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United States v. Climico (Mendoza)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT = S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 5 th day of February, two thousand

twenty.

PRESENT: DENNIS JACOBS,

REENA RAGGI,

DENNY CHIN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

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JUAN R. CLIMICO, aka Sealed Defendant, 1,

aka Manuel Climico, aka Juan Clinico, aka

Smiley, aka Juanito, MARCO CRUZ, aka Marco

Antonio Cruz Bello, aka Marcos Cruz, aka

Sealed Defendant, 2, aka Juan Bello, aka Freddo

Gomez, aka Burro, aka Mariguano, FIDEL2 DEJESUS, aka Sealed Defendant, 3, aka

Duende, JORGE LEYVA, aka Sealed Defendant,

4, aka Cucha, JESUS MARTINEZ, aka Sealed

Defendant, 5, aka Gafas, aka Tito, RUBI

MARTINEZ, aka Sealed Defendant, 6,

ARTURO MEDINA

‐ LOPEZ, aka Sealed

Defendant, 7, aka Arturo Medina, aka Marlboro,

YASMIN OSUNA, aka Sealed Defendant, 9, aka

La Mona, La Mono, MARCOS REYES, aka

Sealed Defendant, 10, aka Marco Reyes, aka

Cuervo, WILLIAM ROJAS, aka Sealed

Defendant, 11, aka Willy, LUISBI SANTOS, aka

Sealed Defendant, 12, aka Chorejas, aka

Dumbo, aka Lulu,

Defendants,

RUDY MENDOZA, aka Sealed Defendant, 8, aka

Raul Perez, aka Pedro Mendoza,

Defendant

‐ Appellant.

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FOR APPELLANT: JEREMY GUTMAN, New York, New

York.

FOR APPELLEE: ANDREW THOMAS (Karl Metzner,

on the brief), Assistant United States

Attorneys, for Geoffrey S. Berman,

United States Attorney for the

Southern District of New York, New

York, New York.

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

Southern District of New York (McMahon, Ch.J.).3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the District Court as to the

18 U.S.C. § 924(c)(1)(A)(i) conviction is VACATED

, but the judgment as to the

remaining counts of conviction is AFFIRMED

, except as to sentence, which we

VACATE and REMAND for resentencing on the remaining counts of conviction.

This case returns to us from the Supreme Court for reconsideration in light

of United States v. Davis, 139 S. Ct. 2319 (2019). Rudy Mendoza appealed from

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

York (McMahon, Ch.J.), sentencing him principally to 300 months’ imprisonment

after conviction on five counts, including (1) participation in the “Vagos Gang”

racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); (2) participation in a

Vagos Gang

‐ related conspiracy to distribute and possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), and 846; (3)

participation in a conspiracy to commit Hobbs Act armed robbery of individuals

believed to be in possession of 20 kilograms of cocaine, in violation of 18 U.S.C. §

1959; (4) use of a firearm in connection with the robbery conspiracy, in violation

of 18 U.S.C. § 924(c)(1)(A)(i); and (5) participation in a conspiracy to distribute

and possess with intent to distribute 5 kilograms or more of cocaine, also in

connection with the robbery conspiracy, in violation of 21 U.S.C. §§ 812,

841(a)(1), 841(b)(1)(A), and 846. Relying on then

‐ Circuit law, we affirmed

Mendoza’s conviction on all counts. See United States v. Climico, 754 F. App’x

25, 30

‐ 31 (2d Cir. 2018) (summary order), vacated, sub nom. Mendoza v. United

States, 140 S. Ct. 105 (2019) (mem.).

We initially affirmed the 18 U.S.C. § 924(c) conviction for use of a firearm

in connection with a “crime of violence” on the ground that Mendoza’s

conspiracy to commit Hobbs Act robbery qualifies as a “crime of violence.” Id.

That is no longer tenable: “Davis precludes us from concluding

. . . that

. . . Hobbs Act robbery conspiracy

. . . qualifies as a § 924(c) crime of violence.”

United States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019).

Accordingly, we VACATE Mendoza’s judgment of conviction on the 18

U.S.C. § 924(c)(1)(A)(i) count in its entirety, but we AFFIRM the judgment of

conviction on all other counts for the reasons stated in our October 29, 2018

summary order except as to sentence, which we VACATE and REMAND to4 allow the District Court to consider anew the appropriate sentence for

Mendoza’s crimes in the absence of the consecutive five

‐ year sentence mandated

for his now

‐ vacated § 924(c)(1)(A)(i) crime.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court