United States v. Jones

935 F.3d 266

UNITED STATES of America, Plaintiff – Appellee,

v.Deloyd JONES, also known as Puggy Jones; Byron Jones, also known as Big Baby Jones; Sidney Patterson, also known as Duda Man Patterson, Defendants – Appellants.

No. 18-30256

United States Court of Appeals, Fifth Circuit.

FILED August 12, 2019

Kevin G. Boitmann, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, Jeffrey Ryan McLaren, Assistant U.S. Attorney, Nolan D. Paige, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.

Samantha Jean Kuhn, Assistant Federal Public Defender, Valerie Welz Jusselin, Assistant Federal Public Defender, Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant Deloyd Jones, also known as Puggy Jones.

Rachel Isabel Conner, Conner & Sothern, New Orleans, LA, for Defendant-Appellant Byron Jones, also known as Big Baby Jones.

Autumn Alycia Town, Law Office of Autumn Town, New Orleans, LA, for Defendant-Appellant Sidney Patterson, also known as Duda Man Patterson.

Before SMITH, WIENER, and ELROD, Circuit Judges.

PER CURIAM:

Appellants were convicted of a series of racketeering, drug, and firearm offenses—including several offenses under 18 U.S.C. § 924—in connection with their activities as members of a New Orleans gang. While this appeal was pending, the Supreme Court decided United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which held that the residual clause of § 924(c) is unconstitutionally vague. Appellants now seek vacatur of their § 924 convictions. We VACATE the challenged convictions and REMAND.

I.

Appellants Deloyd Jones, Byron Jones, and Sidney Patterson were convicted of racketeering, drug, and firearm offenses arising out of their membership in the New Orleans gang "Ride or Die." Among these were several convictions under 18 U.S.C. § 924. For each § 924 offense, the indictment charged a Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy—Count 1 in the indictment—as a predicate crime of violence, and a controlled-substance conspiracy—Count 2 in the indictment—as a predicate drug trafficking crime. The verdict form did not require the jury to specify which predicate offense or offenses it relied upon in convicting Appellants of the § 924 offenses.

On appeal, we reversed four of the convictions for insufficient evidence, affirmed the remaining convictions, and remanded for resentencing.¹ United States v. Jones , 873 F.3d 482, 500 (5th Cir. 2017). Appellants appeal a second time. In their briefs, they argue that their § 924 convictions are unconstitutional under Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), and our decision in United States v. Davis , 903 F.3d 483 (5th Cir. 2018). When Appellants filed their briefs, Davis was still pending before the Supreme Court. After the oral argument in this case, the Supreme Court issued its opinion in Davis , which affirmed our decision on the relevant issue. 139 S. Ct. at 2336. Because both Davis decisions were issued after Appellants’ resentencings, they did not raise this issue in their previous appeal or in the district court.

II.

In Sessions v. Dimaya , the Supreme Court invalidated the residual clause of 18 U.S.C. § 16(b) as unconstitutionally vague. 138 S. Ct. at 1223. Months later, in United States v. Davis , we relied on Dimaya to hold that the identically-phrased residual clause of 18 U.S.C. § 924(c) is unconstitutionally vague as well. 903 F.3d at 486. The Supreme Court agreed and affirmed our holding in that regard. Davis , 139 S. Ct. at 2336.

The parties agreed in their briefs that under Dimaya and our decision in Davis , RICO conspiracy is not a § 924(c) crime of violence. In a Federal Rule of Appellate Procedure 28(j) letter, the government acknowledged that the same is true under the Supreme Court’s Davis decision. See Gov’t’s Fed. R. App. P. 28(j) Letter (June 26, 2019). Because the jury in Appellants’ case may have based Appellants’ § 924 convictions on the now-invalid RICO conspiracy predicate, Appellants contend that each of those convictions is unconstitutional.² Appellants advance two alternative arguments in support of their position: (1) permitting § 924 convictions predicated on RICO conspiracy is structural error requiring automatic reversal; and (2) the § 924 convictions should be reversed under plain error review.

A.

Structural error is constitutional error that " ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’ " Weaver v. Massachusetts , ––– U.S. ––––, 137 S. Ct. 1899, 1907, 198 L.Ed.2d 420 (2017) (alteration in original) (quoting Arizona v. Fulminante , 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ). If an error is structural, it is not harmless beyond a reasonable doubt, and it warrants automatic reversal. See id.

Structural error does not occur when a jury rendering a general verdict "was instructed on alternative theories of guilt and may have relied on an invalid one." Hedgpeth v. Pulido , 555 U.S. 57, 58, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008) ; accord United States v. Skilling , 638 F.3d 480, 481 (5th Cir. 2011). That is precisely what occurred here: the jury was given two theories of guilt for the § 924 offenses—a crime of violence predicate and a drug trafficking predicate—and it may have relied on the invalid crime of violence predicate to the exclusion of or in addition to the valid drug trafficking predicate. Thus, under Hedgpeth , plain error review applies. See United States v. Flores , 2018 WL 2709855, at *6–7 (D. Nev. June 5, 2018) (holding that inclusion of invalid § 924(c) crime of violence predicate in jury instructions was not structural error where jury was also given valid drug trafficking predicate); see also United States v. Percel , 553 F.3d 903, 908–09 (5th Cir. 2008) ("Generally, incorrect jury instructions are not considered structural errors."); Jimenez v. Wood Cty. , 660 F.3d 841, 845 (5th Cir. 2011) (en banc) ("Where a proper objection is not made, ... our review of a jury instruction challenge is limited to review for plain error.").

Moreover, we recently applied plain error review under circumstances similar to Appellants’: the appellant was convicted of a firearm offense under § 924(c) based on a predicate crime of violence that the parties agreed was invalid in light of our decision in Davis . United States v. Lewis , 907 F.3d 891, 893–94 (5th Cir. 2018), cert. denied , No. 18-989, ––– U.S. ––––, 139 S.Ct. 2776, ––– L.Ed.2d ––––, 2019 WL 358452 (June 28, 2019). We have also applied plain error review in the analogous context of Johnson³ and Dimaya errors. E.g. , United States v. Fuentes , 906 F.3d 322, 324–25 (5th Cir. 2018) ( Johnson error); United States v. Rubio-Sorto , 760 F. App'x 258, 259–60 (5th Cir. 2019) ( Dimaya error); see also Shabazz v. United States , 923 F.3d 82, 84 (2d Cir. 2019) (concluding that Johnson error in sentencing was not structural). We likewise hold that the Davis error in this case is not structural.

B.

Appellants next argue that even if the error here is not structural, we must reverse their convictions under plain error review.⁴ Plain error review consists of four prongs: (1) there must be an error; (2) the error must be "clear or obvious, rather than subject to reasonable dispute"; (3) "the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings’ "; and (4) the court must decide in its discretion to correct the error because it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (alteration in original) (quoting United States v. Olano , 507 U.S. 725, 734, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ).

The government concedes that prong one of the plain error review framework is satisfied here because, under both Davis decisions, it was error to permit the jury to convict Appellants under § 924 based on RICO conspiracy as a crime of violence. The government also concedes prongs two and four: that the error is plain because both Davis opinions were issued while this appeal was pending, and that, if the error affected Appellants’ substantial rights, "the failure to remedy the mistake would be manifestly unfair."

The government is correct to concede these points. In Davis , we held that Hobbs Act conspiracy was not a crime of violence because it did "not necessarily require proof that a defendant used, attempted to use, or threatened to use force"—instead, "conspiracy to commit an offense is merely an agreement to commit an offense." 903 F.3d at 485. The Supreme Court’s Davis opinion left this reasoning intact. 139 S. Ct. at 2336 (vacating only our decision not to vacate the appellants’ sentences on all counts). Similarly, RICO conspiracy only requires that (1) "two or more people agreed to commit a substantive RICO offense"; and (2) "the defendant knew of and agreed to the overall objective of the RICO offense." Jones , 873 F.3d at 489. Accordingly, RICO conspiracy is not a crime of violence, and the district court erred in permitting Appellants’ § 924 convictions to be predicated on this offense. In addition, because we decided Davis in September 2018 and the Supreme Court decided Davis in June 2019, the error is plain. United States v. Escalante-Reyes , 689 F.3d 415, 423 (5th Cir. 2012) (en banc) ("[T]he ‘plainness’ of the error should be judged by the law at the time of appeal.").

As for prong four of plain error review, the Davis error here increased Appellants’ sentences significantly and even resulted in additional life sentences for Deloyd Jones and Patterson. Declining to correct this "particularly egregious error[ ]" would therefore "cast significant...