14

- 1891 United States v. Minaya

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 1

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY 2

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 3

CITING A SUMMARY ORD ER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 4

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 5

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 6

ANY PARTY NOT REPRESENTED BY COUNSEL. 7

At a stated term of the United States Court of Appeals for the Second Circuit, held at 8 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 9

on the 2 2 n d day of J a n u a r y
, two thousand twenty

- one

. 10

11

PRESENT: 12

P IERRE N. L EVAL

, 13

B ARRINGTON D. P ARKER

, 14

S USAN L. C ARNEY

, 15 Circuit Judges

. 16

_________________________________________ 17

18

U NITED S TATES OF A MERICA

, 19

20 Appel lee

, 21

22

v. No. 14

- 1891 23

24

O SCAR M INAYA

, 25

26 Defendant

- Appell ant

. 27

_________________________________________ 28

29

FOR APPELLANT: A NDREW M. S T

. L AURENT

, Harris, St. 30

Laurent & Wechsler LLP, New York, NY

. 31

32

FOR APPELLEE: J ACOB R. F IDDE L MAN , Assistant United 33 States Attorney, for Audrey Strauss , United 34 States Attorney for the Southern District 35 of New York, New York, NY

. 36

37Appeal from a judgment of the United States District Court for the Southern District 1

of New York ( John F. Keenan

, J. ). 2

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 3

ADJUDGED, AND DECREED that the judgment entered on May 27, 20 14

, is 4

VACATED in part and AFFIRMED in part and the case REMANDED for resentencing

. 5

Oscar Minaya appeal s from his judgment of conviction entered on May 27, 2014 , in 6

the United States District Court for the Southern District of New York

. Following a jury 7

trial in 2013, Minaya was convicted of twelve counts, including, as relevant here, four counts 8

under 18 U.S.C. § 924(c) (1)(A)(ii) for using or carrying a firearm in furtherance of a “ crime 9

of violence ” as defined in 18 U.S.C. § 924(c)(3). The district court sentenced Minaya to a 92

- 10

year term of imprisonment, to be followed by five years of supervised release, and ordered 11

him to pay the standard special assessment of $ 1, 200

. I n United States v. Rodri g

uez , 761 F. 12

App’x 53 (2d Cir. 2019) (summary order) , w e affirmed the judgment

. 13

In our affirmance, w e rejected Minaya’s argument that his § 924(c) conviction as 14

charged in Count Three was invalid on his theory that conspiracy to commit a Hobbs Act 15

robbery is not categorica lly a crime of violence. Id . at 63. Minaya petitioned for certiorari on 16

that issue

. In 2019, t he Supreme Court granted the petition, vacated the judgment, and 17

remanded the case for our further consideration of the Supreme Court’s then

- recent 18

decision in Un ited States v. Davis , 139 S. Ct. 2319 (2019). See Minaya v. United States , 140 S. Ct. 19

463 (Nov. 4, 2019) (Mem). 20

On remand, we ordered the parties to submit supplemental briefing addressing the 21

effect of Davis on this Court’s prior decision that Hobbs Act conspiracy is categorically a 22

crime of violence

, see Rodriguez , 761 F. App’x at 63

, and on the question whether kidnapping 23

conspiracy in violation of 18 U.S.C. § 1201(c) is a crime of violence

, for purposes of 24

§ 924(c)(3) (A)

. In th is order resolving Minaya’s current appeal, w e assume the parties’ 25

familiarity with the underlying facts, procedural history, and arguments on appeal, and refer 26

to them only as necessary to explain our decision

. 273 As framed by his indictment and explained by the verdict sheet, Minaya’s four 1

convictions under § 924 (c) (1) rest on the following charged conduct : 2

(1) Count Three : using or carrying a firearm in furtherance of Count One, conspiracy 3

to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951

, and Count Two, conspiracy 4

to commit kidnapping in violation of 18 U.S.C. § 1201 ( c) ; 5

(2) Count Six : on or about December 21, 2010, using or carrying a firearm in 6

furtherance of Count Four, Hobbs Act robbery in violation of 18 U.S.C. § 1951

, and Count 7

Five , kidnapping in violation of 18 U.S.C. § 1201 (a) ; 8

(3) Count Twelve : on or about May 15, 2011, using or carrying a firearm in furtherance 9

of Count Ten, Hobbs Act robbery in violation of 18 U.S.C. § 1951

, and Count Eleven, 10

kidnapping in violation of 18 U.S.C. § 1201 (a) ; and 11

(4) Count Fourteen : on or about June 10, 2011, using or carrying a firearm in 12

furtherance of Count Thirteen

, Hobbs Act robbery in violation of 18 U.S.C. § 1951

. 13

We address his challeng es to each count of conviction in turn. 14

I. Count Three 15

Count Three’s § 924(c) charge rested on two possible predicate “ crimes of violence ”: 16

a conspiracy to commit Hobbs Act robbery (Count One) and a conspiracy to commit 17

kidnapping (Count Two). Following our Court’s decision in United States v. Barrett , 937 F.3d 18

126 , 1 29 (2d Cir. 2019) (“ Barrett II ”)

, conspiracy to commit Hobbs Act robbery does not 19

qualify as a crime of violence under the force cl ause

, § 924(c) (3) (A)

. 1 In light of Davis and 20

1 Section 924(c)(1)(A) proscribes using or carrying a firearm in relation to either a “crime of violence” or a drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). The relevant definition of a “crime of violence” is found in
§ 924(c)(3), which provides two alternative definitions: a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or propert y of another,” id . § 924(c)(3)(A), or “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense ,” id . § 924(c)(3)(B). The second clause, commonly calle d the “residual clause,” was invalidated as unconstitutionally vague by the Supreme Court in United States v. Davis

, 139 S. Ct. 2319, 2336 (2019). The definition in § 924(c)(3)(A), known as the “force clause” or “elements clause,” was unaffected by Davis a nd remains valid. See United States v. Barrett , 937 F.3d 126, 128 (2d Cir. 2019) (recognizing that § 924(c)(3)(A) was not at issue in Davis ).4 Barrett II , conspiracy to commit federal kidnapping seems unlikely to satisfy the relevant 1

definition of a crime of violence as well

. 2

B ut we need not decide that question here

, because t he government no longer presses 3

the argument that conspiracy to commit kidnapping

— which we previously determined 4

qualified as a crime of violence under the now

- invalidated residual clause of § 924(c)(3)

— 5

should be treated as a crime of violence

. Gov’t Ltr. Br. at 3

- 4 (Dk t. No

. 341 ). Cf. United States 6

v. Patino , 962 F.2d 263 , 267 (2d Cir. 1992 ) ( finding kidnapping conspiracy under 18 U.S.C. 7

§ 1201(c) poses a “substantial risk of violence” and therefore is a “crime of violence” under 8

§ 924(c)(3)(B) )

. Rather, t he government now agrees with Minaya that his conviction for 9

Count Three, dually predicated on the two different conspiracies, must be vacated. We 10

identify no impediment to accepting that concession. 11

Because the government consent s to vacatur and remand , we w ill vacate Minaya’s 12

conviction for Count Three

. 13

II. Counts Six and Twelve 14

Minaya’s § 924(c) convictions o n Count Six and Count Twelve each rested on one 15

valid predicate crime (a substantive Hobbs Act robbery) and one arguably invalid predicate 16

crime (substantive kidnapping). On appeal, Minaya argues that substantive kidnapping in 17

violation of 18 U.S.C. § 1201 (a) is no t a crime of violence after Davis because it can be 18

committed by “inveigling” or “decoying” a person, Appellant’s Ltr. Br. at 4, neither of which 19

act necessarily requires the use, attempted use, or threatened use of force. See 18 U.S.C. 20

§ 924(c)(3)(A). Without substantive Hobbs Act robbery as a predicate , Minaya sub mits, his 21

convictions on Count Six and Twelve must be set aside since the record does not establish 22

whether the jury relied on the valid or the invalid predicate crime to support its conviction 23

verdict

. 24

The government does not challenge Minaya’s contention that substantive kidnapping 25

is no t a crime of violence after Davis . Rather, the government argues that

, even if substantive 26

kidnapping is not a crime of violence, the jury must have concluded that Minaya used or 27

aided and abetted the use of a f irearm in connection with the Hobbs Act robberies in 285 addition to the kidnappings

. On this theory they urge that any error in the relevant jury 1

instructions was harmless. In light of the government’s concession, for purposes of our 2

analysis we will assume w ithout deciding that kidnapping in violation of 18 U

. S

. C . § 1201 (a) 3

(absent any death

- resulting enhancement , which is not present here ) is not a crime of 4

violence, and that Hobbs Act robbery is the only viable predicate crime of violence to 5

support Minaya’ s convictions on Count s Six and Twelve. 2 6

Minaya’s theory of error finds its origin in Yates v. United States , 354 U.S. 298, 312 7

(1957) , in which the Supreme Court instructed that “ a verdict [should] be set aside in cases 8

where the verdict is supportable on one ground, but not on another, and it is impossible to 9

tell which ground the jury selected.” Generally, where a jury is instructed that it may convict 10

a defendant on multiple theo ries of guilt, one of which is later determined to be invalid, 11

under Yates

, the jury’s guilty verdict must be overturned if it is “ impossible to tell ” from the 12

verdict which theory formed the basis for conviction. Id .; s ee United States v. Szur , 289 F.3d 13

2 00, 208 (2d Cir. 2002). 14

Yates errors are reviewed for harmlessness. See Skilling v. United States , 561 U.S. 358, 15

414 (2010) (constitutional error occurs if jury is instructed on alternative theories of guilt, 16

one of which is legally invalid, but such erro r is subject to harmless

- error analysis); United 17

States v. Coppola , 671 F.3d 220, 233, 237 (2d Cir. 2012) (holding that any Yates error was 18

harmless where the jury “necessarily would have had to” find the defendant guilty of the 19

valid ground). 3 20

2 M any of our sister circuits have decided that substantive kidnapping in violation of 18 U

. S

. C

. § 120 1(a) is not a crime of violence under the force clause, § 924(c)(3)(A). See, e.g

., Knight v. United States , 936 F.3d 495, 498
(6th Cir. 2019); United States v. Walker , 934 F.3d 375, 378

- 79 (4th Cir. 2019); United States v. Brazier , 933 F.3d

796, 800

- 01 (7th Ci r. 2019) (kidnapping “does not categorically satisfy the elements clause” because it “may be accomplished without force, by ‘inveigling’ or ‘decoying’ a person without a threat of force, and by holding the person simply by locking him or her in a room, aga in without threat of violence”). We have not squarely addressed that question yet in a published opinion.

3 Unlike plain error, an error is harmless “ only if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty a bsent the error.” United States v. Bah , 574 F.3d 106, 114 (2d Cir. 2009)

.6 This Court has also applied a plain

- error standard to instruction error where no 1

objection was made in the district court. United States v. Boyland , 862 F.3d 279, 289 (2d Cir. 2

2017)

. Under plain error review, the defendant must show “(1) there is an error; (2) the error 3

is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the 4

appellant’s substantial rights, which in the ordinary case means it affected the outcome of the 5

district court proceedings; and (4) the error seriously af fect[s] the fairness, integrity or public 6

reputation of judicial proceedings.” Boyland , 862 F.3d at 288

– 89 (internal quotation marks 7

omitted)

. And, i n United States v. Viola , 35 F.3d 37, 41

- 42 (2d Cir. 1994), this Court held that 8

where an error results fro m a supervening decision that changes the applicable law, we apply 9

“modified” plain error review in which the burden shifts to the government to show that the 10

error did not affect the defendant’s substantial rights

. United States v. Botti , 711 F.3d 299, 30 8

- 11

10 (2d Cir. 2013). W e have “repeatedly” expressed doubt , however, as to whether th e 12

modified standard survived the Supreme Court’s decision in Johnson v. United States

, 520 U.S. 13

461 (1997). United States v. Grote , 961 F.3d 105, 116 n.3 (2d Cir. 20 20 )

. 14

In a non

- precedential decision, t his Court also recently applied an “ inextricably 15

intertwined” test to a conviction under § 924(c) that was predicated dually on a Hobbs Act 16

robber y conspiracy and a conspiracy to distribute narcotics. United States v. Vasquez

, 672 F. 17

App’x 56 , 60

- 61 (2d Cir. 2016) (summary order)

. In Vasquez , we determined that, because 18

the firearm in question was used in furtherance of “an agreement to rob drug dealers and to 19

dist ribute any recovered narcotics and narcotics proceeds,” the robbery conspiracy was 20

“inextricably intwined with and, indeed, in furtherance of the charged narcotics conspiracy.” 21

Id . at 61. In such a circumstance, we concluded

, there was no Yates error : we c ould conclude 22

with confidence that the jury’s verdict rested on the valid drug

- trafficking predicate as well as 23

the invalid Hobbs Act robbery conspiracy

. Id. 24

Here, we need not determine what standard of review applies, because our decision 25

would be the same under either harmless error or under plain error

. The crimes charged 26

under b oth Count s Six and Twelve were based on two singular incidents of criminal 27

conduct : the combined robbery

- kidnappings that occurred on December 21, 2010 (Count 28

Six), and on May 15, 2011 (Count Twelve). The December 21, 2010 incident giving rise to 297 Count Six rested on the kidnapping and robbery of a man said to have a relationship with 1

Minaya’s girlfriend . The May 15, 2011 incident giving rise to Count Twelve rested on the 2

kidnap ping and robbery of an ATM owner who, at the time of the robbery, was unknown to 3

Minaya

. Each incident resulted in three charges: a robbery charge, a kidnapping charge, and a 4

§ 924(c) firearms charge. In both incidents, a group of which Minaya was a part attacked the 5

victim

, forced him in to a van

, and then robbed him. A firearm was used during both 6

incidents

, either to assault or threaten to assault the victim

. In these circumstances, we have 7

no doubt that a rational juror would have convicted Minaya on the § 924(c) charge even had 8

Hobbs Act robbery been the sole predicate charged. See Bah , 574 F.3d at 114. 9

Further, although Minaya’s guilt of these charge s was based on aiding and abetting 10

liability, Minaya was also convicted of both the related substantive kidnapping and 11

substantive robbery charges

, in Counts Four

, Five

, Ten

, and Eleven

. Minaya offers no 12

reason to think that he used or aided and abetted the use of the gun in furtherance of only 13

the kidnapping

, but n ot the robbery

, aspects of both incidents. Both Minaya and his co

14

conspirator were convicted of the same charges, even though they played different roles in 15

each crime , an observation further bolster ing our conclusion that the jury saw these charges 16

as eac h arising from one combined incident of criminal conduct. T here fore, there is “no 17

possibility,” Vazquez , 672 F. App’x at 61, and at the very least not a “reasonable probability ,” 18

United States v. Marcus , 560 U.S. 258, 262 (2010)

, that the jury relied solely on the invalid 19

kidnapping predicates in convicting Minaya on Counts Six and Twelve

. 20

A ccordingly, we affirm Minaya’s conviction o n both C ounts Six and Twelve

. 21

III. Count Fourteen 22

Minaya’s § 924(c) conviction for Count Fourteen was predicated on a sing l e act of 23

Hobbs Act robbery, one that was substantively charged in Count Thirteen and occurred on 24

June 10, 2011 . Because we have previously determine d that substantive Hobbs Act robbery 25

is a crime of violence under the force clause in § 924(c)(3)(A)

, see United States v. Hill , 890 26

F.3d 51, 55

- 56 (2d Cir. 2018) , that conviction is unaffected by Davis

. 27

W e therefore affirm Minaya’s conviction on Count Fou rteen. 288 * * * 1

Because the counts of conviction not addressed in this Order ( Counts One, Two, 2

Four, Five, Ten, Eleven, Thirteen, and Fifteen ) are unaffected by the Supreme Court’s 3

holding in Davis

, we adopt and incorporate the conclusion s of our previous summary order 4

to the extent not inconsistent with this Order. 5

For the foregoing reasons

, the District Court ’s judgment of conviction is VACATED 6

as to Count Three and its judgment is AFFIRMED as to all other counts of conviction. In 7

light of our v acatur of the conviction on Count Three , we REMAND for resentencing as to 8

all counts of conviction other than Count Three, s ee United States v. Rigas , 583 F.3d 108, 115

- 9

19 (2d Cir. 2009)

, and for any further proceedings consistent with this Order

. 10

11

FOR THE COURT: 12

Catherine O’Hagan Wolfe, Clerk of Court 13