serving three concurrent terms of life imprisonment for three separate counts, to be followed by a sixty-month sentence for the § 924(c) conviction that he now challenges through his § 2255 motion. He received his sentence when the Guidelines were understood to be mandatory. See United States v. Booker, 543 U.S....