DeJesus v. United States

Background

Fidel DeJesus was charged in a multi-defendant racketeering indictment with six counts, including participating in a racketeering enterprise, conspiracies to commit murder and assault in aid of racketeering, attempted murder and assault in aid of racketeering, and discharging a firearm in relation to crimes of violence. On May 3, 2013, he pleaded guilty to Count Seven, which charged brandishing a firearm in relation to crimes of violence under 18 U.S.C. § 924(c)(1)(A). The court sentenced him to seven years in federal prison on November 12, 2013. He did not appeal.

In 2016, DeJesus filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge the legality of a conviction or sentence. He argued that the offenses underlying his firearm conviction were no longer “crimes of violence” after Johnson v. United States. The motion was held while related legal issues were considered. After the Supreme Court decided United States v. Davis in 2019, DeJesus maintained his challenge. The government argued that his plea agreement barred the challenge and, alternatively, that his claim was procedurally barred and lacked merit.

Legal standard and analysis

Section 924(c) imposes criminal liability for using, carrying, or possessing a firearm in connection with a “crime of violence” or drug-trafficking crime. The statute defines “crime of violence” through two provisions. The “force clause” covers a felony that has as an element the use, attempted use, or threatened use of physical force against another person or property. The “risk-of-force clause” covered a felony that, by its nature, involved a substantial risk that physical force would be used.

In Davis, the Supreme Court held that the risk-of-force clause was unconstitutionally vague. The court explained that Davis did not invalidate the force clause. It then examined whether at least one predicate offense supporting DeJesus’s conviction qualified under that clause.

The court applied the modified categorical approach. That approach permits a court, when a statute lists alternative elements defining separate offenses, to examine a limited set of records—such as the indictment, plea agreement, and plea hearing—to identify which offense the defendant was convicted of. The court concluded that the federal Violent Crimes in Aid of Racketeering statute and the relevant New York assault statutes were divisible, meaning they listed alternative offenses or elements.

The indictment identified assault in aid of racketeering based on New York second-degree and first-degree assault provisions. The court determined that the relevant intentional forms of assault require the intentional use of physical force and therefore satisfy Section 924(c)’s force clause. During his plea hearing, DeJesus stated that he and another person planned to assault members of the Latin Kings, that he pulled out a firearm, and that he fired it in their direction. The court found that these statements established his intent to commit assault.

Disposition

Judge Colleen McMahon denied DeJesus’s Section 2255 motion, holding that his firearm conviction properly rested on a qualifying crime of violence under the force clause and was unaffected by Davis. The court also found that DeJesus had not made the required substantial showing that a constitutional right had been denied, so it refused to issue a certificate of appealability. Finally, under 28 U.S.C. § 1915(a)(3), the court found that an appeal from the order would not be taken in good faith.