Opinion
14-4304-cr
02-05-2020
UNITED STATES OF AMERICA, Appellee, v. 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, FIDEL 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.
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.
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "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 5th day of February, two thousand twenty. PRESENT: DENNIS JACOBS, REENA RAGGI, DENNY CHIN, Circuit Judges.
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.).
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 to 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