06-5319-cr USA v. Gomez 1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2007
4 (Argued: May 6, 2008 Decided: September 11, 2009)
5 Docket No. 06-5319-cr (L), 06-5690-cr (XAP), 06-5697-cr (CON)
6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
7 UNITED STATES OF AMERICA,
8 Appellee-Cross-Appellant,
9 - v. -
10 ARCENY GOMEZ, 11 12 Defendant-Appellant-Cross-Appellee, 13 14 DANNY REYES, 15 16 Defendant-Appellee. 17 18 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 19 20 B e f o r e: WINTER and HALL, Circuit Judges.*
21 Appeal from judgments of conviction and sentence entered in
22 the United States District Court for the Southern District of New
23 York (Lawrence M. McKenna, Judge). We reverse on the cross-
24 appeal because there was no plain error in the jury instruction
25 regarding the Hobbs Act requirement of an effect on interstate
26 commerce and the district court erred as to the applicable
27 mandatory minimum sentence. We affirm on Gomez’s appeal.
* The Honorable Louis F. Oberdorfer, United States District Judge for the District of the District of Columbia, sitting by designation withdrew from consideration of this matter. Pursuant to Second Circuit Local Rule 0.14(b), the matter is being decided by the two remaining members of the panel.
1 1 LAURIE A. KORENBAUM, Assistant United States 2 Attorney for the Southern District of New 3 York (Michael J. Garcia, United States 4 Attorney, on the brief, Katherine Polk 5 Failla, Assistant United States Attorney, of 6 counsel), United States Attorney’s Office for 7 the Southern District of New York, New York, 8 New York, for Appellee-Cross-Appellant. 9 10 JOHN F. KALEY, Doar Rieck Kaley & Mack, New 11 York, New York, for Defendant-Appellant- 12 Cross-Appellee. 13 14 PATRICK J. JOYCE, New York, New York, for 15 Defendant-Appellee. 16 17 18 WINTER, Circuit Judge:
19 Arceny Gomez appeals from his conviction by a jury after a
20 trial before Judge McKenna. He, along with Danny Reyes, who did
21 not appeal but whose sentence is a subject of the government’s
22 cross-appeal,1 was convicted of: (i) conspiring to commit a Hobbs
23 Act robbery in violation of 18 U.S.C. § 1951(a); (ii) committing
24 a Hobbs Act robbery (or aiding and abetting thereof) in violation
25 of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2; (iii) conspiring to
26 possess with intent to distribute one kilogram of cocaine in
27 violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and (iv) using
28 and carrying (or the aiding and abetting thereof) a firearm
29 during and in relation to a crime of violence and a drug
30 trafficking crime in violation of 18 U.S.C. § 924(c) and 18
31 U.S.C. § 2.
1 For convenience, we refer to the government’s appeal as to Reyes and cross-appeal as to Gomez collectively as a cross- appeal.
2 1 After the verdict, the district court vacated both Hobbs Act
2 convictions on the ground that the evidence of an effect on
3 interstate commerce was insufficient as a matter of law. Gomez
4 appeals from his conviction and sentence on the Section 924(c)
5 charge. The government cross-appeals from the district court’s
6 vacating of the Hobbs Act convictions and failure to impose a ten
7 year mandatory minimum sentence on the Section 924(c) count. We
8 affirm on Gomez’s appeal and reverse on the government’s cross-
9 appeal.
10 BACKGROUND
11 a) The Evidence
12 Because the jury convicted Gomez and Reyes on all counts, we
13 view the evidence in the light most favorable to the government.
14 See United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008).
15 Gomez and Reyes, along with two individuals named Ray Solis
16 and Alfredo DeJesus, engaged in a botched robbery of a drug
17 dealer named Rogelio Rivera, during which Rivera was shot and
18 killed. The government’s case consisted principally of testimony
19 from DeJesus, post-arrest statements made by Gomez and Reyes, and
20 telephone records and documents linking the conspirators around
21 the time of the robbery and murder.
22 DeJesus testified that he discussed with Gomez the plan for
23 the robbery, which they intended would net three kilos of
24 cocaine. Solis was to pose as a drug buyer, using Gomez’s black
3 1 Acura because they believed that it was the kind of car a drug
2 dealer would use. The plan was to offer Rivera fake money for
3 the drugs, and, while Rivera inspected the money, draw their guns
4 and rob him of the cocaine.
5 Reyes, who lived both in Connecticut and the Bronx, was the
6 defendants’ connection with Rivera. He had sufficient prior
7 contact with Rivera that he could set up the proposed deal to
8 acquire cocaine and that Rivera trusted him to broker the deal
9 with Solis, a person Rivera had not previously met. While the
10 four were on their way to a restaurant in the Bronx where they
11 were to meet with Rivera, they stopped their cars and got out.
12 According to DeJesus, Solis and Reyes adjusted their waistbands
13 in a manner that suggested that each had a gun. Thereafter,
14 Solis and Reyes got into the Acura and continued driving while
15 Gomez and DeJesus followed in a white van. Solis and Reyes
16 picked up Rivera near the restaurant. Those three then traveled
17 together in the Acura to the site of the intended robbery.
18 DeJesus and Gomez followed in the white van. Reyes and Solis
19 entered a building with Rivera, while DeJesus and Gomez stayed
20 outside to serve as lookouts during the intended robbery. After
21 a short time, a shot rang out. Solis and Reyes ran out of the
22 building and drove away in the Acura, while DeJesus and Gomez
23 followed in the van. When they stopped to switch cars, Reyes
24 indicated that Solis had shot Rivera. Solis said that the
4 1 robbery had netted only one kilogram of cocaine.
2 When Reyes and Gomez were interviewed after their arrests,
3 each substantially corroborated DeJesus’s account of the robbery.
4 Reyes’s statement indicated that the plan had been for all the
5 perpetrators to use firearms in the robbery.
6 In order to show Gomez’s intent in anticipation of his
7 testimony outlined below, DeJesus testified as to several other
8 drug robberies committed by Gomez, including one in which he and
9 Gomez had netted 1.5 kilograms of heroin in or around February
10 1998, and another in the spring of 1998 involving one kilogram of
11 cocaine. Finally, DeJesus described a third robbery that was
12 planned to net fifty kilograms of cocaine. DeJesus discussed
13 this robbery with Gomez and the other perpetrators, hoped to be
14 taken along, but ultimately he did not go. DeJesus testified
15 that Gomez told him that the robbery was “triumphant” and that he
16 and Gomez celebrated its success. Gomez then gave DeJesus four
17 kilograms of cocaine that DeJesus sold to a friend of his.
18 Gomez testified in his own defense and stated that while he
19 did participate in the robbery of Rivera, he did so only as a
20 paid informant for the Drug Enforcement Administration (“DEA”).
21 Gomez had indeed been acting as an informant for the DEA in some
22 matters but for several days did not inform his handlers about
23 the robbery in question. He sought to explain this delay by
24 stating that his DEA handler did not speak Spanish well and that
5 1 an officer he worked with in the New York Police Department
2 (“NYPD”) had given Gomez a disconnected pager number. In
3 response, the government presented testimony from Gomez’s NYPD
4 handler indicating that the officer’s pager number had not
5 changed or been disconnected and that Gomez could have informed
6 him of the robbery at a debriefing session a few days after the
7 robbery. Instead, Gomez did not mention the robbery until he had
8 been arrested for it.
9 b) Jury Instructions, Post-Trial Proceedings, and Sentencing
10 The judge gave several jury instructions pertinent to this
11 appeal.
12 Regarding the interstate commerce element of the Hobbs Act2
13 conspiracy count, the district court told the jury that:
14 [T]he government must prove . . . that . . . had the 15 robbery been completed interstate commerce would have 16 been or potentially would have been affected in some 17 way[,] even if the effect is slight . . . . Such 18 robbery need only affect interstate commerce in any way 19 or degree, even if the effect is only minimal . . . . 20 The government satisfies its burden of proving an 21 effect . . . if it proves beyond a reasonable doubt any
2 The Hobbs Act provides that:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a).
6 1 effect, whether it was harmful or not. 2 3 The court also instructed that:
4 Congress has determined that all narcotics activity, even 5 purely local narcotics activity, has a substantial effect on 6 interstate commerce. Thus, if you find that the object of 7 the robbery was to possess narcotics with the intent to 8 distribute them, you may find this element satisfied. 9 10 With respect to the substantive Hobbs Act count, the judge
11 referred the jury to the above-quoted instructions on the
12 conspiracy count. The judge also noted that substantive Hobbs
13 Act robbery requires a taking of property, “by means of actual or
14 threatened force . . . .”
15 With respect to the Section 924(c)3 count, the district
16 court charged the jury that “[i]n order to convict the defendant
17 you must find that the government has proven beyond a reasonable
18 doubt his involvement in at least one of the underlying crimes of
19 violence or the drug-trafficking crime.” The judge did not
3 Title 18 U.S.C. § 924(c)(1)(A) states in pertinent part:
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm . . . shall, in addition to the punishment provided for such crime of violence or drug trafficking crime –-
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
7 1 instruct the jury that it had to be unanimous as to which crime
2 was the predicate for a Section 924(c) conviction.
3 The jury reached a guilty verdict on all counts. Gomez and
4 Reyes moved to set aside their convictions under the Hobbs Act on
5 the grounds that there was legally insufficient evidence of the
6 requisite effect on interstate commerce. The district court
7 agreed and vacated the verdict on both Hobbs Act counts.
8 Gomez alone argued that his Section 924(c) conviction should
9 also be vacated because the jury was not instructed that it had
10 to be unanimous on the selection of a specific predicate crime
11 and because the vacating of the Hobbs Act counts had eliminated
12 two of the three possible predicates, rendering it impossible to
13 know which alleged predicate(s) the jury had found. Although the
14 district court agreed that the jury should have been instructed
15 that they had to be unanimous on a particular predicate, it found
16 that there was no need to vacate the Section 924(c) conviction.
17 It reasoned that had the jury been properly instructed, it would
18 have selected the remaining drug distribution count as a
19 predicate.
20 In sentencing Reyes, the district court calculated his base
21 offense level using the three kilograms of cocaine that the
22 robbers had planned to steal rather than the one kilogram
23 actually obtained. This resulted in a base offense level of 28
24 for Reyes.
8 1 On Reyes’s Section 924(c) convictions, the district court
2 imposed the five year minimum sentence for use of a gun rather
3 than the ten year mandatory minimum sentence for discharging it.
4 See 18 U.S.C. § 924(c)(1)(A); supra note 3. The district court
5 noted that the jury had not been asked to specify which gun(s)
6 was the basis for the Section 924(c) convictions. The court then
7 reasoned that because there was some evidence that two guns were
8 involved but only one was discharged, it was impossible to say
9 whether the jury had convicted Reyes under Section 924(c) for the
10 gun that was discharged. Accordingly, the five year sentence for
11 mere use applied. The district court ultimately imposed a total
12 sentence of 132 months -- 72 months was based on the drug
13 conspiracy count and a consecutive 60 months was based on the
14 Section 924(c) count.
15 With respect to Gomez, the district court began by factoring
16 in the three kilograms of cocaine contemplated in planning the
17 robbery. The court, however, rejected the government’s argument
18 that all of the drugs from Gomez’s alleged prior drug robberies
19 should be used in calculating Gomez’s guidelines sentence. The
20 district court specifically rejected DeJesus’s testimony
21 regarding the robbery involving one kilogram of cocaine and the
22 robbery involving fifty kilograms of cocaine, finding that these
23 events were “not described with adequate specificity.” The
24 district court, however, did factor in the February 1998 robbery
9 1 involving 1.5 kilograms of heroin. The district court also
2 followed the logic it applied to Reyes to hold that only the five
3 year minimum sentence under Section 924(c) should apply to Gomez.
4 The district court ultimately sentenced Gomez to 162 months --
5 102 months was based on the drug conspiracy count and a
6 consecutive 60 months was on the Section 924(c) count.
7 DISCUSSION
8 a) The Hobbs Act Counts
9 The government’s cross-appeal seeks to reinstate Reyes’s and
10 Gomez’s convictions on the conspiracy and substantive Hobbs Act
11 counts. To sustain a Hobbs Act conviction, there must be
12 evidence that the underlying act affected interstate commerce.
13 See United States v. Parkes, 497 F.3d 220, 227 (2d Cir. 2007).
14 The government argues that any error in the jury instructions was
15 harmless and that the evidence regarding the interstate commerce
16 element of the Hobbs Act offenses was sufficient. We agree.
17 Because no objection was made at trial to the interstate
18 commerce instructions, plain error analysis applies. See United
19 States v. Kaplan, 490 F.3d 110, 124 (2d Cir. 2007). A finding of
20 plain error requires “(1) error, (2) that is plain, and (3) that
21 affects the defendant's substantial rights. If all three
22 conditions are met, we may exercise our discretion to notice the
23 error, provided that the error seriously affects the fairness,
24 integrity, or public reputation of judicial proceedings.” United
10 1 States v. Carter, 489 F.3d 528, 537 (2d Cir. 2007) (citations
2 omitted). No error in the present case affected substantial
3 rights.
4 We first identify any error in the jury instructions. The
5 pertinent portion reads, “Congress has determined that all
6 narcotics activity, even purely local narcotics activity, has a
7 substantial effect on interstate commerce. Thus, if you find
8 that the object of the robbery was to possess narcotics with the
9 intent to distribute them, you may find this element satisfied.”
10 (emphasis added). The district court’s reference to a
11 Congressional determination was to Section 801(3)-(6) of the
12 Controlled Substances Act, which contains legislative findings
13 that both intrastate and interstate drug trafficking affect
14 interstate commerce. See 21 U.S.C. § 801(3)-(6). In fashioning
15 these instructions, the district court may have reasoned that,
16 given the Congressional findings, robberies involving drugs or
17 their proceeds are per se within the affecting-commerce
18 requirement of the Hobbs Act, a conclusion we later adopted in
19 United States v. Fabian, 312 F.3d 550, 555-56 (2d Cir. 2002).
20 However, to the extent that Fabian held that proof that a robbery
21 involved drugs or proceeds thereof automatically satisfied the
22 interstate commerce element of the Hobbs Act as a matter of law,
23 thereby taking the issue from the jury, it was overruled by
24 United States v. Parkes, 497 F.3d 220 (2d Cir. 2007), in light of
11 1 intervening Supreme Court and other circuit decisions. Id. at
2 229-30. Parkes held that “[p]roving an effect on interstate
3 commerce is . . . an element of a Hobbs Act offense, which must
4 be proven beyond a reasonable doubt to a jury.” Id. at 227.
5 The district court’s instructions quoted above were
6 consistent with Parkes in that they used the permissive “may” and
7 therefore described only what the jury might find rather than
8 taking the issue from it entirely. The error in the instruction
9 lay in referencing Congressional findings. This reference may
10 have misled the jury into believing that those findings were
11 binding upon it as a trier of fact. This view is not consistent
12 with Parkes. See id. Whether this error was “plain” is a close
13 question, but one that we need not reach because it was harmless
14 and for that reason did not impair the defendants’ substantial
15 rights.
16 The error in the jury instruction was in its potential to
17 mislead the jury into believing that it need not make an
18 independent finding regarding the element of an effect on
19 interstate commerce. Such omitted element errors are subject to
20 harmless error analysis. See Neder v. United States, 527 U.S. 1,
21 10 (1999). In such a case, we “consider the weight of trial
22 evidence bearing on the omitted element; and if such evidence is
23 overwhelming and essentially uncontroverted, there is no basis
24 for concluding that the error seriously affects the fairness,
12 1 integrity, or public reputation of judicial proceedings.” United
2 States v. Guevara, 298 F.3d 124, 126-27 (2d Cir. 2002) (citations
3 and quotation marks omitted) (considering an Apprendi error,
4 Apprendi v. New Jersey, 530 U.S. 466 (2000), where the jury did
5 not make a finding on an element).4 To sustain the conviction,
6 we must find that the jury would have returned the same verdict
7 beyond a reasonable doubt. See United States v. Jackson, 196
8 F.3d 383, 386 (2d Cir. 1999).
9 The government’s evidence regarding interstate commerce was
10 that the object of the robbery was three kilos of cocaine and
11 that one kilo was seized. This evidence was not controverted;
12 that is, no defendant challenged the object, fact, or result of
13 the robbery. Also uncontroverted was the fact that Reyes, who
14 occupied residences in both Connecticut and the Bronx, was known
15 to Rivera and trusted to the point that Rivera was willing to
16 deal with him and Solis -- a person Rivera did not know –- to
17 sell three kilograms of cocaine. The defendants’ claim here is
18 that the robbery’s object (the theft of multiple kilograms of
19 cocaine from a drug dealer) and/or result are insufficient as a
4 If the evidence regarding an omitted element is overwhelming but controverted, we have “conduct[ed] a two-part inquiry, searching the record in order to determine (a) whether there was sufficient evidence to permit a jury to find in favor of the defendant on the omitted element, and, if there was, (b) whether the jury would nonetheless have returned the same verdict of guilty.” United States v. Guevara, 298 F.3d 124, 127-28 (2d Cir. 2002) (citations omitted).
13 1 matter of law to constitute the requisite effect on interstate
2 commerce. We disagree.
3 It hardly needs repeating that the reach of the Hobbs Act is
4 coextensive with the full reach of Congressional power over
5 commerce, see Stirone v. United States, 361 U.S. 212, 215 (1960),
6 and that only “a very slight effect on interstate commerce” need
7 be shown. See United States v. Wilkerson, 361 F.3d 717, 726 (2d
8 Cir. 2004); see also 18 U.S.C. § 1951(a). Indeed, “[e]ven a
9 potential or subtle effect on commerce will suffice.” United
10 States v. Angelilli, 660 F.2d 23, 35 (2d Cir. 1981). In drug
11 trafficking cases, the requisite effect on interstate commerce
12 can be found either in the importation or interstate
13 transportation of drugs or even in the trafficking of particular
14 drugs in a “small but going enterprise” that handles product
15 almost exclusively transported into the United States from
16 outside the country and very little of which is produced in New
17 York. See Parkes, 497 F.3d at 231; see also United States v.
18 Vasquez, 267 F.3d 79, 87-88 (2d Cir. 2001). While making it
19 clear that it was not deciding the issue, the Court in Parkes
20 said in a footnote: “It may well be that a rational jury could
21 conclude that the interstate commerce element is satisfied by
22 proof that a robbery targeting drugs or proceeds of a drug
23 business that is purely intrastate.” Parkes, 497 F.3d at 231
24 n.10. Parkes also reminds us that “[t]he required evidence of an
14 1 effect need not take any particular form or be offered in any
2 particular quantum -- direct, indirect, or circumstantial
3 evidence could suffice. It is a case-by-case inquiry.” Id. at
4 231 n.11. Similarly, in Vasquez, a plain error case, we
5 expressly held that heroin trafficking “affects interstate
6 commerce, at the very least, regardless of where the raw
7 materials originate” and that any error in relevant jury
8 instructions regarding the commerce element could not have
9 affected the fairness, integrity, or public perception of the
10 proceeding, much less have amounted to a miscarriage of justice.
11 Vasquez, 267 F.3d at 90 (emphasis in original). Indeed, Parkes
12 itself held that a robbery of marijuana and $4000 in drug
13 proceeds, along with direct expert testimony, was sufficient to
14 establish the requisite nexus to interstate commerce. Parkes,
15 497 F.3d at 231.
16 The only evidence even arguably lacking was direct testimony
17 of an expert nature that cocaine is imported into the United
18 States5 and/or that any robbery of cocaine, wherever the source,
19 affects interstate commerce. Such expert testimony is
20 unnecessary because a reasonable juror is surely capable of
21 drawing the conclusion that a robbery undertaken with the object
22 of stealing from a drug dealer three kilos of cocaine -- and
5 Parkes involved marijuana, 497 F.3d at 225, which can be grown in the United States. Cocaine is exclusively foreign in origin.
15 1 which successfully yielded one kilo (i.e., a thousand grams or
2 multiple thousands of doses of cocaine) -- would have had at
3 least the required de minimus effect on interstate commerce. See
4 Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004)
5 (expert testimony unnecessary in cases where jurors “are as
6 capable of comprehending the primary facts and of drawing correct
7 conclusions from them as are witnesses possessed of special or
8 peculiar training” (quoting Salem v. U.S. Lines Co., 370 U.S. 31,
9 35 (1962)). The importation and interstate transportation of
10 cocaine, as well as the financial size of the cocaine trade, have
11 been routinely and copiously discussed by public officials,
12 candidates for office, and the news media for decades. In
13 addition, even the commercial effect of home-grown drugs, which
14 by reason of that origin distinguish them from cocaine, has been
15 described by the Supreme Court as “visible to the naked eye,”
16 Gonzales v. Raich, 545 U.S. 1, 28-29 (2005), such that we would
17 infer an effect on interstate commerce from purely domestic
18 production. Certainly, as Vaquez held, the absence of such
19 expert testimony would not constitute plain error. See 267 F.3d
20 at 87-90.
21 The analysis of proof of effect on interstate commerce is a
22 case-by-case inquiry, Parkes, 497 F.3d at 231 n.11, and such
23 proof need only demonstrate “a potential or subtle effect” on
24 interstate commerce. Angelilli, 660 F.2d at 35. Based on the
16 1 facts presented to the jury in this case, we find beyond a
2 reasonable doubt that the jury would have returned the guilty
3 verdict even absent the instruction that was given. See Jackson,
4 196 F.3d at 386. For that reason, we hold that the error in the
5 jury instruction was harmless.
6 Finally, although for the reasons stated we find no plain
7 error in the charge given, even if we were to determine that such
8 error existed, we would be hard pressed to find that the error
9 created an injustice. The lack of injustice is underlined by the
10 fact that the instructions were not challenged and the issue of
11 the sufficiency was preserved only by a general motion at the
12 close of the government’s case in which the words “interstate
13 commerce” were conspicuous by their absence. The timing and
14 general non-specific nature of the challenge is understandable.
15 Before verdict, any issue could have been quickly and
16 indisputably resolved, see Parkes, 497 F.3d at 231, destroying
17 any value on appeal.
18 We therefore overturn the vacating of the Hobbs Act counts.
19 b) Sufficiency of the Evidence for the Section 924(c) Count
20 There was no evidence that Gomez carried a weapon during the
21 robbery. However, he was charged with, and convicted of, aiding
22 and abetting a violation of Section 924(c), and, under 18 U.S.C.
23 § 2, he is punishable as a principal. Relying on United States
24 v. Medina, 32 F.3d 40 (2d Cir. 1994), Gomez challenges his
17 1 Section 924(c) conviction. Medina held that “a defendant who is
2 not present [at the crime] . . . cannot be said to aid and abet
3 the use or carrying of a firearm simply by aiding and abetting
4 the overall enterprise in which the firearm is employed.” Id. at
5 47. Gomez argues in the present matter that the evidence tying
6 him specifically to the use of firearms, as opposed to showing
7 merely his general involvement in the robbery, was legally
8 insufficient. We disagree.
9 It is clear from the facts in Medina that the words “not
10 present [at a robbery]” described a participant who was
11 geographically distant from the crime and played no supportive
12 role as the robbery took place. Here, by contrast, Gomez was
13 “present” as a lookout at the scene and played a critical
14 supportive role in the armed robbery. Accordingly, there was
15 easily sufficient evidence to convict Gomez for aiding and
16 abetting on the Section 924(c) count.
17 c) Jury Instructions on the Section 924(c) Count
18 A Section 924(c) conviction requires the trier of fact to
19 find that the use of a gun was “during and in relation to any
20 crime of violence or drug trafficking crime.” See 18 U.S.C. §
21 924(c)(1)(A); supra note 3. The predicate crimes alleged here
22 are those alleged in the two Hobbs Act counts and the single
23 cocaine trafficking count. Gomez argues that his Section 924(c)
24 conviction must be vacated because the jury was not instructed to
25 reach a unanimous agreement about which specific predicate crime
18 1 or crimes were the basis for that conviction. This argument
2 gained force when the convictions on two of the three predicate
3 crimes were vacated.
4 The failure to instruct the jury that it had to agree on a
5 specific predicate was likely error. See Richardson v. United
6 States, 526 U.S. 813, 818 (1999) (concluding that jury must
7 unanimously agree that defendant is guilty of each of the
8 predicate violations that together constitute a continuing
9 criminal enterprise under 21 U.S.C. § 848); compare 18 U.S.C. §
10 924(c) (referring to predicate “crime[s]”). Again, however,
11 there was no objection at trial, and plain error review applies.
12 See Santana-Madera v. United States, 260 F.3d 133, 139 (2d Cir.
13 2001).6 Indeed, a Richardson error is essentially an omitted
14 element -- in this case the requirement that each juror agree on
15 the predicate crime. See id.; see also United States v. Brown,
16 202 F.3d 691, 699 (4th Cir. 2000). The analysis we undertake
17 here is similar to that which we have already undertaken with
18 respect to the defendant’s claim regarding the interstate
19 commerce element. When an alleged error relates to an omitted
20 element of a jury charge, it is reviewed for harmlessness. And
6 In Santana-Madera, this Court concluded that a Richardson error was not a “structural error,” i.e., a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” 260 F.3d at 139 (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). As a result, we concluded that Richardson errors are subject to harmless error review. See 260 F.3d at 139.
19 1 if an error is harmless, then none of the defendant’s
2 “substantial rights” will have been affected and the error is
3 therefore not “plain.” Following Neder, therefore, we ask, “Is
4 it clear beyond a reasonable doubt that a rational jury would
5 have found the defendant guilty absent the error?” Neder v.
6 United States, 527 U.S. 1, 18 (1999).
7 The answer is obviously yes. Whatever force Gomez’s
8 argument may have had when the Hobbs Act convictions were vacated
9 vanishes now that they have been reinstated. Because the jury
10 validly reached a unanimous guilty verdict on every predicate
11 crime alleged, the erroneous jury instruction was necessarily
12 harmless. Accordingly, the Section 924(c) conviction stands.
13 d) Element vs. Sentencing Factor for the Section 924(c) Count
14 Title 18 U.S.C. § 924(c) provides a scale of differing
15 mandatory minimum sentences depending on whether the gun in the
16 crime was merely used, was brandished, or was actually
17 discharged. See supra note 3. Gomez is exposed to this scale
18 because of his conviction as an aider and abettor punishable as a
19 principal under 18 U.S.C. § 2.
20 Gomez argues that the application of a particular mandatory
21 minimum based on the facts of the crime is an element of the
22 crime that should therefore have been determined by the jury.
23 See United States v. Booker, 543 U.S. 220, 244 (2005). Gomez
24 acknowledges that a Supreme Court decision is directly to the
20 1 contrary. See Harris v. United States, 536 U.S. 545, 567-70
2 (2002). In Harris, a plurality of the court, and Justice Breyer
3 in concurrence, agreed that facts that trigger a mandatory
4 minimum sentence are not elements of the crime but are rather
5 sentencing factors of the sort that a judge may properly find.
6 Id. Indeed, Harris explicitly considered Section 924(c). Id.
7 Gomez contends that Harris has been undermined by subsequent
8 Supreme Court decisions such as Booker, 543 U.S. at 244 (holding
9 that any fact necessary to support a sentence exceeding the
10 maximum authorized by the facts established by a jury verdict
11 must be proved to a jury beyond a reasonable doubt). However, we
12 must still follow Harris. The Supreme Court has held that “if a
13 precedent of this Court has direct application in a case, yet
14 appears to rest on reasons rejected in some other line of
15 decisions, the Court of Appeals should follow the case which
16 directly controls, leaving to this Court the prerogative of
17 overruling its own decisions.” Agostini v. Felton, 521 U.S. 203,
18 237 (1997) (citation and alteration omitted) (quoting Rodriguez
19 de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
20 (1989)). Moreover, our Court has applied Harris even after
21 Booker. See e.g., United States v. Estrada, 428 F.3d 387, 389
22 (2d Cir. 2005) (relying on Harris to conclude that prior
23 narcotics convictions that triggered a mandatory life sentence
24 were not required to be proved to a jury beyond a reasonable
21 1 doubt). Accordingly, Harris still governs, and the Section
2 924(c) enhancement can properly be found by the sentencing court.
3 e) Section 924(c): Use or Discharge
4 The government cross-appeals from the district court’s
5 holding that Gomez and Reyes are subject only to the five-year
6 minimum sentence for use of a firearm rather than the ten-year
7 enhancement for discharge. See 18 U.S.C. § 924(c)(1)(A); supra
8 note 3. The district court concluded that because there was
9 evidence that only one gun was discharged but two guns may have
10 been used in the crime, it was unclear which gun or guns the jury
11 relied upon in convicting under Section 924(c). We disagree.
12 Although the jury was not asked to make a specific finding
13 regarding which gun or guns it was relying upon, Solis’s
14 discharge of a gun is undisputed. Apart from that murderous
15 discharge –- the effect of which proved the use of a gun beyond
16 any doubt -– the evidence of the use of guns consisted of
17 DeJesus’s testimony as to Solis and Reyes adjusting their
18 waistbands, Reyes’s post-arrest statement, and the necessity of
19 weapons in such a robbery. We believe it obvious that the
20 undisputed evidence that Solis killed Rivera with a gun was a
21 foundation for the jury’s Section 924(c) conviction. We see no
22 possibility that the jury would have disregarded this undisputed
23 fact to consider in its deliberations over the gun-use element
24 whether Reyes had a gun. We therefore order resentencing of
22 1 Gomez and Reyes.
2 f) Uncharged Robbery as Sentencing Enhancement
3 Gomez argues that the district court improperly enhanced his
4 sentencing range by four levels based on his alleged robbery of
5 1.5 kilograms of heroin. Gomez makes several attacks against the
6 procedure used by the district court, but each is meritless. In
7 particular, Gomez argues that the district court should not have
8 relied on DeJesus’s trial testimony. However, we have said, “The
9 sentencing court’s discretion is largely unlimited either as to
10 the kind of information it may consider, or the source from which
11 it may come . . . . A sentencing court is free to consider
12 hearsay evidence, evidence of uncharged crimes, dropped counts of
13 an indictment and criminal activity resulting in acquittal in
14 determining sentence.” United States v. Sisti, 91 F.3d 305, 312
15 (2d Cir. 1996) (citations and quotation marks omitted).
16 Gomez argues that he should have been given an opportunity
17 to cross-examine DeJesus at sentencing. The district court did
18 not abuse its discretion, however, given that Gomez’s trial
19 counsel had an opportunity to cross-examine DeJesus at trial.
20 See United States v. Williams, 247 F.3d 353, 359 (2d Cir. 2001)
21 (sentencing court under no duty to conduct “full-blown
22 evidentiary hearing”) (quoting United States v. Prescott, 920
23 F.2d 139, 143 (2d Cir. 1990)); United States v. Harris, 38 F.3d
24 95, 98 (2d Cir. 1994) (court found without merit defendant’s
25 objection to lack of opportunity to cross-examine witnesses
23 1 testifying at sentencing hearing where defendant “conced[ed] that
2 defendants have no right to confrontation at sentencing” and
3 “cite[d] no authority to support his claim that the defendant has
4 a right to cross-examine witnesses called to testify”).
5 Gomez also argues that it was unfair to rely on DeJesus’s
6 trial testimony as evidence at sentencing because the trial
7 testimony had been admitted only for a limited purpose: namely
8 proof of intent under Federal Rule of Evidence 404(b). The
9 evidence admitted at trial for the purpose of demonstrating
10 Gomez’s intent with respect to the robberies was relevant at
11 trial only if the jury also found that the robberies had actually
12 occurred. Likewise, the testimony regarding Gomez’s intent was
13 relevant at sentencing only if the robberies had occurred.
14 Therefore, the testimony was admitted at trial for the same
15 purpose for which it was used at sentencing.
16 Gomez further argues that it is simply improper for a
17 district court to find facts at sentencing. This argument is
18 squarely contradicted by Crosby. See United States v. Crosby,
19 397 F.3d 103, 112 (2d Cir. 2005)(concluding that the sentencing
20 judge is entitled to find all facts relevant to the sentencing).
21 CONCLUSION
22 We reverse on the government’s cross-appeal, reinstate the
23 Hobbs Act convictions, and remand for resentencing in accord with
24 this opinion. We affirm on Gomez’s appeal.