Gomez v. United States

Background

Carlos Gomez, proceeding without a lawyer, moved under 28 U.S.C. § 2255 to vacate his conviction for using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The Second Circuit had authorized him to file this successive motion in light of Johnson v. United States and United States v. Davis.

Gomez was convicted after a jury trial of racketeering, racketeering conspiracy, narcotics conspiracy, and the § 924(c) firearm offense. The firearm conviction was based on both conspiracy to murder and the substantive murder of Jose Gonzalez Santiago. The jury returned a general verdict and therefore did not identify which predicate offense or offenses supported the firearm conviction. Gomez argued that the invalidity of conspiracy to murder made it impossible to determine whether the firearm conviction could stand. He requested that the court vacate that conviction and resentence him on the remaining counts. The government opposed the motion.

Legal standard

Section 924(c) permits a firearm conviction based on using or carrying a firearm during and in relation to a crime of violence. After Davis, the statute’s residual clause—which covered felonies involving a substantial risk that physical force might be used—is unconstitutionally vague. A predicate offense must therefore satisfy the statute’s elements clause, meaning that it must include the use, attempted use, or threatened use of physical force against another person or property.

Courts apply the categorical approach, examining the minimum conduct required for conviction rather than the defendant’s specific conduct. The court noted that a mere conspiracy to commit a crime of violence ordinarily does not qualify as an elements-clause crime of violence. It also explained that when a § 924(c) conviction rests on both valid and invalid predicates, the valid predicate may sustain the conviction if it was overwhelmingly likely that any reasonable juror would have convicted on the valid theory.

Court’s analysis

The government did not dispute that conspiracy to commit murder was no longer a valid § 924(c) predicate. The court nevertheless held that Gomez’s conviction rested on a valid predicate: substantive murder under New York Penal Law § 125.25(1). Relying on the Second Circuit’s en banc decision concerning New York first-degree manslaughter, the court concluded that New York murder is categorically a crime of violence because its causation and intent requirements can be satisfied only through the knowing use of violent force causing death in pursuit of the defendant’s purpose.

The court also rejected Gomez’s argument concerning the jury’s Pinkerton instruction. A Pinkerton instruction allows, but does not require, a jury to hold a defendant responsible for substantive crimes committed by co-conspirators when those crimes were reasonably foreseeable consequences of the conspiracy. Although the court acknowledged tension between that theory and the categorical approach, it followed the bulk of authority holding that the presence of a Pinkerton instruction generally does not affect the § 924(c) analysis. The court determined that it was overwhelmingly likely that a reasonable juror would have convicted Gomez based on the substantive murder predicate alone.

Disposition

Because the firearm conviction undoubtedly rested on the substantive murder predicate, and because New York murder is a categorical crime of violence, Judge Sidney H. Stein denied Gomez’s successive motion under § 2255. The court did not vacate the conviction or resentence Gomez.

Note on dates

The supplied case information lists a filing date of October 19, 2021, while the opinion itself is dated August 16, 2021.