14-851-cr; 14-1033-cr 

United States v. Boykin 

14-851-cr; 14-1033-cr 

United States v. Boykin 

1 UNITED STATES COURT OF APPEALS 

2 FOR THE SECOND CIRCUIT

3

4 August Term, 2015 

5

6 (Argued: April 25, 2016 Decided: August 30, 2016) 

7

8 Docket Nos. 14-851-cr; 14-1033-cr 

9 ________________________________________________________________________ 

10

11 UNITED STATES OF AMERICA,

12

13         Appellee,

14        v.               

15

16                                                             PAUL ARLINE, AKA FACE, ET AL.,

17

18      Defendants,

19

20                                                 ANTHONY BOYKIN, AKA DOUBLE  O,

21                                                               JUSTIN SIMMONS, AKA JUSTO,

22

        Defendants‐Appellants.*1 23

24 ________________________________________________________________________ 

25

26 Before:    

27 WALKER, CALABRESI, HALL, Circuit Judges.  

28

29 Appeal from a final judgment of the United States District Court for the

30 Southern District of New York (McMahon, J.).  Following a jury trial, Defendant‐

31 Appellant Justin Simmons was convicted, inter alia, of two counts of possession

32 of a firearm in furtherance of a crime of violence or drug trafficking crime, in

33 violation of 18 U.S.C. § 924(c).  The district court sentenced Simmons to a five‐

34 year term of imprisonment for one of the convictions under § 924(c).  Pursuant to

                                                            

*

  The Clerk of Court is requested to amend the official caption in this case to

conform to the listing of the parties above.  
2

1 § 924(c)(1)(C), the court also sentenced Simmons to a twenty‐five‐year term of

2 imprisonment for the second § 924(c) conviction, each sentence to run

3 consecutively to the other.  On appeal, Simmons challenges his sentence on the

4 ground that (1) in light of Alleyne v. United States, 133 S. Ct. 2151 (2013), the fact of

5 whether he had a “second or subsequent” § 924(c) conviction should have been

6 found by the jury, and (2) one or the other of his convictions under § 924(c) was

7 multiplicitous because they involved potentially overlapping conduct.  

8

9 We hold that Alleyne does not alter our Court’s prior holding in United

10 States v. Anglin, 284 F.3d 407 (2d Cir. 2002) (per curiam), that the existence of a

11 “second or subsequent” § 924(c) conviction is a sentencing factor that need not be

12 submitted to a jury.   We further hold that Simmons’s two § 924(c) convictions

13 were not multiplicitous because there was an ample basis for the jury to convict

14 Simmons for two separate violations of § 924(c).  Consequently, that there was no

15 jury instruction requiring the jury to find that the guns subject of each § 924(c)

16 charge must have been possessed on separate occasions did not amount to plain

17 error.  For the same reasons, it was not plain error for the district court to find

18 implicitly at sentencing that the two § 924(c) convictions were based on separate

19 conduct, thereby subjecting Simmons to mandatory minimum, consecutive

20 sentences based on a “second or subsequent” § 924(c) conviction.   

21

22 We address in a separate summary order filed with this opinion

23 Simmons’s challenges to his conviction for participating in a racketeering

24 conspiracy.   

25

26     AFFIRMED.

27 BENJAMIN GREENWALD, The Law Office of

28 Benjamin Greenwald, New Windsor, New York,

29 for Defendant‐Appellant.

30

31 MICHAEL D. MAIMAN, Assistant United States

32 Attorney (Emil J. Bove, III, Michael A. Levy,

33 Assistant United States Attorneys, on the brief), for

34 Preet Bharara, United States Attorney for the

35 Southern District of New York, for Appellee.  

36
3

1 PER CURIAM:

2

3 Following a jury trial, Defendant‐Appellant Justin Simmons was convicted

4 of participating in a racketeering enterprise and conspiracy, in violation of 18

5 U.S.C. §§ 1961, 1962(c) and (d), and a narcotics conspiracy, in violation of 21

6 U.S.C. § 846.  He was also convicted of two counts of possession of a firearm in

7 furtherance of a crime of violence or drug trafficking crime, in violation of 18

8 U.S.C. § 924(c): one for possession of a firearm in furtherance of the racketeering

9 enterprise and conspiracy and the other for possession of a firearm in furtherance

10 of the narcotics conspiracy.  The district court sentenced Simmons to a five‐year

11 term of imprisonment for one of the § 924(c) convictions.    Pursuant to                    

12 § 924(c)(1)(C)—which provides for a mandatory minimum of twenty‐five years’

13 imprisonment for a “second or subsequent” conviction under § 924(c)—the court

14 sentenced Simmons to a twenty‐five‐year term of imprisonment for the second      

15 § 924(c) conviction, each to run consecutively to the other and to the sentences

16 imposed for the racketeering and narcotics convictions, for a total term of fifty

17 years’ imprisonment.   

18 On appeal, Simmons argues, with respect to that part of his sentence based

19 on the firearms convictions, that (1) the fact of whether he had a “second or
4

1 subsequent” § 924(c) conviction should have been determined by the jury, and

2 (2) one or the other of his convictions under § 924(c) was multiplicitous because

3 they involved potentially overlapping conduct.    For the following reasons, the

judgment is AFFIRMED.2 4    

5 BACKGROUND

6 In 2013, Simmons was charged with multiple offenses stemming from his

7 involvement with the Bloods gang operating out of Newburgh, New York

8 (“Newburgh Bloods”).    Count One charged him with participating in a

9 racketeering enterprise, in violation of 18 U.S.C. §§ 1961 and 1962(c), and set

10 forth six racketeering acts, all of which related to murder, attempted murder, or

11 robbery, except for predicate act five, which consisted of a narcotics distribution

12 conspiracy.   Count Two charged Simmons with participating in a racketeering

13 conspiracy, in violation of 18 U.S.C. § 1962(d).    The conduct underlying both

14 Counts One and Two was alleged to have occurred “[f]rom at least in or about

15 2006, up to and including in or about March 2013,” App’x 256, 263.    Count

16 Twelve charged Simmons with participating in a conspiracy to distribute and

                                                            

2 Simmons also argues on appeal that the evidence was insufficient to convict him of

participating in a racketeering conspiracy.    We reject this argument and affirm that

conviction in a separately filed summary order.  
5

1 possess with intent to distribute 280 grams or more of a controlled substance, in

2 violation of 21 U.S.C. § 846, “[f]rom at least in or about 2004, up to and including

3 in or about September 2011.”  App’x 274.   

4 Simmons was also charged with two counts of violating § 924(c).  Count

5 Thirteen charged Simmons with using and carrying firearms during and in

6 relation to, and possession of firearms in furtherance of, the narcotics conspiracy

7 described in Count Twelve, [f]rom at least in or about 2004, up to and including

8 in or about September 2011.” App’x 275.    Count Seventeen charged him with

9 using and carrying firearms during and in relation to, and possession of firearms

10 in furtherance of, a crime of violence, namely, the racketeering enterprise and

11 conspiracy charged in Counts One and Two, but “on occasions other than those

described” in Count Thirteen (among other counts).  App’x 277‐78.3 12    

13 At trial, the Government introduced evidence connecting Simmons to

14 numerous firearms.  With respect to the firearms possessed in conjunction with

15 the racketeering enterprise and conspiracy, the jury heard testimony that

16 Simmons was in possession (or aided in the possession) of a gun on three

                                                            

3

  Both § 924(c) counts included charges that Simmons aided and abetted others in the

commission of those firearms offenses.
6

1 occasions: (1) when he and another member of the Newburgh Bloods were

2 arrested in January 2008 while driving through the neighborhood of a rival gang;

3 (2) when Simmons passed along one of his guns to a fellow Newburgh Blood in

4 2009; and (3) when Simmons was on Lander St. in Newburgh with a fellow

5 member of the Newburgh Bloods.   

6 As for the firearms possessed in connection with the narcotics conspiracy,

7 the Government offered testimony that numerous guns were hidden in a

8 neighborhood block located on Lander St. in Newburgh where the Newburgh

9 Bloods sold crack cocaine.  These so‐called “block guns” were to be used when

10 “needed,” Trial Tr. 250, and were kept for “protection” from “other gangs” in the

11 course of selling drugs, Trial Tr. 851.   The jury heard testimony that Simmons

12 was seen on Lander St. in possession of one of these block guns.

13 In its summation, the Government sought to link the firearms to the

14 respective counts.  Thus, the gun discovered on Simmons when he was arrested

15 in January 2008, the gun he passed along in 2009, and the gun he possessed while

16 out with a fellow blood on Lander St. were tied to the racketeering enterprise

17 and conspiracy, while the block guns were connected to the narcotics conspiracy.  
7

1 The district court instructed the jury that the firearms charge contained in

2 Count Seventeen was “connected to the charges of racketeering and racketeering

3 conspiracy,” Trial Tr. 2211, while the firearms charge in Count Thirteen was

4 “connected to the narcotics conspiracy,” Trial Tr. 2210.  Neither Simmons nor the

5 Government asked the district court to instruct the jury that the guns in Count

6 Seventeen were alleged to have been possessed on occasions different from those

7 occasions forming the basis for Count Thirteen, and no such instruction was

8 given.  

9 At sentencing, the court sentenced Simmons to a five‐year term of

10 imprisonment for the § 924(c) conviction relating to the narcotics conspiracy and,

11 pursuant to § 924(c)(1)(C), to a twenty‐five‐year mandatory minimum term of

12 imprisonment for his § 924(c) conviction pertaining to the racketeering enterprise

13 and conspiracy, each to run consecutively to the other and to the other sentences,

14 for a total term of fifty years’ imprisonment.    Simmons did not object to the

15 court’s imposition of the twenty‐five‐year mandatory minimum for his

16 conviction for a “second or subsequent” § 924(c) offense.  This appeal followed.

17

18
8

1 DISCUSSION

2 I. The Fact of a “Second or Subsequent” Conviction under § 924(c)  

3 Simmons contends that the fact of whether he had a “second or

4 subsequent” § 924(c) conviction should have been found by the jury and the jury

5 should have been charged accordingly.  Because Simmons did not object on this

6 basis to either the district court’s jury charge or to the sentence, we review for

7 plain error.  United States v. Vilar, 729 F.3d 62, 88 (2d Cir. 2013) (jury instructions);

8 United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007) (sentencing).    Plain

9 error review permits relief only where (1) there is “error,” (2) the error “is plain,”

10 (3) the error “affect[s] substantial rights,” and (4) the error “seriously affect[s] the

11 fairness, integrity, or public reputation of judicial proceedings.”  United States v.

12 Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (quoting Johnson v. United States, 520

13 U.S. 461, 466–67 (1997)).     

14 The fact of a prior conviction may be decided by a judge and need not be

15 determined by a jury.  Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than

16 the fact of a prior conviction, any fact that increases the penalty for a crime beyond

17 the prescribed statutory maximum must be submitted to a jury, and proved

18 beyond a reasonable doubt.” (emphasis added)); see Almendarez‐Torres v. United
9

1 States, 523 U.S. 224, 243‐48 (1998) (holding that a prior conviction relevant only to

2 the sentencing of an offender found guilty of the charged crime is not a fact that

3 must be charged in the indictment or found by a jury beyond a reasonable

4 doubt).   We have held that the existence of a “second or subsequent” § 924(c)

5 conviction is a sentencing factor that need not be determined by a jury.  United

6 States v. Anglin, 284 F.3d 407, 409 (2d Cir. 2002) (per curiam) (holding that “the

7 fact of [a] prior conviction [under § 924(c)], a standard recidivist concern, is a

8 sentencing factor, not a separate element or offense” that must be submitted to a

9 jury); United States v. Campbell, 300 F.3d 202, 212 (2d Cir. 2002) (observing that

10 this Court “held [in Anglin] that the fact of a prior conviction is not an element of

11 a § 924(c) offense”).   

12 Simmons argues that Apprendi’s and Almendarez‐Torres’s holdings on this

13 issue are no longer good law because they did not survive the Supreme Court’s

14 decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that any fact

15 increasing the mandatory minimum sentence is an element of the crime and

16 must be found by the jury beyond a reasonable doubt, id. at 2155.    Alleyne,

17 however, has not altered the rule set forth in Apprendi and Almendarez‐Torres that

18 the fact of a prior conviction need not be determined by a jury.  See Alleyne, 133 S.
10

1 Ct. at 2160 & n.1 (declining to revisit the established rule that a judge not a jury

2 may decide the fact of a prior conviction); United States v. Del Rosario, 561 F.

3 App’x 68, 69 (2d Cir. 2014) (unpublished) (observing that Alleyne left intact the

4 rule that the fact of a prior conviction need not be submitted to the jury for

5 determination, and that, “under controlling Supreme Court precedent, the fact of

6 a prior felony conviction may be decided by a judge . . . even if that fact increases

7 the statutory minimum term of imprisonment to which the defendant is

8 exposed”); accord United States v. King, 751 F.3d 1268, 1280 (11th Cir. 2014)

9 (“Finding that a defendant’s convictions were ‘second or subsequent’ is the same

10 as finding that a defendant had a prior conviction, and the issue remains

11 governed by Almendarez‐Torres [and unaltered by Alleyne].”); United States v.

12 Mack, 729 F.3d 594, 609 (6th Cir. 2013) (concluding that Almendarez‐Torres

13 remains binding authority notwithstanding Alleyne and that a jury need not find

14 a defendant’s convictions were “second or subsequent” under § 924(c)(1)(C)(i)).  

15 We are satisfied there is no reason to disturb our established case law on this

issue.4 16   

                                                            

4

  To the extent Simmons argues that the district court was not permitted at sentencing

to determine the separateness of his § 924(c) convictions, we disagree.  We have held

that “the separateness of convictions is not a fact which is different in kind from the
11

1 II. Multiplicity of Simmons’s § 924(c) Convictions  

2 We construe Simmons’s remaining arguments as asserting that the two       

3 § 924(c) convictions were multiplicitous, and, relatedly, that it was error for the

4 court to fail to instruct the jury that proof of the violations in Counts Thirteen

5 and Seventeen needed to be based on separate conduct and error for the court

6 implicitly at sentencing, rather than the jury, to find that the two § 924(c)

7 convictions were based on separate conduct.  

8 The issue of whether the two § 924(c) convictions were multiplicitous is a

9 question of law, which we review de novo.  United States v. Mejia, 545 F.3d 179,

10 204 (2d Cir. 2008); United States v. Wallace, 447 F.3d 184, 186 (2d Cir. 2006).  As

11 noted, because Simmons did not object to the district court’s jury charge or

12 purported sentencing error, his challenge to each is reviewed for plain error.  

13 Vilar, 729 F.3d at 88; Villafuerte, 502 F.3d at 208.  

                                                                                                                                                                                               

types of facts already left to the sentencing judge by Almendarez‐Torres and Apprendi.”  

United States v. Santiago, 268 F.3d 151, 153, 156 (2d Cir. 2001) (applying Almendarez‐

Torres and Apprendi to 18 U.S.C. § 924(e)(1)’s mandatory minimum prison term for

defendants who have three previous convictions for a violent felony or serious drug

offense “committed on occasions different from one another” (internal quotation marks

omitted)); see United States v. Dantzler, 771 F.3d 137, 144 (2d Cir. 2014) (observing that

“we held in Santiago that the question of separateness of predicate offenses is

intertwined with the fact of conviction, and because a sentencing judge was authorized

to find the fact of conviction under Almendarez‐Torres and Apprendi, he could also find

that such convictions were separate”).  
12

1 A “second or subsequent” conviction under § 924(c) may be charged in the

2 same indictment as the initial § 924(c) charge.  Deal v. United States, 508 U.S. 129,

3 132‐33 (1993); see United States v. Pierce, 785 F.3d 832, 846 (2d Cir. 2015) (observing

4 that in Deal, “the Supreme Court clarified that a ‘second or subsequent

5 conviction’ can arise when a defendant is charged with multiple violations of

6 Section 924(c) in the same indictment or arising from the same proceedings,”

7 meaning that “[o]ne of the convictions is treated as the first conviction and the

8 others are treated as ‘second or subsequent’”).    A “second or subsequent”

9 conviction, however, may not be based on a single “unit of prosecution,” i.e.,

10 “[w]here the government links multiple firearms to a single crime,” United States

11 v. Lindsay, 985 F.2d 666, 674 (2d Cir. 1993), or where a defendant is in

12 “continuous possession of a firearm in furtherance of simultaneous predicate

13 offenses consisting of virtually the same conduct,” Wallace, 447 F.3d at 188

14 (quoting United States v. Finley, 245 F.3d 199, 207 (2d Cir. 2001)).

15 In support of his argument that the two convictions may have punished

16 simultaneous conduct, Simmons points to the fact that the § 924(c) charge

17 relating to the racketeering enterprise and conspiracy was linked to conduct

18 occurring between 2006 and 2013 while the § 924(c) charge relating to the
13

1 narcotics conspiracy was based on conduct that occurred between 2004 and

2 September 2011, resulting in a temporal overlap of some 5 years.  Simmons also

3 observes that the racketeering enterprise charged in Count One included as a

4 predicate act a narcotics distribution conspiracy, while the racketeering

5 conspiracy charged in Count Two alleged that the pattern of racketeering activity

6 included, among other criminal acts, “dealing in a controlled substance.”  

7 According to Simmons, since one of his § 924(c) convictions was based on Counts

8 One and Two, both of which included narcotics‐related predicate acts, he may

9 have been punished twice for the same conduct because his other § 924(c)

10 conviction was based on Count Twelve, which alleged a substantive narcotics

11 conspiracy.  It was therefore possible, he argues, that the jury convicted him of

12 two § 924(c) counts based on the same underlying criminal conduct.    We

13 conclude, however, that the two § 924(c) convictions were not multiplicitous and

14 identify no plain error in these circumstances.

15 The evidence showed that Simmons possessed (or aided and abetted the

16 possession of) multiple firearms on separate occasions.    Furthermore, in its

17 summation, the Government distinguished between the firearms involved in the

18 respective § 924(c) counts: the § 924(c) charge relating to the racketeering
14

1 enterprise and conspiracy was based on possession of the firearm discovered on

2 Simmons when he was arrested in January 2008, the firearm he passed along in

3 2009, and the firearm he possessed while out with a fellow Blood on Lander St;

4 the § 924(c) count based on possession of a firearm in connection with

5 participation in the narcotics conspiracy was based solely on the block guns that

were kept on Lander St.5 6     Thus, although these incidents may have occurred

7 within the same five‐year period—or even in the same month or year—the

8 evidence at trial, and the Government’s presentation of that evidence and

9 argument to the jury, demonstrated that the guns were neither linked “to a single

10 crime,” Lindsay, 985 F.2d at 674, nor based on the “continuous possession of a

11 firearm in furtherance of simultaneous predicate offenses consisting of virtually

the same conduct.” 12 6 Wallace, 447 F.3d at 188 (quoting Finley, 245 F.3d at 207).    

                                                            

5  It is conceivable that the racketeering‐related gun alleged to have been possessed by

Simmons on Lander St.—the same street where the block guns were kept—was one of

the block guns that formed the basis of the narcotics‐related § 924(c) charge.    There

were, however, two other guns that were also connected to the racketeering enterprise

and conspiracy, neither of which had any apparent connection to the block guns.  

6    We also note that the indictment alleged that the § 924(c) charge relating to the

racketeering enterprise and conspiracy was based on firearms that were used or

possessed “on occasions other than those described” in the § 924(c) charge relating to

the narcotics conspiracy.  App’x 277‐78.
15

1   Given the evidence that Simmons possessed multiple firearms on

2 separate occasions, we conclude that there was an ample basis for the jury to

3 convict Simmons of two separate violations of § 924(c).    See United States v.

4 Salameh, 261 F.3d 271, 279 (2d Cir. 2001) (finding concerns about multiplicitous      

5 § 924(c) convictions unfounded “given the separate, and separately culpable,

6 nature of defendants’ use and carriage of the [firearms]”); United States v.

7 Malpeso, 115 F.3d 155, 170 (2d Cir. 1997) (rejecting challenge to two § 924(c)

8 convictions where evidence “established that [defendant] carried guns on several

9 occasions” throughout charged conspiracy, leaving “no realistic possibility” that

10 the jury conviction on both counts was based on single event).  That there was no

11 jury instruction clarifying that the firearms subject of each § 924(c) charge must

12 have been possessed on separate occasions does not amount to plain error.  For

13 the same reasons, it was not plain error for the district court to find implicitly at

14 sentencing that the two § 924(c) convictions were based on separate conduct,

15 thereby subjecting Simmons to mandatory minimum, consecutive sentences

16 based on a “second or subsequent” § 924(c) conviction.  

17

18
16

1 CONCLUSION

2 We have considered all of Simmons’s remaining arguments with respect to

3 his sentencing and find them to be without merit.  For the reasons stated above

4 and in the accompanying summary order, the judgment of conviction is

5 AFFIRMED.