Varona v. United States

Background

Randy Varona pleaded guilty in 1996 to three counts, including possessing or using a firearm during and in connection with a crime of violence under 18 U.S.C. § 924(c). The predicate crime of violence was identified as the murder of Pedro Melle in aid of racketeering. In 1997, the court sentenced Varona to consecutive prison terms totaling 28 years. He was released in 2019 and was serving supervised release when he pursued this challenge.

Varona moved under 28 U.S.C. § 2255, which permits a federal prisoner to ask the sentencing court to vacate, set aside, or correct a conviction or sentence on specified legal grounds. He argued that murder in aid of racketeering was not categorically a crime of violence under § 924(c)(3)(A), the provision requiring the use, attempted use, or threatened use of physical force. He contended that the offense could cover reckless murder or felony murder and that the court could not rely on his plea statements. Alternatively, he argued that intentional murder could be committed by omission, or failing to act, and therefore did not necessarily involve the use of physical force.

Procedural default

The Government argued that Varona’s challenge was procedurally defaulted because he did not raise it on direct appeal. The court assumed that the legal basis for the challenge was sufficiently novel in 1997 that it was not reasonably available at that time. But the court concluded that Varona had not shown the required prejudice or actual innocence. It therefore held that the motion was procedurally barred and also considered the merits.

Merits

The court explained that, after the Supreme Court invalidated § 924(c)(3)(B)’s residual clause as unconstitutionally vague, a predicate offense must satisfy § 924(c)(3)(A)’s elements clause. Under the categorical approach, a court compares the statutory elements of the offense with the elements clause. If a statute is divisible—meaning it lists multiple crimes with different elements—the court uses the modified categorical approach and may review a limited set of conviction records, including the charging document and plea colloquy, to identify the crime of conviction.

The court held that 18 U.S.C. § 1959(a), the racketeering statute at issue, is divisible because it covers multiple offenses with distinct elements. The charging document did not identify the particular type of murder, but the court found that Varona’s plea statements showed that he intentionally shot Pedro Melle because Melle was interfering with Varona’s enterprise’s drug-selling territory. The court therefore identified the predicate offense as intentional murder in aid of racketeering.

Relying primarily on Second Circuit precedent, the court held that intentional murder in aid of racketeering is categorically a crime of violence under § 924(c)(3)(A). It rejected Varona’s argument that the possibility of committing murder by omission defeats that conclusion, reasoning that an omission can count as criminal conduct when the law imposes a duty to act and that intentionally causing death necessarily involves physical force.

Disposition

Judge Paul A. Crotty denied Varona’s § 2255 motion to vacate the § 924(c) conviction. The court found that no hearing was required because the record and controlling law made the legal argument futile. It also ruled that Varona had not made the required substantial showing of a constitutional violation, so no certificate of appealability would issue. The court certified that an appeal would not be taken in good faith, denied permission to appeal without paying filing fees, and directed the clerk to close the motion and the civil case.