IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30256

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

DELOYD JONES, also known as Puggy Jones; BYRON JONES, also known 

as Big Baby Jones; SIDNEY PATTERSON, also known as Duda Man 

Patterson, 

 Defendants – Appellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

Before SMITH, WIENER, and ELROD, Circuit Judges.

PER CURIAM:

Appellants were convicted of a series of racketeering, drug, and firearm 

offenses—including several offenses under 18 U.S.C. § 924—in connection with 

their activities as members of a New Orleans gang. While this appeal was 

pending, the Supreme Court decided United States v. Davis, 139 S. Ct. 2319

(2019), which held that the residual clause of § 924(c) is unconstitutionally 

vague. Appellants now seek vacatur of their § 924 convictions. We VACATE 

the challenged convictions and REMAND.

United States Court of Appeals

Fifth Circuit

FILED

August 12, 2019

Lyle W. Cayce

Clerk

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I.

Appellants Deloyd Jones, Byron Jones, and Sidney Patterson were 

convicted of racketeering, drug, and firearm offenses arising out of their 

membership in the New Orleans gang “Ride or Die.” Among these were several 

convictions under 18 U.S.C. § 924. For each § 924 offense, the indictment 

charged a Racketeer Influenced and Corrupt Organizations Act (RICO)

conspiracy—Count 1 in the indictment—as a predicate crime of violence, and 

a controlled-substance conspiracy—Count 2 in the indictment—as a predicate 

drug trafficking crime. The verdict form did not require the jury to specify 

which predicate offense or offenses it relied upon in convicting Appellants of

the § 924 offenses.

On appeal, we reversed four of the convictions for insufficient evidence, 

affirmed the remaining convictions, and remanded for resentencing.1 United 

 

1 The convictions relevant to this appeal and the sentences the district court imposed 

on remand are as follows:

Deloyd Jones

• Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.

• Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841 

and 846 – life imprisonment.

• Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 240 months.

• Count 16 – Causing death through the use of a firearm under 18 U.S.C. § 924(j) 

– life imprisonment.

• Count 18 – Use and carrying of a firearm during and in relation to a crime of 

violence and a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) – 120 months.

• Count 20 – Causing death through the use of a firearm under 18 U.S.C. § 924(j) 

– life imprisonment.

Byron Jones

• Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.

• Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841 

and 846 – 235 months.

• Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 235 months.

• Count 6 – Causing death through the use of a firearm under 18 U.S.C. § 924(j) –

235 months.

• Count 8 – Use and carrying of a firearm during and in relation to a crime of 

violence and a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) – 120 months.

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States v. Jones, 873 F.3d 482, 500 (5th Cir. 2017). Appellants appeal a second 

time. In their briefs, they argue that their § 924 convictions are 

unconstitutional under Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and our 

decision in United States v. Davis, 903 F.3d 483 (5th Cir. 2018). When 

Appellants filed their briefs, Davis was still pending before the Supreme Court. 

After the oral argument in this case, the Supreme Court issued its opinion in 

Davis, which affirmed our decision on the relevant issue. 139 S. Ct. at 2336. 

Because both Davis decisions were issued after Appellants’ resentencings, they 

did not raise this issue in their previous appeal or in the district court.

II.

In Sessions v. Dimaya, the Supreme Court invalidated the residual 

clause of 18 U.S.C. § 16(b) as unconstitutionally vague. 138 S. Ct. at 1223. 

Months later, in United States v. Davis, we relied on Dimaya to hold that the 

identically-phrased residual clause of 18 U.S.C. § 924(c) is unconstitutionally 

vague as well. 903 F.3d at 486. The Supreme Court agreed and affirmed our 

holding in that regard. Davis, 139 S. Ct. at 2336.

The parties agreed in their briefs that under Dimaya and our decision in 

Davis, RICO conspiracy is not a § 924(c) crime of violence. In a Federal Rule 

of Appellate Procedure 28(j) letter, the government acknowledged that the 

same is true under the Supreme Court’s Davis decision. See Gov’t’s Fed. R. 

App. P. 28(j) Letter (June 26, 2019). Because the jury in Appellants’ case may 

have based Appellants’ § 924 convictions on the now-invalid RICO conspiracy 

 

Sidney Patterson

• Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.

• Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841 

and 846 – life imprisonment.

• Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 240 months.

• Count 20 – Causing death through the use of a firearm under 18 U.S.C. § 924(j) 

– life imprisonment.

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predicate, Appellants contend that each of those convictions is 

unconstitutional.2 Appellants advance two alternative arguments in support 

of their position: (1) permitting § 924 convictions predicated on RICO 

conspiracy is structural error requiring automatic reversal; and (2) the § 924 

convictions should be reversed under plain error review.

A.

Structural error is constitutional error that “‘affect[s] the framework 

within which the trial proceeds,’ rather than being ‘simply an error in the trial 

process itself.’” Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) 

(alteration in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 

(1991)). If an error is structural, it is not harmless beyond a reasonable doubt, 

and it warrants automatic reversal. See id.

Structural error does not occur when a jury rendering a general verdict 

“was instructed on alternative theories of guilt and may have relied on an 

invalid one.” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008); accord United States 

v. Skilling, 638 F.3d 480, 481 (5th Cir. 2011). That is precisely what occurred 

here: the jury was given two theories of guilt for the § 924 offenses—a crime of 

violence predicate and a drug trafficking predicate—and it may have relied on 

the invalid crime of violence predicate to the exclusion of or in addition to the 

valid drug trafficking predicate. Thus, under Hedgpeth, plain error review 

applies. See United States v. Flores, 2018 WL 2709855, at *6–7 (D. Nev. June 

5, 2018) (holding that inclusion of invalid § 924(c) crime of violence predicate 

in jury instructions was not structural error where jury was also given valid 

drug trafficking predicate); see also United States v. Percel, 553 F.3d 903, 908–

09 (5th Cir. 2008) (“Generally, incorrect jury instructions are not considered 

 

2 Specifically, Deloyd Jones challenges his Count 3, 16, 18, and 20 convictions; Byron 

Jones challenges his Count 3, 6, and 8 convictions; and Patterson challenges his Count 3 and 

20 convictions.

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structural errors.”); Jimenez v. Wood Cty., 660 F.3d 841, 845 (5th Cir. 2011) 

(en banc) (“Where a proper objection is not made, . . . our review of a jury 

instruction challenge is limited to review for plain error.”).

Moreover, we recently applied plain error review under circumstances 

similar to Appellants’: the appellant was convicted of a firearm offense under 

§ 924(c) based on a predicate crime of violence that the parties agreed was 

invalid in light of our decision in Davis. United States v. Lewis, 907 F.3d 891, 

893–94 (5th Cir. 2018), cert. denied, No. 18-989, 2019 WL 358452 (June 28, 

2019). We have also applied plain error review in the analogous context of 

Johnson3 and Dimaya errors. E.g., United States v. Fuentes, 906 F.3d 322, 

324–25 (5th Cir. 2018) (Johnson error); United States v. Rubio-Sorto, 760 F. 

App’x 258, 259–60 (5th Cir. 2019) (Dimaya error); see also Shabazz v. United 

States, 923 F.3d 82, 84 (2d Cir. 2019) (concluding that Johnson error in 

sentencing was not structural). We likewise hold that the Davis error in this 

case is not structural.

B.

Appellants next argue that even if the error here is not structural, we

must reverse their convictions under plain error review.4 Plain error review 

consists of four prongs: (1) there must be an error; (2) the error must be “clear 

or obvious, rather than subject to reasonable dispute”; (3) “the error must have 

affected the appellant’s substantial rights, which in the ordinary case means 

he must demonstrate that it ‘affected the outcome of the district court 

proceedings’”; and (4) the court must decide in its discretion to correct the error 

 

3 See Johnson v. United States, 135 S. Ct. 2551 (2015).

4 In the alternative, Appellants submit that de novo review is appropriate because 

their arguments were foreclosed in the Fifth Circuit at the time of their trial and initial 

appeal. However, as the government points out and Appellants acknowledge, we “may review 

a claim raised for the first time on appeal, even when based on an intervening Supreme Court 

decision, only for plain error.” United States v. Fernandez, 559 F.3d 303, 316 (5th Cir. 2009).

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because it “seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009)

(alteration in original) (quoting United States v. Olano, 507 U.S. 725, 734, 736 

(1993)).

The government concedes that prong one of the plain error review 

framework is satisfied here because, under both Davis decisions, it was error 

to permit the jury to convict Appellants under § 924 based on RICO conspiracy 

as a crime of violence. The government also concedes prongs two and four: that 

the error is plain because both Davis opinions were issued while this appeal 

was pending, and that, if the error affected Appellants’ substantial rights, “the 

failure to remedy the mistake would be manifestly unfair.”

The government is correct to concede these points. In Davis, we held 

that Hobbs Act conspiracy was not a crime of violence because it did “not 

necessarily require proof that a defendant used, attempted to use, or 

threatened to use force”—instead, “conspiracy to commit an offense is merely 

an agreement to commit an offense.” 903 F.3d at 485. The Supreme Court’s 

Davis opinion left this reasoning intact. 139 S. Ct. at 2336 (vacating only our

decision not to vacate the appellants’ sentences on all counts). Similarly, RICO 

conspiracy only requires that (1) “two or more people agreed to commit a 

substantive RICO offense”; and (2) “the defendant knew of and agreed to the 

overall objective of the RICO offense.” Jones, 873 F.3d at 489. Accordingly, 

RICO conspiracy is not a crime of violence, and the district court erred in

permitting Appellants’ § 924 convictions to be predicated on this offense. In 

addition, because we decided Davis in September 2018 and the Supreme Court 

decided Davis in June 2019, the error is plain. United States v. EscalanteReyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (“[T]he ‘plainness’ of the error 

should be judged by the law at the time of appeal.”).

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As for prong four of plain error review, the Davis error here increased 

Appellants’ sentences significantly and even resulted in additional life 

sentences for Deloyd Jones and Patterson. Declining to correct this 

“particularly egregious error[]” would therefore “cast significant doubt on the 

fairness of the criminal justice system.” United States v. Young, 470 U.S. 1, 15 

(1985) (quoting United States v. Frady, 456 U.S. 152, 163 (1982)); United States 

v. Hornyak, 805 F.3d 196, 199 (5th Cir. 2015) (holding that prong four was 

satisfied where appellant would be kept in prison for an additional sixty-eight

months “because of a clause in a statute declared unconstitutionally void 

during his direct appeal”). Thus, our only remaining inquiry in this case is

under prong three: whether the Davis error in this case affected Appellants’ 

substantial rights. See Puckett, 556 U.S. at 135. We hold that it did.

To establish that an error affected their substantial rights, Appellants 

must “‘show a reasonable probability that, but for the error,’ the outcome of the 

proceeding would have been different[.]” Molina-Martinez v. United States, 

136 S. Ct. 1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542 

U.S. 74, 76 (2004)). In Lewis, we concluded without discussion that a Davis

error affected the appellant’s substantial rights. 907 F.3d at 895. However, 

this case presents a different question because here the jury could have 

convicted on the § 924 counts by relying on either the invalid crime of violence 

predicate or the alternative drug trafficking predicate, the Count 2 controlledsubstance conspiracy.

Appellants contend that the record demonstrates that the Davis error 

affected their substantial rights because the outcome at trial may have been 

different absent the inclusion of the RICO conspiracy crime of violence 

predicate for the § 924 offenses. Appellants argue that the indictment, the 

evidence and arguments presented at trial, and the verdict form indicate that 

the RICO conspiracy encompassed a broader range of conduct than the 

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controlled-substance conspiracy, allowing the jury to convict on the § 924 

counts based on conduct unrelated to drug trafficking. The government

responds that the verdict form and the government’s theory at trial 

demonstrate that the jury necessarily connected the § 924 offenses to the 

controlled-substance conspiracy, so the verdict would have been the same even 

absent the RICO conspiracy predicate.

Courts that have considered § 924 convictions predicated on both a crime 

of violence and a drug trafficking crime have reached disparate conclusions as 

to whether the jury could have convicted based only on the drug trafficking 

predicate. For example, the Eleventh Circuit concluded that an indictment 

charging a § 924(c) offense based on multiple predicate offenses was infirm 

because “a general verdict of guilty does not reveal any unanimous finding by 

the jury that the defendant was guilty of conspiring to carry a firearm during 

one of the potential predicate offenses, all of [the] predicate offenses, or guilty 

of conspiring during some and not others.” In re Gomez, 830 F.3d 1225, 1227 

(11th Cir. 2016); see also In re Cannon, 2019 WL 3334766, at *5 (11th Cir. July 

25, 2019) (holding that appellant made a prima facie showing that his Davis 

claim satisfied the statutory criteria of 28 U.S.C. § 2255(h)(2) where his § 924 

conviction referenced multiple predicates, including one that may no longer 

qualify as a crime of violence, and it was “somewhat unclear which crime or 

crimes served as the predicate offense”).

In contrast, the Second Circuit held in an unpublished case that no plain 

error occurred where the appellant had “admitted to engaging in drug 

trafficking” at trial and “certain questions from the jury during deliberations 

indicate[d] that the jury was considering the drug trafficking predicate” 

instead of the crime of violence predicate. United States v. Ventura, 742 F. 

App’x 575, 578 (2d Cir. 2018), petition for cert. filed (U.S. Feb. 12, 2019) (No. 

18-8055); see also United States v. Vasquez, 672 F. App’x 56, 61 (2d Cir. 2016) 

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(holding that a § 924 conviction “undoubtedly rest[ed] on a valid drugtrafficking predicate” where the crime of violence and drug conspiracy were 

“inextricably intertwined” and the jury convicted on the underlying drug 

conspiracy offense).

Turning to the record in this case, the indictment provides the first 

indication that the RICO conspiracy and the controlled-substance conspiracy 

were not coextensive. While the alleged conduct underlying the RICO 

conspiracy included “conspiracy to distribute controlled substances” and 

“distribution of controlled substances,” it also included a broader range of 

conduct: “conspiracy to commit murder,” “aggravated battery,” the use of 

“stolen vehicles,” and “protecting the power, territory and profits of the 

enterprise through . . . aggravated assault, robbery and murder.” In addition, 

the indictment charged each § 924 offense alongside another offense based on 

the same conduct: for example, Counts 5 and 6 both arose out of the murder of 

Travis Arnold. Although the § 924 offenses included both the RICO and 

controlled-substance predicates, the paired offenses specified that they were 

committed “in Aid of Racketeering”—a reference to 18 U.S.C. § 1959, the 

Violent Crimes in Aid of Racketeering Act (VICAR)—suggesting a connection 

between the conduct underlying each § 924 offense and the RICO conspiracy.

The government’s opening statement and closing argument also suggest 

that the RICO conspiracy offense encompassed conduct beyond the controlledsubstance conspiracy. Specifically, the government’s opening statement 

emphasized that Ride or Die used its guns in acts of violence unrelated to its 

drug activity, such as protecting its gang territory or maintaining its 

reputation. The government made similar statements in its closing argument. 

In addition, witness testimony at trial described RICO conduct unrelated to 

the controlled-substance conspiracy.

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The verdict form further supports Appellants’ argument that there is a 

reasonable probability that the jury’s verdict would not have been the same 

absent the inclusion of the RICO conspiracy as a crime of violence predicate. 

The verdict form included the same VICAR “in Aid of Racketeering” language 

for the offenses paired with each § 924 offense based on the same underlying 

conduct. And Appellants correctly observe that the jury returned the same 

verdicts on each § 924 offense and its paired “in Aid of Racketeering” offense. 

For example, on Counts 5 and 6, the jury convicted Byron Jones of both and 

acquitted Patterson of both. This suggests that the § 924 convictions were 

based on the RICO conspiracy predicate.

The government contends that the verdict form instead establishes that 

the RICO conspiracy and the controlled-substance conspiracy were necessarily 

connected, pointing to the jury’s additional findings on Count 1 that Appellants 

conspired to distribute and possess drugs in furtherance of the RICO 

conspiracy. This does not change our analysis. The fact that Appellants’ drugrelated conduct furthered the RICO conspiracy does not establish the converse: 

that all of Appellants’ RICO conduct furthered the controlled-substance 

conspiracy as well. A reasonable probability remains that the jury relied upon 

RICO conduct separate from the drug conspiracy—such as assaults and 

murders for the purpose of maintaining the gang’s territory or reputation—to 

convict Appellants of the challenged § 924 offenses. Cf. Vasquez, 672 F. App’x 

at 61 (finding no plain error where the potentially invalid predicate “was 

presented as a part of” and was “an act . . . in furtherance of” the indisputably 

valid predicate).

While this is a close question, we conclude that the above record evidence

demonstrates a reasonable probability that the jury would not have convicted 

Appellants of the § 924 offenses if the invalid crime of violence predicate were 

not included on the verdict form. This is not a case like Vasquez or Ventura

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where the record makes clear that the jury based the § 924 convictions on the 

valid drug trafficking predicate. See Vasquez, 672 F. App’x at 61; Ventura, 742 

F. App’x at 577–78.

Finally, the sentences imposed based on Appellants’ § 924 convictions 

were significant: Deloyd Jones received two additional life sentences and thirty

additional years of imprisonment, Byron Jones received approximately fifty

additional years of imprisonment, and Patterson received an additional life 

sentence and twenty additional years of imprisonment. See United States v. 

Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir. 2009) (“[W]e often ask whether 

the error increased the term of a sentence, such that there is a reasonable 

probability of a lower sentence on remand.”). As a result, we hold that the 

inclusion of the RICO conspiracy crime of violence predicate affected 

Appellants’ substantial rights. Appellants have demonstrated plain error.

III.

Because it was plain error to permit the jury to convict Appellants of 

§ 924 offenses based on RICO conspiracy as a crime of violence predicate, we 

VACATE Deloyd Jones’s Count 3, 16, 18, and 20 convictions; Byron Jones’s 

Count 3, 6, and 8 convictions; and Patterson’s Count 3 and 20 convictions. We 

REMAND for further proceedings consistent with this opinion.

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