Pagan v. United States

Background

Wilson Pagan filed a petition under 28 U.S.C. § 2255, a procedure that allows a federal prisoner to challenge a conviction or sentence. The petition initially raised three grounds. The court had already resolved two and had delayed briefing on the remaining claim: that the residual clause of 18 U.S.C. § 924(c), which defined a qualifying crime of violence by reference to the risk that physical force might be used, was unconstitutionally vague.

After later decisions, including United States v. Davis, the court applied the rule that a conviction under 18 U.S.C. § 924(c) or § 924(j) cannot rest on an underlying conspiracy offense that does not satisfy the statute's elements, or force, clause. The elements clause covers an offense that includes the use, attempted use, or threatened use of physical force against another person or that person's property.

Pagan challenged three firearm-related convictions:

- Count 30, a firearm charge connected to a racketeering conspiracy; - Count 32, a firearm-related charge connected to several violent crimes, including murder conspiracy, conspiracy to assault with a dangerous weapon, attempted murder, and murder; and - Count 33, a firearm charge connected to a conspiracy to commit assault with a dangerous weapon.

The opinion states that Pagan did not dispute that Count 29, which was based on a drug-trafficking crime, should remain valid.

Count 30 and Count 33

The United States conceded that Counts 30 and 33 had to be vacated because each rested solely on a conspiracy offense. The court accepted that position and granted the petition as to those counts.

Count 32: Procedural Default

Pagan had not raised the vagueness challenge to Count 32 on direct appeal. Generally, a claim not raised on direct appeal cannot be raised later under § 2255 unless the petitioner shows cause and actual prejudice or proves factual innocence. Pagan argued that the claim was unavailable during his appeal because the Supreme Court had not yet decided the later case that invalidated the residual clause. He also argued that raising the claim would have been futile under the law then controlling in the Second Circuit.

The court rejected those arguments. It concluded that the vagueness argument was available before Pagan's appeal was completed because the Supreme Court had already decided a similar vagueness case, Johnson II, before his appellate briefing and oral argument. The court also ruled that the possibility that the argument would have failed under then-controlling circuit precedent did not establish cause. The vagueness challenge to Count 32 was therefore procedurally defaulted.

Count 32: Merits

The court nevertheless considered the merits of Count 32. It agreed that conspiracy predicates could no longer support the conviction after Davis. But the court concluded that the conviction could stand because the jury had also convicted Pagan of substantive murder and attempted murder offenses and had necessarily found that a firearm was used in connection with the murder charged in Count 5.

The court held that at least one valid underlying predicate was enough to preserve the firearm-related conviction. It further held that intentional murder and attempted murder under the relevant New York statutes qualify as crimes of violence under the elements clause. Although the statute also addressed reckless conduct, the court found that the relevant charges and jury instructions required intent to kill. The reckless alternative therefore did not undermine Count 32.

Resentencing and Disposition

The court deferred deciding whether to vacate only the convictions and sentences on Counts 30 and 33 or to conduct a full resentencing. It ordered Pagan to state his position on whether a federal sentencing rule concerning consecutive firearm sentences would apply at resentencing, and ordered the United States to respond.

The conclusion states that the petition was granted as to Counts 30 and 33 and denied as to Count 32. The court also stated that no certificate of appealability would issue as to Count 32 because Pagan had not made a substantial showing that a constitutional right was denied. The clerk was directed to docket the order in both listed matters and close the civil case.