21-2632

Gomez v. United States

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2022

No. 21-2632

CARLOS GOMEZ, 

Petitioner-Appellant, 

v.

UNITED STATES OF AMERICA, 

Respondent-Appellee.

On Appeal from the United States District Court 

for the Southern District of New York

SUBMITTED: NOVEMBER 22, 2022

DECIDED: NOVEMBER 21, 2023

Before: KEARSE, PARK, and MENASHI, Circuit Judges. 

Petitioner-Appellant Carlos Gomez appeals from the denial of 

his successive § 2255 motion challenging his conviction and 

accompanying sentence for using or carrying a firearm in relation to 

a crime of violence in violation of 18 U.S.C. § 924(c). In his motion, 

Gomez argued that his § 924(c) conviction was invalid in light of 

United States v. Davis, 139 S. Ct. 2319 (2019). The district court denied 
2 

the motion because it determined that Gomez’s § 924(c) conviction 

rested on the valid predicate crime of murder. The district court 

further held that its Pinkerton instruction—which permits a jury to 

convict a defendant of a substantive offense committed by his 

co-conspirators—did not undermine the validity of the § 924(c) 

predicate. We conclude that intentional murder under New York law, 

even when the conviction is based on a Pinkerton theory of liability, 

qualifies as a crime of violence within the meaning of § 924(c). Under 

a Pinkerton theory the defendant is convicted of the substantive 

offense—not of conspiring to commit the offense—so he has 

committed a crime of violence if the substantive offense is a crime of 

violence. Because Pinkerton does not transform a substantive offense 

into a conspiracy offense, it does not implicate Davis. Accordingly, we 

affirm the judgment of the district court. 

Sarah Kunstler, Law Offices of Sarah Kunstler, Brooklyn, 

NY, for Petitioner-Appellant. 

Brandon D. Harper, Hagan Scotten, Assistant United 

States Attorneys, for Damian Williams, United States 

Attorney for the Southern District of New York, New 

York, NY, for Respondent-Appellee. 

MENASHI, Circuit Judge: 

Petitioner-Appellant Carlos Gomez, currently incarcerated,

appeals from the denial of his successive § 2255 motion to vacate his 

sentence for the use or carrying of a firearm in relation to a crime of 

violence in violation of 18 U.S.C. § 924(c). In his motion, Gomez 

argued that his § 924(c) conviction—predicated on the murder of and 
3

the conspiracy to murder Jose Gonzalez Santiago as charged in a 

racketeering count—must be vacated because the jury might have 

relied on a now-invalid conspiracy predicate. See United States v. 

Barrett, 937 F.3d 126, 128 (2d Cir. 2019) (holding that a conspiracy to 

commit a crime of violence such as Hobbs Act robbery is not itself a 

crime of violence in light of United States v. Davis, 139 S. Ct. 2319 

(2019)), vacated on other grounds, 143 S. Ct. 1713 (2023).

The district court denied the motion. United States v. Gomez, 

No. 97-CR-696, 2021 WL 3617206 (S.D.N.Y. Aug. 16, 2021). It 

determined that Gomez’s § 924(c) conviction rested on the valid 

predicate crime of intentional murder under New York law. The 

district court further concluded that its Pinkerton instruction—which 

permits a jury to convict a defendant of a substantive offense 

committed by his co-conspirators—did not undermine the validity of 

the substantive murder predicate as a crime of violence. See Pinkerton 

v. United States, 328 U.S. 640, 646-47 (1946). Because we have not yet 

addressed the issue, the district court issued a certificate of 

appealability as to “whether the Court’s jury instruction on Pinkerton

liability affects the validity of an 18 U.S.C § 924(c) predicate.” App’x 

32.

We conclude that a conviction for intentional murder under 

New York law, even when the conviction is based on a Pinkerton

theory, is a categorical crime of violence that can support a § 924(c) 

conviction. Under a Pinkerton theory the defendant is convicted of the 

substantive offense—not of conspiring to commit the offense—so he 

has committed a crime of violence if the substantive offense is a crime 

of violence. Because Pinkerton does not transform a substantive 

offense into a conspiracy offense, it does not implicate Davis. 

Accordingly, we affirm the judgment of the district court.
4

BACKGROUND

In the 1980s and 1990s, Gomez founded and led the 

Westchester Avenue Crew, a Bronx-based heroin and cocaine 

distribution enterprise. Gomez was arrested in 1997 and was 

ultimately indicted on fifteen counts.

The superseding indictment charged Gomez with racketeering 

in violation of 18 U.S.C. § 1962(c) (Count 1). Among the racketeering 

acts, “Act of Racketeering One” was premised alternatively on the 

conspiracy to murder or the murder of Santiago in violation of New 

York law. Add. 4. In addition, Gomez was charged with using or

carrying a firearm in relation to a crime of violence in violation of 

18 U.S.C. § 924(c) (Count 10). This charge was predicated on “the 

conspiracy to murder and murder of Jose Gonzalez Santiago ... 

charged as Racketeering Act One in Count One, and in Counts Three 

and Four, of this Indictment.” Add. 14.1

I

At trial, the government presented evidence that Gomez 

personally ordered the killing of Santiago, provided the .38 caliber 

firearm used in the crime, and paid several thousand dollars to the 

person who carried out the killing. The government argued that 

Gomez ordered the murder in retaliation for the murder of one of 

Gomez’s relatives, which Gomez believed may have been a failed 

attempt on his own life. 

1 Gomez was also charged with conspiracy to murder Santiago in aid of 

racketeering in violation of 18 U.S.C. § 1959(a)(5) and with the murder of 

Santiago in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1)-(2). 

Add. 8-10.
5

In instructing the jury on the racketeering count and its 

predicate acts, the district court explained the elements of seconddegree murder under New York law. “Racketeering act 1(b) charges 

that he murdered and aided and abetted the murder of [Santiago]. 

Section 125.25 of the penal law of the State of New York makes it a 

crime to murder someone.” Supp. App’x 42. “New York law says[] a 

person is guilty of murder when with intent to cause the death of 

another person he causes the death of such person or of a third 

person.” Id.

The district court then explained that, in order to find Gomez 

guilty of violating § 924(c), there must be proof that Gomez either 

used or carried a firearm—or aided and abetted others in doing so—

during and in relation to a crime of violence for which he could be 

prosecuted in federal court, “to wit, the conspiracy to murder and 

murder of [Santiago] charged in racketeering act 1 and count 1 and in 

counts 3 and 4 of this indictment.” Id. at 48. The district court 

informed the jury that to “convict Mr. Gomez under count 10 you 

must find the government has proven beyond a reasonable doubt his

involvement in either the conspiracy to murder [Santiago] or the

murder of [Santiago], but not both.” Id. at 49.

The district court instructed the jury on Pinkerton liability as 

follows:

If, in light of my instructions, you find beyond a 

reasonable doubt that the defendant was a member of the 

conspiracy charged in the indictment, for example, the 

conspiracy to murder [Santiago], then you may also, but 

you are not required to, find him guilty of the 

corresponding substantive crime charged, in this 

example, the murder of [Santiago] and the use and 
6

carrying of a firearm during and in relation to the 

conspiracy to murder and murder of [Santiago].

Id. The district court then explained that Pinkerton liability required 

findings that the substantive offense was committed by members of 

the conspiracy pursuant to a common plan or understanding and that 

the offense was reasonably foreseeable.

The jury convicted Gomez on four counts: racketeering (Count 

One), racketeering conspiracy (Count Two), using or carrying a 

firearm during a crime of violence (Count Ten), and narcotics 

conspiracy (Count Fifteen). As to racketeering, the jury found that 

both the murder of Santiago and the conspiracy to commit the murder 

had been proven. Add. 32. The jury convicted Gomez on the § 924(c) 

charge in relation to the same murder and conspiracy to murder. Add. 

32-33.2

Pursuant to the then-mandatory Sentencing Guidelines, the 

district court sentenced Gomez to three concurrent life sentences—for 

racketeering, racketeering conspiracy, and narcotics conspiracy—

2 Gomez was acquitted of Counts Three and Four, which had re-charged 

the racketeering acts as in-aid-of-racketeering federal crimes. Acquittal on

these counts is consistent with the jury’s racketeering conviction. As the 

district court explained, federal murder in aid of racketeering “adds an 

additional element to state murder law: [that] the murder be ‘as 

consideration for ... anything of pecuniary value from an enterprise 

engaged in racketeering activity, or for the purpose of gaining entrance to 

or maintaining or increasing position in an enterprise engaged in 

racketeering activity.’” Gomez, 2021 WL 3617206, at *3 (quoting 18 U.S.C. 

§ 1959(a)). The government’s theory was that Gomez ordered Santiago’s 

murder as payback for what Gomez took to be an attempt on his own life.

The jury could have found that Gomez was liable for the murder but lacked 

the requisite motivation for pecuniary gain or enhancement of position. 
7

followed by a consecutive sixty-month sentence for the § 924(c) 

conviction. 

II

The jury convicted Gomez in September 1999 and he was 

sentenced in July 2000. In December 2001, we affirmed the judgment 

on direct appeal. United States v. Feliciano, 26 F. App’x 55, 57 (2d Cir. 

2001). In March 2003, the district court denied Gomez’s first § 2255 

motion and declined to issue a certificate of appealability.

In 2021, we granted Gomez leave to file a successive § 2255 

motion in light of Davis. The district court issued an opinion denying 

the motion but granted a certificate of appealability “regarding the 

issue of whether the Court’s jury instruction on Pinkerton liability 

affects the validity of an 18 U.S.C. § 924(c) predicate.” App’x 32.

Proceeding pro se, Gomez appealed the judgment denying his § 2255 

motion. 

After the appeal was submitted, we ordered the appointment 

of counsel for Gomez and instructed the parties to address

(1) whether the district court’s instruction on Pinkerton liability 

affected the validity of Gomez’s 18 U.S.C. § 924(c) conviction; 

(2) whether Gomez’s claim is subject to the concurrent sentence 

doctrine; (3) whether Gomez’s claim has been procedurally defaulted; 

and (4) whether any error was harmless. 

DISCUSSION

A federal inmate may move the district court to “vacate, set 

aside or correct” a sentence if “the sentence was imposed in violation 

of the Constitution or laws of the United States ... or [the sentence] is 

otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). In 

reviewing the denial of Gomez’s § 2255 motion, we review the district 
8

court’s legal conclusions de novo and defer to its findings of fact unless 

those findings are clearly erroneous. Rivera v. United States, 716 F.3d 

685, 687 (2d Cir. 2013).

I

We first consider the government’s arguments for not reaching 

the merits based on the concurrent sentence doctrine, procedural 

default, and harmless error. We are unable to avoid reaching the 

merits on any of these bases.

A

The concurrent sentence doctrine is “a rule of judicial 

convenience” that “allows courts, in their discretion, to avoid 

reaching the merits of a claim altogether in the presence of identical 

concurrent sentences since a ruling in the defendant’s favor would 

not reduce the time served or otherwise prejudice him in any way.” 

Kassir v. United States, 3 F.4th 556, 561 (2d Cir. 2021) (internal 

quotation marks and footnote omitted). In addition, we have 

discretion to apply the doctrine in the context of challenged 

consecutive sentences when (1) the collateral challenge will have no 

effect on the time the defendant must remain in custody and (2) the 

unreviewed conviction will not yield additional adverse collateral 

consequences. Al-’Owhali v. United States, 36 F.4th 461, 467 (2d Cir. 

2022).

Gomez is currently serving three concurrent terms of life 

imprisonment for three separate counts, to be followed by a sixtymonth sentence for the § 924(c) conviction that he now challenges 

through his § 2255 motion. He received his sentence when the 

Guidelines were understood to be mandatory. See United States v. 

Booker, 543 U.S. 220, 245 (2005) (invalidating “the provision of the 

federal sentencing statute that makes the Guidelines mandatory”). 
9

The government argues that we should decline to consider the 

merits of Gomez’s challenge based on the concurrent sentence 

doctrine because Gomez is serving multiple unchallenged life 

sentences. Gomez responds that if his challenge were successful, “it is 

possible, even probable, that [he] would receive a sentence of less than 

life on Counts One, Two and Fifteen at a re-sentencing.” Appellant’s 

Supp. Br. 34. Therefore, “the use of the concurrent sentencing doctrine 

as grounds to bar a resentencing would have the very real 

consequence of denying Mr. Gomez ... a chance at a sentence of less 

than life imprisonment.” Id.

We cannot conclude that Gomez’s “collateral challenge will 

have no effect on the time [he] must remain in custody.” Al-’Owhali, 

36 F.4th at 467. If his challenge were successful, the district court 

would have “discretion to select the appropriate relief from a menu 

of options,” which may include resentencing for sentences given 

when the Guidelines were mandatory. United States v. Peña, 58 F.4th 

613, 619 (2d Cir. 2023); see United States v. Augustin, 16 F.4th 227, 232 

(6th Cir. 2021) (“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 mandatoryminimum sentence and then is able to consider the statutory 

sentencing factors for the first time.”) (internal quotation marks and 

citation omitted). We decline to avoid the merits of Gomez’s challenge 

based on the concurrent sentence doctrine. 

B

The government next argues that Gomez’s challenge is 

procedurally defaulted. “Where a defendant has procedurally 

defaulted a claim by failing to raise it on direct review, the claim may 

be raised in habeas only if the defendant can first demonstrate either 
10

cause and actual prejudice, or that he is actually innocent.” Bousley v. 

United States, 523 U.S. 614, 622 (1998) (internal quotation marks and 

citations omitted). 

In this case, however, the government did not raise procedural 

default in the district court and therefore that defense is either waived 

or forfeited. Appellee’s Supp. Br. 11 (acknowledging that the 

government has forfeited the procedural default defense); see United 

States v. Canady, 126 F.3d 352, 360 (2d Cir. 1997) (“[B]ecause the 

government failed to raise its procedural default defense in the 

district court, it is precluded from doing so now.”); Cone v. Bell, 556 

U.S. 449, 486 n.6 (2009) (Alito, J. concurring) (“Unlike exhaustion, 

procedural default may be waived if it is not raised as a defense.”).

We decline to avoid reaching the merits of Gomez’s challenge on the 

basis of procedural default. 

C

We also cannot conclude, assuming the district court erred, that 

any error was harmless. “[I]n the context of a § 924(c) conviction, 

where a jury’s finding of guilt is based on two predicates, only one of 

which can lawfully sustain guilt, we will find the error harmless when 

the jury would have found the essential elements of guilt on [an] 

alternative charged predicate that would sustain a lawful conviction 

beyond a reasonable doubt.” Stone v. United States, 37 F.4th 825, 831 

(2d Cir. 2022) (internal quotation marks omitted). We cannot be 

certain that the jury did not convict based on a Pinkerton theory. 

Assuming that it did, whether the Pinkerton instruction was harmless 

depends on the answer to the merits question before us. We therefore 

must turn to the merits.
11

II

Gomez argues that his § 924(c) conviction is invalid because it 

may have rested on an impermissible conspiracy predicate and, even 

if it did not, the district court’s Pinkerton instruction may have led the 

jury to find Gomez guilty of substantive murder by virtue of his 

participation in a conspiracy. We conclude that because the jury 

found that Gomez committed both substantive murder and murder 

conspiracy, there is no risk that the § 924(c) conviction was based on 

an impermissible predicate. The Pinkerton instruction does not alter 

this conclusion. Even if the jury relied on a Pinkerton theory to find 

that Gomez committed substantive murder, it still would qualify as a 

permissible predicate crime of violence. 

A

Section 924(c) criminalizes the possession or use of a firearm 

“during and in relation to any crime of violence ... for which the 

[defendant] may be prosecuted in a court of the United States.” 

18 U.S.C. § 924(c)(1)(A). “Crime of violence” is defined in two 

statutory provisions. First, the elements clause defines a crime of 

violence as a felony that “has as an element the use, attempted use, or 

threatened use of physical force against the person or property of 

another.” Id. § 924(c)(3)(A). Second, the residual clause defines a 

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.” Id. § 924(c)(3)(B).

In Davis, the Supreme Court held the residual clause to be 

unconstitutionally vague. See 139 S. Ct. at 2336. As a result, a § 924(c) 

conviction remains valid only if it rests on a predicate offense that 

satisfies the definition in the elements clause. In other words, the 

underlying crime of violence must have “as an element the use, 
12

attempted use, or threatened use of physical force against the person 

or property of another.” 18 U.S.C. § 924(c)(3)(A).

To determine whether a predicate crime satisfies the elements 

clause, courts “employ what has come to be known as the ‘categorical 

approach.’” United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018) (quoting 

Taylor v. United States, 495 U.S. 575, 600 (1990)). The categorical 

approach requires a court to identify “the minimum conduct 

necessary for a conviction of the predicate offense ... and then to 

consider whether such conduct amounts to a crime of violence under 

§ 924(c)(3)(A).” Id. at 56. “For this analysis, we examine only the 

elements of the crime of conviction” because “the defendant’s own 

conduct in committing the crime is irrelevant.” Collier v. United States, 

989 F.3d 212, 220 (2d Cir. 2021). 

For a racketeering offense, we consider whether the 

racketeering offense is itself based on a predicate act that qualifies as 

a crime of violence. A racketeering offense is a “crime of violence 

when the defendant is charged under a predicate that is a crime of 

violence but [it is] not a crime of violence when the RICO charge is 

based on non-violent predicates.” United States v. Laurent, 33 F.4th 63, 

88 (2d Cir. 2022). “If one of the two racketeering acts required for a 

substantive RICO violation conforms to the definition of a crime of 

violence,” then the “RICO violation ... qualif[ies] as a crime of 

violence.” Id. at 88.3

3 The rule for racketeering offenses is an application of the “modified 

categorical approach.” Under that approach, when “a criminal statute sets 

forth any element of the offense in the alternative, such that the minimum 

elements of conviction can be proven in discrete ways, some necessarily 

requiring the use of force and some not, the statute may be deemed 

‘divisible.’ ... Under the modified categorical approach, a court looks to the 

charging instrument or other authoritative documents to determine 
13

B

Gomez argues that his § 924(c) conviction is invalid because 

“(1) the jury was not instructed that it needed to agree unanimously 

on a particular predicate offense, and (2) the verdict does not indicate 

on which predicate offense the jury based its § 924(c) conviction.” 

Appellant’s Supp. Br. 16-17. As a result, “there is no way to know 

from the jury’s general verdict whether it found Mr. Gomez guilty of 

the [§] 924(c) count by virtue of the [now-invalid] conspiracy to 

murder racketeering act, or by virtue of the substantive murder 

racketeering act. Id. at 23.

We disagree. The jury returned a verdict indicating that it 

found that both the murder of and the conspiracy to murder Santiago 

had been proven beyond a reasonable doubt. Add. 32. Accordingly,

the racketeering conviction is for a crime of violence because one of 

its predicates—murder under New York law—qualifies as a crime of 

violence. See Laurent, 33 F.4th at 88. Moreover, Gomez’s § 924(c) 

conviction remains valid because there is no “reasonable probability” 

that the jury based the § 924(c) conviction only on the conspiracy

when it determined that the murder had also been proved. Id. at 86 

(quoting United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010)). “[W]e 

can be confident that the jury would have convicted” even if it had 

been instructed that the § 924(c) conviction could be based only on the 

murder. Id. at 87 (internal quotation marks and alteration omitted).

Gomez argues that the district court’s instruction on Pinkerton

liability alters this analysis and renders his § 924(c) conviction invalid. 

“Given the court’s instruction on Pinkerton, it is further possible that 

whether a defendant necessarily was charged with or convicted of a crime 

involving the use of force under the subsection.” Laurent, 33 F.4th at 85

(internal quotation marks, footnote, and emphasis omitted).
14

the jury’s finding on the substantive racketeering act [of murder]

rested on its finding that Mr. Gomez was a member of a conspiracy.” 

Appellant’s Supp. Br. 22. Because conspiracy to commit a crime of 

violence does not itself qualify as a crime of violence, see Barrett, 937 

F.3d at 128, Gomez argues that Pinkerton liability for a crime of 

violence should not qualify either.

We again disagree. In Pinkerton, the Supreme Court held that a 

criminal defendant may be liable for a substantive offense—apart 

from a conspiracy charge—based on the actions of the defendant’s 

co-conspirators. A Pinkerton instruction “informs the jury that it may 

find a defendant guilty of a substantive offense that he did not 

personally commit if it was committed by a coconspirator in 

furtherance of the conspiracy, and if commission of that offense was 

a reasonably foreseeable consequence of the conspiratorial 

agreement.” United States v. McCoy, 995 F.3d 32, 63 (2d Cir. 2021), 

judgment vacated on other grounds, 142 S. Ct. 2863 (2022). The Pinkerton 

theory of liability deems the defendant to have performed the acts of 

his co-conspirators. “[S]o long as the partnership in crime continues, 

the partners act for each other in carrying it forward. It is settled that 

‘an overt act of one partner may be the act of all.’” Pinkerton, 328 U.S. 

at 646 (quoting United States v. Kissel, 218 U.S. 601, 608 (1910)).

Because under a Pinkerton theory the defendant is convicted of 

the substantive offense—not of conspiring to commit the offense—he 

has committed a crime of violence if the substantive offense is a crime 

of violence. For this reason, every circuit to address the issue has held 

that Pinkerton liability for a crime of violence can support a § 924(c) 

conviction. See United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 

2021) (explaining that because “[d]efendants found guilty of armed 

bank robbery under either a Pinkerton or aiding-and-abetting theory 

are treated as if they committed the offense as principals,” “Davis does 
15

not conflict with or undermine the cases upholding § 924(c) 

convictions based on Pinkerton liability”); United States v. Woods, 

14 F.4th 544, 552 (6th Cir. 2021) (“Finding the [defendants] guilty 

through a theory of Pinkerton liability is still permissible as long as the 

underlying predicate offenses qualify as crimes of violence under the 

§ 924(c) elements clause.”); United States v. Gillespie, 27 F.4th 934, 

941-42 (4th Cir. 2020) (“It was precisely this still-valid theory of 

Pinkerton liability that the jury embraced when finding Gillespie 

guilty of the challenged § 924(c) conviction.”); United States v. 

Hernández-Román, 981 F.3d 138, 145 (1st Cir. 2020) (“We have held that 

where, as here, Pinkerton liability is in play, the defendant does not 

need to have carried the gun himself to be liable under section 

924(c).”) (internal quotation marks omitted); United States v. Howell, 

No. 18-3216, 2021 WL 3163879, at *4 (3d Cir. July 27, 2021) (“[G]uilt 

may nonetheless be found for the § 924(c) offense under Pinkerton

based on a coconspirator who also completed the armed Hobbs Act 

robbery.”).

We agree with those circuits. Indeed, in summary orders, we 

have already reached the same conclusion. We have explained that 

Pinkerton liability does not “somehow transform [a] conviction for 

substantive bank robbery into one for bank robbery conspiracy, 

implicating the residual-clause concerns explored in Davis,” United 

States v. Blanco, 811 F. App’x 696, 701 n.2 (2d Cir. 2020), and that a 

“conviction under Pinkerton or an aiding-and-abetting theory simply 

does not transform a substantive crime of murder into a murder 

conspiracy,” Sessa v. United States, No. 20-2691, 2022 WL 1179901, at 

*2 (2d Cir. Apr. 21, 2022). And we have articulated the closely related 

conclusion that aiding and abetting a crime of violence suffices for a 

§ 924(c) conviction. “If the underlying offense is a crime of violence, 

it is a predicate for § 924(c) liability; if the defendant aided and abetted 
16

that underlying offense, he is guilty of the underlying offense,” we 

have explained, and has been “convicted of crimes that are proper 

predicates for § 924(c) liability.” McCoy, 995 F.3d at 58.4 Similar to 

Pinkerton liability, the law imputes the acts of the principal to an aider 

and abettor. Thus, “[b]ecause an aider and abettor is responsible for 

the acts of the principal as a matter of law, an aider and abettor of a 

Hobbs Act robbery necessarily commits all the elements of a principal 

Hobbs Act robbery.” In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016). 

We see no reason for a different conclusion here. Even if the 

jury found Gomez guilty of murder based on a Pinkerton theory, 

Gomez’s § 924(c) conviction would remain valid because the acts of 

his co-conspirators are imputed to him. See Pinkerton, 328 U.S. at 646 

(“It is settled that an overt act of one partner may be the act of all.”)

(internal quotation marks omitted). That means the jury necessarily 

found that Gomez committed each element of the substantive offense

of intentional murder under New York law. 

Applying the modified categorical approach, we identify the 

minimum criminal conduct necessary for a conviction of seconddegree murder under New York law and determine whether that 

conduct “has as an element the use, attempted use, or threatened use 

of physical force.” 18 U.S.C. § 924(c)(3)(A). In identifying the 

minimum criminal conduct, we “focus on the intrinsic nature of the 

offense rather than on the circumstances of the particular crime.” 

United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006). 

We have previously held that, in New York, “second-degree 

murder is categorically a crime of violence under § 924(c).” Stone, 

4 In McCoy, we reaffirmed on remand that the completed Hobbs Act 

robbery—tried on an aiding-and-abetting theory—remained a valid 

§ 924(c) predicate. United States v. McCoy, 58 F.4th 72, 74 (2d Cir. 2023).
17

37 F.4th at 833 (considering N.Y. Penal Law § 125.25(1)). New York 

law provides that a “person is guilty of murder in the second degree

when ... [w]ith intent to cause the death of another person, he causes 

the death of such person or of a third person.” N.Y. Penal Law 

§ 125.25(1).

Second-degree murder under New York law is categorically a

crime of violence because the “knowing or intentional causation of 

bodily injury necessarily involves the use of physical force.” United 

States v. Castleman, 572 U.S. 157, 169 (2014); see also United States v. 

Scott, 990 F.3d 94, 100 (2d Cir. 2021) (explaining that it would be 

“illogical” to conclude that second-degree murder under N.Y. Penal 

Law § 125.25(1) was not “a categorically violent crime”).

Even if the jury found Gomez to have committed seconddegree murder on a Pinkerton theory, the law deems him to have 

committed the acts of his co-conspirators. Accordingly, his 

racketeering conviction is for a crime of violence and his § 924(c) 

conviction rests on a valid predicate. 

CONCLUSION

We conclude that Gomez’s conviction for use or carrying of a 

firearm in relation to a crime of violence, in violation of 18 U.S.C. 

§ 924(c), rested on a valid predicate crime of violence. We affirm the 

judgment of the district court.