Dasilva v. United States

Background

Oneil DaSilva moved under 28 U.S.C. § 2255, a federal law allowing a person in federal custody to challenge a sentence, to vacate, set aside, or correct his sentence. The underlying criminal case was No. 15-cr-95 (AJN). DaSilva had been charged with racketeering conspiracy, narcotics conspiracy, narcotics distribution near schools or playgrounds, and using, carrying, and possessing firearms during and in relation to the first two conspiracies.

DaSilva pleaded guilty to Count Four on December 8, 2016. The count charged a firearm offense under 18 U.S.C. § 924(c)(1)(A), and the plea record stated that the firearm conduct related to both the racketeering conspiracy and the narcotics conspiracy. DaSilva admitted during the plea hearing that he discharged a gun in relation to a drug deal and in connection with his relationship with BMB. The court sentenced him on May 12, 2017, to 180 months in prison, followed by five years of supervised release, and imposed a $100 special assessment.

DaSilva’s claims

DaSilva made two principal arguments. First, relying on the Supreme Court’s decision in United States v. Davis, he argued that his § 924(c) conviction was unconstitutional because it was based partly on the racketeering conspiracy. Davis held that the residual-clause definition of a “crime of violence” in § 924(c)(3)(B) was unconstitutionally vague. After Davis, a crime of violence must have the use of force as an element, while a drug-trafficking crime remains a separate type of predicate offense under § 924(c).

Second, DaSilva argued that his lawyer, Joseph Grob, provided ineffective assistance by advising him to plead guilty to Count Four even though, in DaSilva’s view, the count improperly combined multiple predicate offenses. To establish ineffective assistance, DaSilva had to show both that counsel’s performance was constitutionally deficient and that the deficiency prejudiced him.

Court’s analysis

The court rejected the Davis claim on the merits. It reasoned that DaSilva’s firearm conviction rested on both the racketeering conspiracy and the narcotics conspiracy. Because § 924(c) permits a firearm conviction based on either a crime of violence or a drug-trafficking crime, the later invalidity of the crime-of-violence theory did not disturb the conviction’s support through the narcotics conspiracy. The court also found that the plea agreement and plea hearing made the two predicates clear, so the record was not silent about the basis for the conviction.

The court further held that Count Four was not improperly combined, or “duplicitous.” It explained that a single § 924(c) count may rely on multiple intertwined conspiracy predicates and may involve multiple firearm uses. The court distinguished a case involving a general jury verdict because DaSilva’s plea agreement and plea allocution specified both predicates.

The ineffective-assistance claim failed under both required parts of the test. Counsel’s advice was not deficient because an objection based on duplicity would have lacked merit. DaSilva also failed to show prejudice. The court found that rejecting the plea agreement on this ground would not have been rational, that an objection would not have been fatal to the count, and that DaSilva had not shown that he would have gone to trial. The court also declined to credit his later assertion that he had not used a gun in furtherance of the narcotics conspiracy because that assertion conflicted with his sworn plea-hearing testimony.

Disposition

The court denied DaSilva’s § 2255 petition. It declined to issue a certificate of appealability, certified that any appeal would not be taken in good faith, and denied permission to appeal without paying filing fees. The Clerk was directed to terminate the pending motion in the criminal case and close the related civil case.