15-1453

United States v. Delgado

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

____________________

August Term, 2019

(Argued: April 28, 2020 Decided: August 18, 2020)

Docket No. 15-1453

____________________

UNITED STATES OF AMERICA,

Appellee,

v.

JONATHAN DELGADO

Defendant-Appellant. 1

____________________

Before: JACOBS, POOLER, and CARNEY, Circuit Judges.

Appeal from the judgment of conviction entered in the United States 

District Court for the Western District of New York (Richard J. Arcara, J.),

convicting Jonathan Delgado, after a jury trial, for conspiracy to violate the 

1 The Clerk of Court is directed to amend the caption as above.
2

Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 

1962(d), as well as narcotics-conspiracy and firearm-possession charges in 

connection with Delgado’s membership in the 10th Street Gang of Buffalo, New 

York. The underlying racketeering activity included Delgado’s participation in 

the double murder of Brandon MacDonald and Darinell Young in 2006. Delgado, 

who was seventeen years old when he participated in the murders, was 

sentenced to life imprisonment.

Delgado argues on appeal that the district court erred by (1) permitting the 

government to introduce into evidence a gun it seized from his home in 2012; (2) 

denying his motion for a mistrial based on an apparent Bruton violation; (3) 

denying defendants’ joint Batson challenge; (4) denying his requests for certain 

jury charges; and (5) failing to consider his age at the time of the MacDonald and 

Young murders. We reject his first four challenges but agree with the fifth. 

The district court imposed Delgado’s sentence without explicitly 

considering his age at the time of the murders. In doing so, it violated the 

principle recognized by the Supreme Court in Miller v. Alabama that “children are 

constitutionally different from adults for purposes of sentencing.” 567 U.S. 460, 

471 (2012). Those under the age of eighteen are different, Miller instructs, because 
3

the “distinctive attributes of youth diminish the penological justifications for 

imposing the harshest sentences on juvenile offenders, even when they commit 

terrible crimes.” Id. at 472. Accordingly, although we affirm Delgado’s 

conviction, we vacate his sentence and remand for resentencing, with 

instructions to consider the mitigating factors of youth as required by Miller.

Delgado was convicted alongside defendants-appellants Domenico 

Anastasio, Ismael Lopez, and Matthew Smith. We decide the appeal of Anastasio 

by separate opinion and the appeals of Smith and Lopez by summary order.

Affirmed in part, vacated and remanded in part.

____________________

SCOTT M. GREEN, Rochester, NY, for DefendantAppellant Jonathan Delgado.

MONICA J. RICHARDS, Assistant United States 

Attorney, for James P. Kennedy, Jr., United States 

Attorney for the Western District of New York, Buffalo, 

NY, for Appellee.

POOLER, Circuit Judge:

Jonathan Delgado appeals from the March 25, 2015 judgment of conviction 

entered in the United States District Court for the Western District of New York 

(Richard J. Arcara, J.), convicting him, after a jury trial, of conspiracy to violate 
4

the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 

1962(d), as well as narcotics-conspiracy and firearm-possession charges in 

connection with Delgado’s membership in the 10th Street Gang of Buffalo, New 

York. The underlying racketeering activity included Delgado’s participation in 

the double murder of Brandon MacDonald and Darinell Young in 2006.

Delgado argues on appeal that the district court erred by (1) permitting the 

government to introduce into evidence a gun it seized from his home in 2012; (2) 

denying his motion for a mistrial based on an apparent Bruton violation; (3) 

denying defendants’ joint Batson challenge; (4) denying his requests for certain 

jury charges; and (5) failing to consider his age at the time of the MacDonald and 

Young murders. We reject his first four challenges but agree with the fifth. 

Delgado, who was seventeen years old when he participated in the 

murders, was sentenced to life imprisonment. The district court imposed 

Delgado’s sentence without explicitly considering his age at the time of the 

murders. In doing so, it violated the principle recognized by the Supreme Court 

in Miller v. Alabama that “children are constitutionally different from adults for 

purposes of sentencing.” 567 U.S. 460, 471 (2012). Those under the age of 

eighteen are different, Miller instructs, because the “distinctive attributes of 
5

youth diminish the penological justifications for imposing the harshest sentences

on juvenile offenders, even when they commit terrible crimes.” Id. at 472.

Accordingly, although we affirm Delgado’s conviction, we vacate his sentence

and remand for resentencing, with instructions to consider the mitigating factors 

of youth as required by Miller.

Delgado was convicted alongside defendants-appellants Domenico 

Anastasio, Ismael Lopez, and Matthew Smith. We decide the appeal of Anastasio

by separate opinion and the appeals of Smith and Lopez by summary order.

BACKGROUND

I. Factual Background

The 10th Street Gang has existed in some form on Buffalo’s West Side since 

the 1980s. Like other street gangs, 10th Street enforced its narcotics enterprise

through violence. Members regularly planned and carried out shootings in 

response to actual, or perceived, disrespect. Other gangs operated near and 

sometimes within the 10th Street Gang territory, including the 7th Street Gang, a 

rival— and the Zolo Boys, an ally.

There was a semblance of hierarchy to the 10th Street organization. Senior

members were considered “shooters” who protected the territory and retaliated 
6

against the encroachment of rival gangs. Newer members, some as young as 

thirteen years old, were expected to “put in work,” meaning they had to perform 

certain criminal—and often violent— acts to increase their status.

On the afternoon of April 16, 2006, a car with 7th Street Gang members

drove up to and shot at Robert Sanabria, a 10th Street member and Delgado’s 

younger brother, while he was out walking to a neighborhood cookout with a 

large group of 10th Street members. A bullet landed in Sanabria’s stomach and 

left him injured on the sidewalk before he was taken away in an ambulance (he 

survived). Delgado soon arrived on the scene before checking in on Sanabria at

the hospital.

Meanwhile, a group of 10th Street members had congregated in an open 

area of the park next to where Sanabria was shot. As emotions heated up, the

group decided that retaliation was in order. The tensions escalated when the 

group confronted a young man and woman passing by. When someone

commented that the couple was affiliated with 7th Street, a few gang members 

ran up to them and started beating on the man, continuing to kick and punch 

him after he fell to the ground. The woman tried to provide cover as the gang 

members delivered additional blows.
7

Later that night, about a dozen 10th Street members moved from the park

to a nearby apartment. There, Delgado announced that the plan was to “shoot at 

[7th Street Gang members] because they had shot his brother,” and he told those 

present that they needed to find guns. Smith App’x at 2906. Several of those at 

the apartment then left to gather firearms. Upon returning, they piled guns on

top of a bed. Delgado brought two handguns: a .44 caliber and a .380 caliber.

Another gang member brought a sawed-down .22 rifle. Members of the Zolo 

Boys also showed up, bringing two more shotguns.

At some point, a senior 10th Street member dispatched a younger member 

to search the neighborhood for those affiliated with 7th Street. The 

reconnoitering member reported back that he saw 7th Street-affiliated people 

outside a home on 155 Pennsylvania Street. Back at the apartment, the eventual 

shooters took their preferred weapons. Delgado selected the .380 caliber 

handgun.

Two cars, one with four armed 10th Street members and the other with the 

Zolo Boys, drove toward the target home. The 10th Street driver did not want 

anyone shooting from his car, lest someone shoot at it, so the gunmen instead 

assembled in an alley where they covered their faces with bandanas and 
8

discussed how to carry out the shooting. One of the gunmen suggested that they

pose as drug dealers, but Delgado insisted on a direct approach.

The shooters ran up on 155 Pennsylvania and opened fire, spraying more 

than 50 bullets at the people gathered on and near the porch. Delgado killed 

Brandon MacDonald. Darinell Young was also killed, and four others were 

wounded. As it turned out, the casualties were innocent bystanders. The shooters 

absconded, eventually making their way back to the original apartment.

Continued bloodshed between the two gangs prompted a joint

investigation between the FBI and local authorities. The investigation 

encompassed physical surveillance, more than seven search warrants, video 

surveillance, controlled evidence purchases, and intelligence provided by 

confidential informants, who later played a prominent role in the government’s 

case against Delgado and the other codefendants.

Law enforcement eventually obtained medical and ballistics evidence 

linking MacDonald’s death to the bullet discharged from Delgado’s .380 caliber
9

handgun.2 On February 3, 2012, the FBI arrested Delgado at his home, seizing a 

small amount of marijuana and an AR-15 .223 Bushmaster rifle (“AR-15”).

II. Procedural History

A federal grand jury sitting in the United States District Court for the 

Western District of New York returned a fourth superseding indictment charging 

Delgado and twenty-eight others with RICO conspiracy in the form of drug 

trafficking, assault, murder, intimidation, and weapons possession related to

their membership in the 10th Street Gang. The indictment identified 124 overt 

acts committed in furtherance of the RICO conspiracy. Delgado specifically was 

charged with: one count of conspiracy to violate RICO, in violation of 18 U.S.C. 

§§ 1962(d) and 1963(d); one count of conspiracy to possess controlled substances 

with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), 

and 841(b)(1)(D); and one count of possession of a firearm in furtherance of a 

drug trafficking crime, in violation of 18 U.S.C. §§ 924 (c)(1)(A)(i) and 2. Delgado 

was also charged under one of the special sentencing factors of the RICO 

conspiracy with second-degree murder under New York state law for the 

2 Unlike his other codefendants, Delgado does not argue on appeal that there was 

insufficient evidence to support his convictions. 
10

MacDonald and Young killings. The vast majority of the charged defendants 

entered guilty pleas. Delgado and three other codefendants proceeded to trial. 

On July 25, 2014, Delgado filed a motion in limine to preclude the 

government from introducing testimony concerning the AR-15 that was seized 

from his home at the time of his arrest. Delgado argued that the AR-15 was 

irrelevant to the RICO conspiracy because ATF records demonstrated it was 

lawfully purchased in March 2011 and it was not seized by law enforcement until 

Delgado’s arrest in 2012. The district court denied the motion, reasoning that 

Delgado’s purchase and possession of the AR-15 was relevant to the charged 

RICO conspiracy because “[g]uns are part of what’s been alleged here.” App’x at 

314.

During jury selection, the government moved to strike two of the three 

Hispanic Americans among the prospective jurors. The district court considered 

a joint Batson challenge from defendants but ultimately concluded that the 

government’s race-neutral basis for its use of preemptory strikes was credible.

On July 30, 2014, Delgado’s trial began. The government called fifty-five

witnesses. As relevant to this appeal, Joshua Keats, a New York State Police 

Investigator, testified as to his post-arrest interview of one of Delgado’s 
11

codefendants, Anastasio. Keats testified that Anastasio told him he witnessed the 

shooting of Sanabria and was present at the apartment where the retaliation was 

planned. Keats also testified that Anastasio told him that at the apartment 

“everyone was talking about retaliating for what happened to [Sanabria],” and 

that Anastasio said “he knew something was going to happen because of the 

way everyone was talking; that they had to do something about [Sanabria]

getting shot in front of Sam’s store earlier in the day.” App’x at 324. At a break in 

the proceedings, Delgado moved for a mistrial based on this testimony. He 

objected to Keats’s use of “everyone,” when it was apparent that Delgado was 

one of the people at the apartment. The district court summarily denied the 

motion.

At the close of the government’s proof, Delgado moved for a judgment of 

acquittal under Federal Rule of Criminal Procedure 29(a) based, in part, on a 

claim that the government had not demonstrated that the gun possession charge

was committed within the five-year statute of limitations. The district court 

denied the motion. Later, at the jury charge conference, Delgado again requested, 

without success, an instruction on the statute of limitations for the gun 
12

possession. The district court noted that it had already rejected the statute of 

limitations defense when it denied Delgado’s Rule 29 motion. 

Subsequently, Delgado requested that the district court instruct the jury on 

the affirmative defense of extreme emotional disturbance, which, in some 

circumstances, is available to those accused of second-degree murder under New 

York state law. The district court declined to give this charge.

After a five-week long trial, the jury returned guilty verdicts on all counts

for the four codefendants. On March 25, 2015, Delgado appeared for his

sentencing. Based on its calculation under the Sentencing Guidelines, the 

Probation Office recommended that Delgado serve a custodial term of life 

imprisonment. Before announcing Delgado’s sentence, the district court 

discussed its view that the gang’s violent activities had destroyed Buffalo’s West 

Side community:

I'm glad I had a chance to hear the evidence in the trial because it 

really clearly gave me a picture of what was going on. Many times, 

when we are involved in sentencing people, the judge hears maybe a 

plea or a limited information about a particular criminal activity, but 

here, I had the firsthand view of what went on there and how horrible 

those events were for a long period of time; that went on for such a 

long time it's hard to believe that it was allowed to go on as long as it 

was.
13

One of the most difficult things a judge does is imposing sentences on 

individuals. It's certainly something I don't enjoy and if there ever 

comes a point where I do enjoy it, I think that's the day that I'll resign 

as a judge. It's a difficult part of being a judge is to impose severe 

sentences or any sentences. But in this situation, obviously, the 

sentencing range that the guidelines have calculated is the most 

severe.

App’x at 446-47. The district court then recounted the events that led up to the 

MacDonald and Young murders and described other violent crimes attributed to 

Delgado in the Presentence Investigation Report. The court stated that it had

reviewed the submissions and considered the sentencing factors set forth in 18 

U.S.C. § 3553(a). With respect to Delgado’s character, the district court explained:

Defendant appears to be undeterred by the sentence of probation he 

receive[d] in 2005 and continued his participation into the criminal 

behavior. He sold drugs, possessed multiple firearms and I don't feel 

he had any comprehension of the long-term impact and the collateral 

damage that these crimes have and will continue to have on the 

community, the families. The social implications of violence are 

certainly complex and represented a major concern of the citizens. I 

feel the sentence imposed under these circumstances is a fair and 

reasonable sentence. 

App’x at 451-52.
14

Ultimately, the district court sentenced Delgado to concurrent terms of life 

imprisonment on the RICO conspiracy and narcotics-conspiracy counts.3

This appeal timely followed.

DISCUSSION

Delgado argues that (1) the AR-15 was inadmissible because there was no 

evidence that he used it in furtherance of the charged conspiracies; (2) the district 

court violated Bruton by admitting his codefendant’s statement to police that 

“everyone” at the apartment was “talking” about retaliation; (3) the government 

impermissibly struck a Hispanic member of the jury pool on the basis of race; (4) 

the jury should have been instructed on the defense of extreme emotional 

disturbance and the statute of limitations for the Section 924(c) charge; and (5) 

the district court violated the Eighth Amendment by failing to consider his age 

before imposing a life sentence.

3 The court also imposed a consecutive five-year sentence for the weaponspossession conviction. 
15

I. Admission of the AR-15

We review a district court’s decision to admit evidence for abuse of 

discretion, “recognizing that district courts enjoy broad discretion over the 

admission of evidence.” United States v. Barret, 848 F.3d 524, 531 (2d Cir. 2017) 

(internal quotation marks, brackets, and citation omitted). “Irrelevant evidence is

not admissible.” Fed. R. Evid. 402. A district court “may exclude relevant 

evidence if its probative value is substantially outweighed by a danger of . . . 

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. A district 

court's decision to admit evidence is subject to harmless error analysis. Fed. R.

Crim. P. 52(a); United States v. Madori, 419 F.3d 159, 168 (2d Cir. 2005).

Delgado argues that the district court abused its discretion in admitting 

the AR-15 because there was no other evidence establishing that Delgado used 

the assault rifle in furtherance of the charged conspiracies, making its possession 

irrelevant. Delgado also argues that any possible probity was outweighed by 

undue prejudice under Rule 403 because the admission of a lawfully purchased 

assault rifle without a connection to the charged conspiracies “leaves a high 

probability that the jury would misuse its admission to bolster the testimonies of 
16

cooperating witnesses,” who testified about Delgado’s possession of other guns. 

Appellant’s Br. at 28.

We disagree that the AR-15 was offered for an improper purpose.4 In 

context, Delgado’s purchase and possession of an assault rifle was, at the very 

least, relevant to the RICO conspiracy count. The fourth superseding indictment 

charges in its general allegations that “[i]n order to enforce the authority of the 

gang, 10th Street gang members maintained a ready supply of firearms, 

including handguns, shotguns, and semi-automatic rifles. Weapons were to be

sold to others, or otherwise discarded, after having been used to commit acts of 

violence on behalf of the organization.” App’x at 67. The government introduced 

evidence at trial and argued in its theory of the case that 10th Street members 

kept a ready stock of guns as part of the security function of the enterprise. 

Witnesses testified that members routinely gave firearms to one another by 

hiding guns in a communal stash at the park and had knowledge of other 

members’ firearms. There was testimony demonstrating that other gang 

4 Because we conclude that the testimony was offered for a proper purpose, we 

reject Delgado’s argument that the testimony was only offered to show criminal 

propensity in violation of Federal Rule 404(b) of Evidence.
17

members were aware that Delgado purchased and owned the AR-15. Delgado’s 

possession of the assault rifle was relevant to the allegations of the RICO 

conspiracy that charged defendants with using, brandishing, and exchanging

firearms as part of the illicit enterprise.

We also disagree with Delgado’s argument that his possession of the AR15 had no connection to the charged conspiracy because “[t]here was no 

testimony presented at trial to indicate [Delgado] participated in the conspiracies 

contained in the Indictment after June, 2007.” Appellant’s Reply. Br. at 2. As 

alleged in Count 1 of the indictment, “beginning in or about 2000 and continuing 

to in or about 2011,” Delgado was part of a gang that sold narcotics and 

protected its territory by using, carrying, and possessing firearms. App’x at 299.

Delgado’s argument fails because there was no evidence that he ever withdrew 

from the conspiracy and ATF records confirm that he purchased the AR-15 in 

early 2011, which, as a temporal matter, was within the time period of the alleged 

RICO conspiracy.

We find no abuse of discretion in the district court’s determination that the 

probative value of this evidence is high and that it tends to illuminate the issues 

in the case rather than mislead the jury. As noted above, a Rule 403 challenge is 
18

“highly deferential” to the district court. United States v. Coppola, 671 F.3d 220, 

244 (2d Cir. 2012). There was nothing unduly prejudicial about the AR-15 simply 

because it also happened to bolster witnesses’ testimony about other firearms. 

Delgado does not cite to any authority that supports excluding evidence on this 

ground. 

Even assuming arguendo there was error, it would be harmless. We 

consider several factors in determining whether an evidentiary error is not 

harmless and thus requiring a new trial:

In assessing the wrongly admitted testimony's importance, we 

consider such factors as whether the testimony bore on an issue that 

is plainly critical to the jury's decision, whether that testimony was 

material to the establishment of the critical fact or whether it was 

instead corroborated and cumulative, and whether the wrongly 

admitted evidence was emphasized in arguments to the jury.

Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000) (citations and internal 

quotation marks omitted).

In light of the strength of the government’s case, our review of the record 

demonstrates that the AR-15 was “unimportant in relation to everything else the 

jury considered on the issue[s] in question.” Cameron v. City of New York, 598 F.3d

50, 61 (2d Cir. 2010) (internal quotation marks and citation omitted). In its 

summation, the government argued (1) that Delgado’s possession of the AR-15 
19

was evidence, on its own, that that he was guilty of the Section 924(c) charge; and 

(2) that it was probative of his guilt concerning the narcotics conspiracy and 

RICO conspiracy offenses, because there was testimony that he displayed the 

firearm to other gang members.

Delgado’s possession of the assault rifle was plainly not essential to either 

of the conspiracy counts, which charged a broader scheme. Delgado’s only 

colorable argument for a new trial is if the AR-15 was used by the jury as the sole 

basis for its guilty verdict on the Section 924(c) charge. But the AR-15 evidence

was not critical to the Section 924(c) count either. In the few instances when the 

government referenced the AR-15 in its summation, it did so in the context of 

Delgado possessing other firearms—at one point arguing that the jury “heard at 

least about half a dozen guns possessed by Delgado, himself, to include the [AR15].” Smith App’x at 4990.

A raft of government witnesses placed a gun in Delgado’s hands during 

the conspiracy—including during the murders of MacDonald and Young—any 

of which could have formed the basis of the jury’s guilty verdict on the Section 

924(c) count. See United States v. McCallum, 584 F.3d 471, 478 (2009) (“We have 

repeatedly held that the strength of the government’s case is the most critical 
20

factor in assessing whether error was harmless.”). In sum, vacatur would not be 

warranted even if the district court erred because there was overwhelming 

evidence presented at trial concerning Delgado’s possession of firearms.

II. Bruton

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that 

a defendant is deprived of his rights under the Confrontation Clause when a 

codefendant’s confession implicating the defendant is admitted at their joint trial, 

irrespective of whether the court instructs the jury that the confession can only be 

used against the defendant who made it. Our Court later held that a

“defendant's Bruton rights [are] violated . . . only if the statement, standing alone, 

would clearly inculpate him without [the] introduction of further independent 

evidence.” United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir. 1985). That 

principle was enunciated by the Supreme Court in Richardson v. Marsh, which

also held that Bruton can be complied with by redacting the statement so that it 

does not expressly implicate the codefendant as an accomplice. 481 U.S. 200, 209 

(1987).

Delgado argues that New York State Police Investigator Keats’s testimony

about his post-arrest interview of Anastasio impermissibly inculpated Delgado, 
21

thereby denying his Sixth Amendment right to confront the witnesses against 

him because Anastasio was a nontestifying codefendant.

Delgado’s reliance on Bruton is inapt. Anastasio neither confessed to a

crime nor named anyone as a participant in a crime. The statement that 

“everyone was talking about retaliating for what happened to [Sanabria]” was 

not a confession, nor did it, by itself, implicate any of the codefendants in a 

crime. App’x at 324. The statements required further evidence to link Delgado’s 

involvement to the murders. There was nothing facially incriminating with gang 

members merely “talking” about retaliation at the apartment, which Delgado’s 

counsel essentially acknowledged when he moved for the mistrial on the 

grounds that these statements “couple[d] . . . with the testimony” that was 

anticipated in the case would inculpate Delgado. See App’x at 326. Finally, the 

statements were already generalized and thus did not require redaction. For 

these reasons, we conclude that Delgado’s right to confrontation was not 

jeopardized by Keats’s testimony.

III. Batson Challenge

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court fashioned a 

three-part test that trial courts are to use when considering whether a 
22

peremptory strike of a jury panelist is based on an impermissibly discriminatory 

motive. A trial court must:

(1) decide whether the defendant has made a prima facie showing that 

the prosecutor has exercised a peremptory strike on the basis of race; 

(2) if so, decide whether the prosecutor has satisfied the burden of 

coming forward with a race neutral explanation for striking the 

potential juror; and, if so, then must

(3) make a determination whether the defendant has carried his 

burden of proving purposeful discrimination.

Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000). Ordinarily, at the third step, “the 

decisive question will be whether counsel’s race-neutral explanation for a 

peremptory challenge should be believed.” McKinney v. Artuz, 326 F.3d 87, 98 (2d

Cir. 2003) (internal quotation marks and citation omitted). Deference will be 

given to the trial court findings on the issue of discriminatory intent and will be 

set aside only if the determination is clearly erroneous. Hernandez v. New York,

500 U.S. 352, 365 (1991).

The prosecutor struck prospective juror #41, who is Hispanic, on the 

grounds that she did not like to read the news because of its ugliness, and that 

she was heavily involved with her church. Delgado argues that this justification 

was pretextual because other jurors said the same thing and were not stricken.
23

Assuming, as the district court did, that Delgado made a prima facie case 

at the first step, the court did not clearly err in rejecting the Batson claim. 

Delgado’s argument is belied by the record; the prosecutor struck other potential

jurors who claimed to not read the news. Moreover, none of them described their 

news-avoidance in quite the same way as the stricken juror, who said she did not 

read the news “because there [is] too much ugliness in the now-a-day world.” 

Smith App’x at 1490. In the context of a criminal trial involving multiple 

murders, shootings, robberies and drug sales, excluding a juror on this basis does 

not seem so far-fetched. And, as the government points out, one of the other

Hispanic Americans in the venire eventually served on the jury panel. On this 

record and considering the deference we accord to the district court in credibility 

determinations, we conclude that the court did not clearly err in rejecting

defendants’ joint Batson claim.

IV. Jury Charges

We review jury instructions de novo but reverse only if we determine that 

the instructions, taken as a whole, prejudiced the defendant. United States v.

Finazzo, 850 F.3d 94, 105 (2d Cir. 2017). “The defendant bears the burden of 

showing that the requested instruction accurately represented the law in every 
24

respect and that, viewing as a whole the charge actually given, he was 

prejudiced.” United States v. Rutigliano, 790 F.3d 389, 401 (2d Cir. 2015) (internal

quotation marks and citation omitted).

A. Extreme Emotional Disturbance

Delgado argues that the district court erred by refusing his request to 

charge the jury with the defense of extreme emotional disturbance.

Under New York law, extreme emotional disturbance is a partial affirmative 

defense to murder in the second degree. See N.Y. Penal Law § 125.25(1)(a)(i). It is 

available when “[t]he defendant acted under the influence

of extreme emotional disturbance for which there was a reasonable explanation 

or excuse.” Id.; see also People v. White, 79 N.Y.2d 900, 902-04 (1992). It requires 

evidence that the defendant suffered from “a mental infirmity not rising to the 

level of insanity at the time of the homicide, typically manifested by a loss of selfcontrol.” People v. Roche, 98 N.Y.2d 70, 75 (2002).

Delgado argues that the emotional trauma he suffered from learning that 

his younger brother was shot supported such a jury instruction. According to 

Delgado, he “came to the scene of the shooting and learned that his brother was 

shot by rival gang members. Throughout the day and into the evening, the 
25

Defendant was with individuals who demanded retaliation for his brother's 

shooting.” Appellant’s Br. at 39-40. This, in turn, made him “angry” and he 

“cried and sought revenge.” Id.

Yet Delgado has failed to summon any evidence that lends support for the 

instruction besides the bare assertion that he was angry and vengeful following 

the shooting of his brother. See Roche, 98 N.Y.2d at 76 (“In the absence of the 

requisite proof, an extreme emotional disturbance charge should not be given 

because it would invite the jury to engage in impermissible speculation 

concerning defendant's state of mind at the time of the homicide.”). New York 

law is clear that anger alone does not amount to a mental infirmity or the loss of 

self-control associated with the defense of extreme emotional disturbance. People

v. Walker, 64 N.Y.2d 741, 743 (1984). Accordingly, we conclude that the district

court was correct to reject the requested jury charge.

B. Statute of Limitations

Delgado also argues that the district court erred by denying his request to

“charge the jury regarding Statute of Limitations and/or to make a finding
26

concerning when the jury believed the Defendant was last in possession of a 

firearm in furtherance of drug trafficking.” Appellant’s Br. at 40. Since the federal 

criminal code provides a five-year statute of limitations for noncapital offenses, 

Delgado argues that the district court should have given a statute-of-limitations

instruction for the firearm possession count under Section 924(c). See 18 U.S.C. § 

3282(a). As noted above, the court summarily denied Delgado’s request for the 

jury charge, citing to its earlier Rule 29 ruling that there was sufficient evidence 

for the jury to find that Delgado violated Section 924(c) within the five-year

statute-of-limitations. See Fed. R. Crim. P. 29(a) (providing that “the court on the 

defendant's motion must enter a judgment of acquittal of any offense for which 

the evidence is insufficient to sustain a conviction.”).

The court thus mistakenly borrowed that stringent standard for use in

Delgado’s request for a particular jury charge, which in part may be justified “on 

any defense theory for which a foundation existed in the record.” United States v. 

Caplan, 703, F.3d 46, 87 (2d Cir. 2012). In other words, that the jury could find that 

Delgado violated Section 924(c) within the statute-of-limitations period did not

foreclose the opposite finding. 
27

In any event, the outcome was correct, albeit for a different reason. There 

was no way for the jury to convict Delgado on the Section 924(c) count based on 

conduct outside the statute of limitations under our Court’s precedent. Even if 

we were to assume that the jury believed Delgado’s argument that his possession 

of the AR-15 occurred outside the temporal scope of the conspiracy, and voted to 

convict, for example, based only on his 2006 role in the MacDonald and Young 

murders, that violation of Section 924(c) was a “continuing offense” that 

“continued through the life” of the 10th Street Gang’s RICO conspiracy. United 

States v. Payne, 591 F.3d 46, 69 (2d Cir. 2010) (“Conspiracy is a continuing offense. 

. . . When a defendant is convicted of violating § 924(c)(1)(A) for using or 

carrying a firearm during and in relation to a crime that is a continuing offense, 

the § 924(c)(1) crime itself is a continuing offense.”). 

Delgado cites United States v. Praddy, which carves out an exception to the

rule that possession is presumed to continue until the underlying conspiracy 

runs its course. 725 F.3d 147, 157-59 (2d Cir. 2013). But his reliance on Praddy is 

misplaced. In that case, law enforcement had actually seized the weapon in 

question six years before the defendant was charged with its possession. See 

Praddy, 725 F.3d at 159 (stating “it would defy all reason to give effect to that 
28

presumption after such time as the gun has in fact been seized by law 

enforcement authorities.”). That factual distinction is not present here: law 

enforcement did not seize any of Delgado’s weapons outside the statute of

limitations. And, crucially, as noted above, there was no evidence showing that 

Delgado ever withdrew from the conspiracy, so his participation is presumed to 

extend through 2011. See United States v. Yannotti, 541 F.3d 112, 123 (2d Cir. 2008) 

(“[O]nce the government meets its burden of proof to establish a RICO 

conspiracy, it is entitled to a presumption that the conspiracy continued until the 

defendant demonstrates otherwise.” (internal quotation marks, brackets, and 

citation omitted)). Accordingly, the jury could not have found that any violation 

of Section 924(c) ceased in 2006, obviating the need for the statute-of-limitations

instruction.

V. Delgado’s Sentencing

Delgado, who was seventeen at the time of the MacDonald and Young 

murders, argues that the district court violated the Eighth Amendment by failing 

to give the requisite weight to his youth before sentencing him to life 

imprisonment. In 2012, the Supreme Court held that mandatory life-withoutparole sentences for juvenile offenders categorically violated the Eighth 
29

Amendment’s prohibition on cruel and unusual punishment. Miller v. Alabama, 

567 U.S. 460, 465 (2012). Miller advanced the principle that “children are 

constitutionally different from adults for purposes of sentencing.” Id. at 471. But

contrary to the government’s argument on appeal, Miller is not limited to

mandatory sentencing schemes. Although Miller focused on state statutory 

schemes that prescribed mandatory life sentences for juveniles, it recognized 

that “about 15% of all juvenile life-without-parole sentences [then being

served]” were nonmandatory sentences imposed at the discretion of a judge or 

jury. Id. at 483 n.10. Rather than include those sentences in the broader 

categorical ban, the Court concluded only “that a judge or jury must have the

opportunity to consider mitigating circumstances before imposing the harshest

possible penalty for juveniles.” Id. at 489.5

5 Miller listed some of the “hallmark features” of juvenile defendants, including: 

(1) a lack of maturity that leads to, among other things, “heedless risk-taking;”

(2) a lack of “ability to extricate from horrific-crime producing settings;” (3) an 

incompetence of youth in dealing with law enforcement; and (4) a juvenile’s 

potential for rehabilitation. Id. at 477–78. These “distinctive attributes of youth 

diminish the penological justification for imposing the harshest sentences on 

juvenile offenders, even when they commit terrible crimes.” Id. at 472.
30

In 2016, after Delgado’s sentencing, the Supreme Court issued Montgomery

v. Louisiana, 136 S. Ct. 718 (2016), which provided additional guidance about the 

proper application of Miller. Montgomery explains that Miller has both

substantive and procedural components. As a matter of substantive 

constitutional law, Montgomery describes the pre-Miller world as a place where

“every juvenile convicted of a homicide offense could be sentenced to life 

without parole.” Id. at 734. But, after Miller, the Court noted that “it will be the 

rare juvenile offender who can receive that same sentence.” Id. Montgomery

stresses that a life-without-parole sentence is permissible only for “the rarest of 

juvenile offenders”—specifically, “those whose crimes reflect permanent 

incorrigibility” and “irreparable corruption.” Id.

Montgomery also discusses Miller’s “procedural component”—in that Miller

requires the trial court “to consider a juvenile offender's youth and attendant 

characteristics before determining that life without parole is a proportionate 

sentence.” Id. A sentencing court’s consideration of these factors, according to 

Montgomery, “gives effect to Miller’s substantive holding that life without parole 

is an excessive sentence for children whose crimes reflect transient immaturity.”

Id. at 735.
31

Since there is no parole in the federal system, Delgado’s sentence is 

effectively the same as a life-without-parole sentence in state court systems. See

Romano v. Luther, 816 F.2d 832, 837 (2d Cir. 1987) (noting that the Sentencing

Reform Act of 1984 eliminated parole). And, under Supreme Court precedent, 

Delgado could be sentenced to life-without-parole as a juvenile only based on his 

participation in the MacDonald and Young murders under the RICO conspiracy

count, and not on the narcotics conspiracy count alone. See Graham v. Florida, 560 

U.S. 48, 75 (2010) (holding that life-without-parole sentences for juveniles 

convicted of nonhomicide offenses are unconstitutional). 

While Delgado’s sentence was not mandatory6 and thus does not fall 

under the categorical ban of Miller, his sentence was nonetheless improper. The 

district court did not reference Delgado’s age at all, much less grapple with it.

Even though the district court noted that it considered all of the Section 3553(a) 

6 Unlike the other codefendants, Delgado was not charged with the murders 

pursuant to the Violent Crimes in Aid of Racketeering (“VCAR”) statute. VCAR

prohibits the commission of certain violent crimes “in violation of the laws of any 

State or the United States,” including murder, “for the purpose of gaining 

entrance to or maintaining or increasing position in an enterprise engaged in 

racketeering activity.” 18 U.S.C. § 1959(a). VCAR-murder carries a mandatory 

life sentence. 18 U.S.C. § 1959(a)(1).
32

factors, which includes age in one of its policy statements, see U.S.S.G. § 5H1.1, a 

mere passing reference to Section 3553(a) is not enough to satisfy Miller’s 

constitutional mandate that reaches beyond what is set out in the Sentencing 

Guidelines.

Delgado’s sentencing hearing does not indicate that there was deliberate 

consideration of his character as a juvenile, a constitutionally distinct class of 

defendants. Miller requires the district court to undertake additional reflection on 

the special social, psychological, and biological factors attributable to youth, and 

such reflection is absent from Delgado’s sentencing hearing transcript. To be 

sure, we have no doubt that Judge Arcara knew the ages of the defendants when 

he sentenced them, along with much else that commands the attention of a 

sentencing judge. The sentencing transcript here is thorough and thoughtful; but 

Miller requires a more specific consideration in this case; and on resentencing, the 

court will have an opportunity to consider subsequent events, which may or may 

not counsel a lesser sentence, but that may be of considerable impact given the 

five years intervening since the original sentencing.

Accordingly, we vacate and remand for resentencing. On remand, the 

district court must consider the mitigating factors of youth as required by Miller
33

before it can determine that the most severe sentence for juvenile defendants—

life imprisonment without the possibility of parole—is a proportionate sentence.

CONCLUSION

For the foregoing reasons, we affirm Delgado’s conviction but vacate and 

remand for resentencing consistent with this opinion.