20-4192

United States v. Peña

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2021

(Argued: March 10, 2022 Decided: December 13, 2022)

Docket No. 20-4192

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE PEÑA, ALSO KNOWN AS CHELO,

Defendant-Appellant,

RAFAEL FRANCISCO, ALSO KNOWN AS 67, OMAR FLORES, JOSE SANCHEZFERNANDEZ, ALSO KNOWN AS EDDIE, ELYN REYNOSO, ALSO KNOWN AS BB,

VLADIMIR DELACRUZ, ALSO KNOWN AS VLADI, HECTOR RAYMOND PEÑA,

ALSO KNOWN AS C.O. MONTANA,

Defendants.

Before: SACK, LOHIER, AND NARDINI, Circuit Judges.

Defendant-appellant Jose Peña was charged in the United States District 

Court for the Southern District of New York in five counts of an eight-count

indictment in connection with the killings of Jose Suarez and Juan Carmona. 

Counts Four, Five, and Six charged Peña with conspiring to commit, and 

committing, murder for hire in violation of 18 U.S.C. § 1958. Counts Seven and 

Eight charged Peña with use of a firearm to commit murder in violation of 18 

U.S.C. § 924(j). Peña was convicted on all five counts and received a sentence of 

five concurrent life terms, one for each count. 

In response to intervening Supreme Court precedent, Peña filed a motion 

pursuant to 28 U.S.C. § 2255 asserting that his two § 924(j) convictions on Counts 

Seven and Eight should be vacated. The district court (Marrero, Judge) agreed, 
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2

and granted the motion. The court declined, however, to resentence Peña de 

novo. Peña argues that this was error, either because de novo resentencing was 

mandatory, or because the district court abused its discretion in declining to 

resentence Peña de novo. We conclude that § 2255's statutory text vests district 

courts with the discretion to decide when to conduct a de novo resentencing and

that de novo resentencing was not mandatory here. We also conclude that 

because resentencing Peña would have been “strictly ministerial,” resulting in 

the same sentence of mandatory life imprisonment that he received in the first 

instance, the district court did not abuse its discretion. We therefore

AFFIRM the district court's July 6, 2020 amended judgment and its 

December 17, 2020 order.

YUANCHUNG LEE, Federal Defenders of 

New York, Inc., New York, NY, for

Defendant-Appellant;

SAMUEL P. ROTHSCHILD (Karl Metzner, on 

the brief), Assistant United States Attorneys, 

for Audrey Strauss, United States Attorney 

for the Southern District of New York, New 

York, NY, for Appellee.

SACK, Circuit Judge:

Defendant-appellant Jose Peña was charged in the United States District 

Court for the Southern District of New York in five counts of an eight-count

indictment in connection with the killings of Jose Suarez and Juan Carmona. 

Counts Four, Five, and Six charged Peña with conspiring to commit, and 

committing, murder for hire punishable by life imprisonment under 18 U.S.C. 

§ 1958. Counts Seven and Eight charged Peña with use of a firearm to commit 
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3

murder punishable by life imprisonment under 18 U.S.C. § 924(j). Peña was 

convicted on all five counts. The district court sentenced him to five concurrent 

terms of life imprisonment. 

In response to intervening Supreme Court precedent, Peña filed a motion 

pursuant to 28 U.S.C. § 2255 asserting that his two § 924(j) convictions on Counts 

Seven and Eight should be vacated. The district court (Marrero, Judge) granted 

the motion, but it did not resentence Peña de novo. Peña argues that this was 

error, either because de novo resentencing was mandatory, or because the district 

court abused its discretion in declining to resentence Peña de novo. We conclude 

that § 2255's statutory text vests district courts with discretion in such 

circumstances to decide whether or not to conduct a de novo resentencing; de novo 

resentencing was not, under the circumstances presented here, mandatory. We 

also conclude that because resentencing Peña would have resulted in the same 

sentence of mandatory life imprisonment as to which he was originally 

sentenced, the district court did not abuse its discretion in declining to engage in 

such a strictly ministerial de novo resentencing.
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BACKGROUND

A. Factual Background

On April 15, 2013, a Southern District grand jury returned an eight-count

indictment against Jose Peña and two others, including Peña's brother. Peña was 

charged in five of the eight counts. Count Four charged him with conspiracy to 

commit murder for hire in violation of 18 U.S.C. § 1958, alleging that he

conspired to kill Jose Suarez, which resulted in the deaths of Suarez and Juan 

Carmona. Count Five charged Peña with murder for hire in violation of 18 

U.S.C. §§ 2 and 1958 for the killing of Suarez. Count Six charged him with 

murder for hire in violation of 18 U.S.C. §§ 2 and 1958 for the killing of Carmona.

Count Seven charged him with use of a firearm to commit murder for the killing 

of Suarez in violation of 18 U.S.C. §§ 2 and 924(j), both in relation to a crime of 

violence—the conspiracy to commit murder for hire charged in Count Four of 

the indictment—and in relation to an uncharged drug trafficking conspiracy. 

Count Eight charged Peña with use of a firearm to commit murder for the killing 

of Carmona in violation of 18 U.S.C. §§ 2 and 924(j), both in relation to a crime of 

violence—the conspiracy to commit murder for hire charged in Count Four of 

the indictment—and in relation to an uncharged drug trafficking conspiracy. 
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Trial began on October 15, 2013. At trial, the government proffered

evidence that Peña and his brother disguised themselves as police officers; used 

those disguises to stop and kidnap Suarez and Carmona on June 25, 1997; fatally 

shot them; and set fire to their bodies. The government's case included, among 

other evidence, the testimony of more than two dozen witnesses; ballistics 

reports; crime-scene evidence including video surveillance and handcuffs used 

in the disguise; and a gun recovered from Peña's brother, Hector. 

The district court’s instruction to the jury on Count Four included the 

statement: "[Y]ou may find the defendants guilty of the crime of conspiring to 

commit a murder for hire even if no murder for hire was actually committed. 

Conspiracy is a crime, even if the conspiracy was not successful. Substantive 

murder for hire is also charged in Counts Two, Five and Six, as you know." Jose 

Peña App’x 44, Excerpts of Jury Trial dated October 28, 2013. That portion of the 

instruction was erroneous. While the jury was not required to find that a victim 

of the crime died in order to convict Peña for violating 18 U.S.C. § 1958(a), such a 

finding was required to subject Peña to the enhanced punishment of death or life 

imprisonment. See 18 U.S.C. § 1958(a) (providing inter alia that whoever 

conspires to use interstate commerce to commit murder for hire shall be 
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6

imprisoned for not more than ten years if death or personal injury does not result 

and punished by death or life imprisonment if death does result); see also Burrage 

v. United States, 571 U.S. 204, 210 (2014) (concluding while interpreting an 

unrelated statute that "[b]ecause the 'death results' enhancement increased the 

minimum and maximum sentences to which [the defendant] was exposed, it is 

an element that must be submitted to the jury and found beyond a reasonable 

doubt").

Similarly, the district court erroneously instructed the jury regarding 

Counts Five and Six, stating that: "The government does not have to prove that 

the murder was committed or even that it was attempted. It must prove that the 

travel in interstate or foreign commerce or the use of the facility of interstate or 

foreign commerce was done with the intent to further or facilitate the 

commission of the murder." Jose Peña App’x 44, Excerpts of Jury Trial dated 

October 28, 2013. Again, the instruction was erroneous inasmuch as the jury was 

indeed required to find that death resulted to subject Peña to the maximum 

punishment for these offenses. See 18 U.S.C. § 1958(a).

Trial concluded on October 29, 2013. The jury convicted Peña on all five

counts against him. 
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On December 19, 2014, the district court held Peña's sentencing hearing. 

The Presentence Report ("PSR") concluded that the three § 1958 counts qualified 

for a mandatory life sentence, the two § 924(j) counts carried a maximum

sentence of life imprisonment, and the Sentencing Guidelines range was life. The

district court sentenced Peña to five concurrent terms of life imprisonment, one 

for each count, and imposed a $500 mandatory special assessment. 

Procedural History 

Peña appealed to this Court, which affirmed the district court's judgment

in 2016. See United States v. Francisco, 642 F. App'x 40, 45–46 (2d Cir. 2016)

(summary order). Later that same year, Peña moved pursuant to § 2255 to vacate 

his convictions on several grounds including ineffective assistance of counsel. 

See Pena v. United States, 192 F. Supp. 3d 483, 486–87 (S.D.N.Y. 2016). The district 

court denied the motion. Id. at 496. In 2017, Peña moved in this Court for a 

certificate of appealability. See Pena v. United States, 334 F. Supp. 3d 578, 579 

(S.D.N.Y. 2018) (explaining procedural history). We dismissed the appeal 

because the notice of appeal was untimely. See id. Later in 2017, Peña again

moved to reopen his § 2255 proceeding. Id. In 2018, the district court denied that 

motion. Id. at 578. Peña then moved in this Court for a certificate of 
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8

appealability, which we denied in 2019. See Pena v. United States, No. 18-3315, 

2019 WL 11891995, at *1 (2d Cir. Apr. 10, 2019). 

In February 2020, Peña moved in this Court for permission to file another 

§ 2255 motion in light of United States v. Davis, 139 S. Ct. 2319 (2019). Davis held 

that an offense could qualify as a predicate "crime of violence" for purposes of 

§ 924(c) only if it was a felony that "ha[d] as an element the use, attempted use, or 

threatened use of physical force against the person or property of another." Id. at 

2323–24 (citation omitted); see also id. at 2336 (declaring unconstitutional a 

separate clause of § 924(c) that defined a predicate "crime of violence" as a felony 

"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" (citation omitted)). Peña argued that conspiracy to commit murder for 

hire no longer qualified as a "crime of violence" under 18 U.S.C. § 924(j) because 

such a conspiracy does not require actual or threatened use of physical force. We

granted Peña permission to file another § 2255 motion. See Pena v. United States,

No. 19-1545, 2020 WL 6846397, at *1 (2d Cir. July 15, 2020).

The government consented to the vacatur of Peña's convictions on Counts

Seven and Eight, agreeing that those convictions could not stand after Davis. On
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United States v. Peña

9

July 6, 2020, the district court granted Peña's motion to vacate Counts Seven and 

Eight. However, the court decided that a full resentencing was not warranted 

"[b]ecause vacatur of Counts Seven and Eight will not affect Peña's other 

convictions, each of which carries a mandatory term of life imprisonment." Jose 

Peña App’x 68, Order dated July 6, 2020. The district court amended the 

judgment to reflect concurrent sentences of life imprisonment on Counts Four, 

Five, and Six. 

Peña moved for reconsideration. He argued that de novo resentencing was 

mandatory, citing United States v. Rigas, 583 F.3d 108, 115–16 (2d Cir. 2009). He

also argued that, because the court erroneously failed to instruct the jury to

determine whether death resulted from the murder-for-hire conspiracy described 

in the three § 1958 counts, the district court erred in denying de novo 

resentencing. Peña claimed that, because the jury did not specifically find that 

death was a result of Peña's offenses in Counts Four, Five, and Six, the district 

court could sentence him to only ten years of imprisonment on each of those 

counts. 

On December 17, 2020, the district court denied Peña's motion for 

reconsideration. It reasoned that the "rule requiring de novo resentencing" is 
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10

"expressly limited to instances in which a conviction was overturned on direct 

appeal" and "does not apply in the Section 2255 context." Jose Peña App’x 94, 

Decision and Order dated December 17, 2020. The court also rejected Peña's 

argument that—because of the deficient jury instructions for Counts Four, Five, 

and Six—Peña could be sentenced to no more than ten years on each count, 

stating that "in convicting Peña of Counts Seven and Eight, the jury necessarily 

found that Peña was a substantial factor in causing the victim's death and also

that the victim was in fact murdered, i.e., that death resulted." Id. at 96 (internal 

quotation marks omitted). 

Peña timely appealed. 

DISCUSSION

I. De Novo Resentencing Was Not Mandatory 

Section 2255 grants district courts the discretion to choose among four 

remedies when reviewing a sentence that was not authorized by law or is 

otherwise open to collateral attack. See 28 U.S.C. § 2255(b). A court may: "[1] 

vacate and set the judgment aside and . . . discharge the prisoner or [2] 

resentence him or [3] grant a new trial or [4] correct the sentence as may appear 

appropriate." Id. 
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11

Peña relies on our decisions in United States v. Quintieri, 306 F.3d 1217 (2d 

Cir. 2002), and Rigas to argue that the district court was required to conduct a de 

novo resentencing. In Quintieri, we noted that "resentencing usually should be de 

novo when a Court of Appeals reverses one or more convictions and remands for 

resentencing." 306 F.3d at 1228 (emphasis in original). In Rigas, we observed that 

Quintieri "created a 'default rule' that de novo resentencing is required where a 

conviction is reversed in part on appeal," 583 F.3d at 115 (citation omitted), and 

underscored that this rule is "not a guideline," id. at 117. 

But both Quintieri and Rigas were decided in the context of direct appeals, 

not collateral challenges pursuant to § 2255. See Quintieri, 306 F.3d at 1227–28 

("When the conviction on one or more charges is overturned on appeal and the case 

is remanded for resentencing, the constellation of offenses of conviction has been 

changed and the factual mosaic related to those offenses that the district court 

must consult to determine the appropriate sentence is likely altered." (emphasis 

added)); see also Rigas, 583 F.3d at 117 ("[R]esentencing is required where part of a 

conviction is reversed on appeal." (emphasis added)). Peña argues that this is a 

distinction without a difference and urges us to extend the default rule in Rigas 

to the § 2255 context. We decline to do so. Section 2255's plain text, which vests 
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12

district courts with discretion to select the appropriate relief from a menu of 

options, precludes us from applying the default rule in Rigas to all cases that 

arise in the § 2255 context. 

District courts in this Circuit have come to a similar conclusion. For 

example, in United States v. Medunjanin, No. 10-cr-0019 (BMC), 2020 WL 5912323 

(E.D.N.Y. Oct. 6, 2020), the district court held that "the default rule does not 

require a de novo resentencing in the § 2255 context" because the "plain text of 

§ 2255 vests the Court 'with the discretion to determine first the nature of the 

relief that 'may appear appropriate,''" id. at *8 (citation omitted). Similarly, in 

Ayyad v. United States, No. 16-cv-4346 (LAK), 2020 WL 5018163 (S.D.N.Y. Aug. 24, 

2020), the district court noted that it was not "aware of[] any case in which the 

Quintieri default rule has been applied in the habeas context" and reasoned that 

such a rule "would be in tension with the narrow scope of Section 2255," id. at *2. 

We have held that judges have discretion with respect to resentencing in 

the § 2255 context. In United States v. Gordils, 117 F.3d 99 (2d Cir. 1997), we 

rejected the defendant's argument that district courts have no discretion to 

engage in de novo resentencing under § 2255, id. at 104. "[A]t least in the context 

of a 'truly interdependent sentence' such as where a mandatory consecutive 
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United States v. Peña

13

sentence affects the applicable offense level under the guidelines—the language 

of § 2255 provides sufficient statutory authority for a district court to exercise its 

jurisdiction to resentence defendants 'as may appear appropriate.'" Id. (citations 

omitted). Peña argues that the discretion discussed in Gordils was erased by 

Quintieri and Rigas. We conclude to the contrary that § 2255's statutory text

continues to grant district courts discretion in the matter.

The government argues that every circuit to analyze this issue has held 

that de novo resentencing is not required in this context. That appears to be 

correct. 

A recent opinion of the Sixth Circuit is instructive. In United States v. 

Augustin, 16 F.4th 227 (6th Cir. 2021), cert. denied, 142 S. Ct. 1458 (mem.) (2022), a 

defendant was convicted on eight counts of an indictment, including a conviction 

under § 924(c) for using a firearm during a crime of violence, id. at 231. After 

Augustin argued that his § 924(c) conviction was no longer valid under Davis, 

the district court vacated his § 924(c) conviction and the corresponding 120-

month sentence without a de novo resentencing. Id.

Augustin argued on appeal that the district court should instead have 

resentenced him. Augustin, 16 F.4th at 231. The Sixth Circuit noted that 
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14

resentencing is "akin to 'beginning the sentencing process anew'" and requires a 

full sentencing hearing. Id. at 232 (citation omitted). A sentence correction, on 

the other hand, is appropriate when "it simply vacates 'unlawful convictions 

(and accompanying sentences)' without choosing to reevaluate 'the 

appropriateness of the defendant's original sentence.'" Id. (citation omitted). The 

Sixth Circuit concluded that "district courts have broad [but not unbounded1]

discretion to choose between these remedies." Id. 

At oral argument, Peña conceded that no other circuit has held that de novo

resentencing is required in the § 2255 context. See, e.g., Troiano v. United States, 

918 F.3d 1082, 1087 (9th Cir. 2019) ("[T]he decision to unbundle a sentencing 

package—that is, to conduct a full resentencing on all remaining counts of 

conviction when one or more counts of a multi-count conviction are undone—

rests within the sound discretion of the district court."); United States v. Palmer, 

1 For example, 

[R]esentencing may be necessary if the error "undermines the sentence as a 

whole" such that the district court must "revisit the entire sentence." In that case, 

a court would need to start from scratch—that is, to recalculate the Guidelines 

range, reconsider the § 3553(a) sentencing factors, and "determine[] anew what 

the sentence should be." Resentencing may also be necessary if a court must 

exercise significant discretion "in ways it was not called upon to do at the initial 

sentencing." For instance, if the court "vacates a mandatory-minimum sentence 

and then is able to consider the statutory sentencing factors for the first time." 

Id. (alteration in original) (emphasis in original) (citations omitted). The issue is discussed 

further below.
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15

854 F.3d 39, 49 (D.C. Cir. 2017) ("The district court was required to do no more, 

for Section 2255(b) accords it discretion in choosing from among four remedies, 

'as may appear appropriate.'"). We find our sister circuits' reasoning to be

persuasive. We conclude that § 2255 grants district courts discretion in selecting 

a remedy. 

II. The District Court Did Not Abuse Its Discretion 

Peña argues that even if a district court is not required to conduct a de novo

resentencing in the § 2255 context after a conviction has been reversed, the 

district court abused its discretion by not resentencing Peña de novo. Peña bases 

his argument on the contention that—under the flawed jury instructions for 

Counts Four, Five, and Six—he was convicted of only the base offense under §

1958: conspiring to commit, and committing, murder for hire. Inasmuch as that 

crime carries a ten-year maximum sentence, he asserts, a full resentencing would 

result in a significantly lower sentence on those counts. According to Peña, the 

district court did not fully appreciate these points and misunderstood the 

authority it had to impose a non-life sentence at his resentencing. Peña's 

argument fails for two reasons. 

First, Peña's argument regarding his § 1958 convictions and the sentences
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16

he would receive on resentencing is procedurally defaulted. "In general, a 

defendant is barred from collaterally challenging a conviction under § 2255 on a 

ground that he failed to raise on direct appeal." United States v. Thorn, 659 F.3d 

227, 231 (2d Cir. 2011). Peña had the opportunity to challenge the erroneous jury 

instructions associated with his convictions on Counts Four, Five, and Six before 

the verdict or after his trial. He did not do so. He then failed to raise the issue on 

his direct appeal. See Francisco, 642 F. App'x at 45 (describing Peña's arguments 

on appeal). These failures constituted a procedural default.2

Peña asserts that "[t]he Government . . . attacks a straw person in arguing 

that such an argument is procedurally defaulted" because Peña is simply 

claiming that the district court abused its discretion when declining to resentence 

him. Appellant's Reply Brief at 8–9. But Peña's abuse-of-discretion argument is 

2 The Supreme Court has "acknowledged that in certain circumstances counsel's ineffectiveness 

in failing properly to preserve the claim for review . . . will suffice" as cause to excuse a 

procedural default, Edwards v. Carpenter, 529 U.S. 446, 451 (2000), but that argument is 

unavailable here. Peña challenged the validity of his convictions on Counts Four, Five, and Six 

in his first § 2255 motion, citing ineffectiveness of counsel. See Pena, 192 F. Supp. 3d at 494

("Pena claims that Sentencing Counsel was ineffective because she failed to raise the claim . . . 

that the jury must determine whether death did in fact result from Pena's conduct as required 

by 18 U.S.C. Section 1958."). The district court rejected Peña's argument, id. at 494–95, and we 

dismissed his appeal, see Pena, 334 F. Supp. 3d at 579. Any claim raised in a § 2255 motion "that 

was also raised in [a] previous § 2255 motion . . . is precluded from consideration by this Court." 

Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) (first alteration in original) (citation 

omitted). 
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the same as the procedurally defaulted argument that the sentences he received 

on Counts Four, Five, and Six were unlawful because he was charged on 

erroneous jury instructions. See id. at 9 ("[T]he court mistakenly believed that 

resentencing was pointless because it would be required to reimpose the same

life sentences on the § 1958 counts at such a proceeding."). A defendant can raise 

new arguments in a § 2255 motion "if the defendant establishes (1) cause for the 

procedural default and ensuing prejudice or (2) actual innocence." Thorn, 659 

F.3d at 231. Peña cannot establish cause and prejudice or actual innocence; he 

does not even attempt to do so. We reject Peña's attempt thus to sidestep the 

procedural-default rule. A district court's decision to deny a defendant's request 

for resentencing in the § 2255 context does not empower a defendant to raise 

otherwise procedurally defaulted arguments against the merits of the 

defendant's convictions and sentence.3 

Second, even if Peña were allowed to raise his challenges to his sentences 

on Counts Four, Five, and Six in this § 2255 motion, his challenges would fail. 

Peña contends that because the district court instructed the jury that it did not 

need to find that death resulted in order to convict him of these three counts, 

3 We need not and do not express any opinion about the arguments Peña would be permitted to 

make at resentencing had the district court granted his request for a resentencing de novo. 
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Peña's sentences for those convictions may not exceed 10 years on each count,

Counts Four, Five, and Six charged Peña with conspiracy to commit murder for 

hire, and murder for hire, in violation of § 1958. This statute contains three levels 

of punishment depending on the result of the murder-for-hire conduct. Those 

who violate the base offense, use of interstate commerce in the commission of 

murder for hire, "shall be fined . . . or imprisoned for not more than ten years, or 

both." 18 U.S.C. § 1958(a). "[I]f personal injury results" from the base offense, 

violators "shall be fined . . . or imprisoned for not more than twenty years, or 

both." Id. But "if death results, [violators] shall be punished by death or life 

imprisonment, or shall be fined not more than $250,000, or both." Id. 

Peña is correct that the district court should have instructed the jury it 

needed to determine whether death was a result of the conduct alleged in Counts 

Four, Five, and Six. Under Alleyne v. United States, 570 U.S. 99 (2013), and

Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact, other than a prior conviction, 

that triggers statutory mandatory minimums and maximums must be found by a 

jury or admitted by the defendant. See Alleyne, 570 U.S. at 103 ("[A]ny fact that 

increases the mandatory minimum is an 'element' that must be submitted to the 

jury."); Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction, any 
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fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable 

doubt."); see also United States v. Booker, 543 U.S. 220, 244 (2005) (holding that 

Apprendi is not violated when the relevant fact is “admitted by the defendant”). 

Whether death resulted is a fact that triggered a higher mandatory minimum 

sentence, and the district court erred by not instructing the jury to make a 

finding as to this fact if it determined that Peña was guilty of Counts Four, Five, 

and Six. 

But the district court's error was harmless. Alleyne and Apprendi errors are 

subject to harmless-error analysis. See United States v. Confredo, 528 F.3d 143, 156

(2d Cir. 2008); United States v. Friedman, 300 F.3d 111, 127 (2d Cir. 2002). "In 

undertaking a harmless-error analysis, we must determine whether it appears 

beyond a reasonable doubt that the error complained of did not contribute to the 

verdict obtained." Friedman, 300 F.3d at 128 (internal quotation marks and 

citation omitted); see also Neder v. United States, 527 U.S. 1, 17 (1999) ("[W]here a 

reviewing court concludes beyond a reasonable doubt that the omitted element 

was uncontested and supported by overwhelming evidence, such that the jury 

verdict would have been the same absent the error, the erroneous instruction is 
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properly found to be harmless."). 

There is overwhelming evidence that the jury would have found that 

death was the result of the conduct alleged in Counts Four, Five, and Six had it 

received proper instructions. As an initial matter, Peña's murder-for-hire 

conspiracy did result in the deaths of Suarez and Carmona, and the jury heard 

evidence of this fact at trial. The jury also convicted Peña of use of a firearm to 

commit murder in violation of 18 U.S.C. § 924(j) in Counts Seven and Eight. The 

jury could not have returned this verdict without finding that Peña's conduct 

resulted in death. Although Peña's convictions on Counts Seven and Eight are 

no longer valid following Davis, the jury's verdict demonstrates that it would 

have found that death resulted from Peña's murder-for-hire conspiracy had it 

received proper instructions on Counts Four, Five, and Six.

Peña objects to our inquiry into what the jury would have found had it 

received proper instructions, but he bases his objection largely on cases where 

the indictment failed to allege an element of the offense. See, e.g., United States v. 

Lang, 732 F.3d 1246, 1249 (11th Cir. 2013) ("We cannot combine the allegations 

from separate counts to allege what the indictment itself does not."); see also

United States v. Thomas, 274 F.3d 655, 667–69 (2d Cir. 2001) (en banc) (district 
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court erred in sentencing defendant based on its own finding that the defendant's 

crime involved a specific drug quantity when the indictment did not allege any 

specific drug quantity and the jury did not make a finding on this issue). There 

was no such indictment error here: Counts Four, Five, and Six of the indictment 

did allege that Peña's murder-for-hire conspiracy resulted in death. And even if 

that allegation had been omitted, our case law makes clear that the mistaken 

omission of an element from an indictment is amenable to harmless-error 

analysis. See United States v. Confredo, 528 F.3d 143, 156 (2d Cir. 2008) (“[A]n 

Apprendi violation concerning an omission from an indictment is not noticeable 

as plain error where the evidence is overwhelming that the grand jury would 

have found the fact at issue. We think the same analysis should apply to 

harmless error.” (internal citation omitted)). Any such omission would have 

been harmless for the same reasons as the instructional error.4

4 We decided a similar case in United States v. Ventura, 742 F. App'x 575 (2d Cir. 2018). Ventura is 

a summary order and therefore not binding precedent. We note nonetheless that the defendantappellant there argued "that the district court erroneously sentenced him to a mandatory 

minimum of life imprisonment on Counts Two and Three, the murder-for-hire charges, in the 

absence of a jury finding specifically authorizing such a minimum." Id. at 579. As in this case, 

"the district court did not charge the jury with specifically finding that 'death resulted'" from the 

conduct alleged in the two murder-for-hire charges. Id. at 580. The panel in Ventura reasoned 

that this error was harmless because "the evidence was overwhelming that the deaths did result 

from Ventura's murder for hire conduct," and observed that "the jury convicted Ventura of 

causing the death . . . of those two victims when it convicted him of" use of a firearm to commit 

murder in violation of 18 U.S.C. § 924(j). Id. at 578, 580. Binding or not, we see no fault in 

Ventura’s harmless-error analysis. 
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Having concluded that Peña's challenges to his § 1958 sentences are 

defaulted and in any event meritless, we conclude the district court did not 

abuse its discretion in denying to resentence Peña de novo. Any resentencing 

would have been "strictly ministerial," serving simply to delete the sentences on 

the now-vacated counts. Cf. United States v. Powers, 842 F.3d 177, 180 (2d Cir. 

2016) (per curiam) (citation omitted). As noted in our discussion of Augustin

above, a district court's discretion to not conduct a de novo resentencing has 

limits. It may be that in most cases in which resentencing would not be strictly 

ministerial, a district court abuses its discretion when it denies de novo 

resentencing. But we need not and do not attempt today to define the 

circumstances under which a district court abuses its discretion in denying de 

novo resentencing. It is enough, in light of the facts of the case at bar, to conclude 

only that a district court may properly deny de novo resentencing when the 

exercise would be an empty formality, as it would be here. 

CONCLUSION

We have considered Peña's remaining arguments on appeal and conclude 

that they are without merit. For the reasons explained above, we AFFIRM the 

district court's July 6, 2020 amended judgment and December 17, 2020 order.