|USDCSDNY UNITED STATES DISTRICT COURT DOCUMENT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED CC DOC #: _ JOSE M. SANTIAGO, ome Petitioner, 16.CV 4803 (CM) -against- 98 CR 290-01 (CM) UNITED STATES OF AMERICA, □

Respondent. DECISION AND ORDER DENYING PETITIONER’S MOTION FILED PURSUANT

ASKING THE COURT TO VACATE HIS 18 U.S.C. 924(c) FIREARM CONVICTION McMahon, J:: On March 31, 1999, Santiago broke into a one-bedroom basement apartment in Westchester County, New York and there shot to death Efraim Torres in the presence of Torres’s wife and two small children. (03/10/2000 Plea Transcript at 18:16-20:11). A self-described member of the Latin Kings, Santiago killed Torres after having previously and unsuccessfully attempted to take his life for stabbing another member of the Latin Kings. Jd. On March 10, 2000, after the Government had noticed its intent to pursue a death sentence, Santiago pleaded guilty to three counts of an indictment arising from the murder: Conspiracy To Murder In Aid of Racketeering, in violation of

(a)(5) (Count 1); Murder In Aid of Racketeering, in violation of

(a)(1) (Count 2); and Use, Carrying, and Possession of a Firearm, in furtherance of a crime of violence, in violation of

(c)(1)(A)(i) (Count 3). The predicate “crimes of violence” for Count 3 were both Count 1 and Count 2. (See Indictment at 5 (ECF. No. 62); 03/10/2000 Plea Tr. at 14:15-24). In his plea allocution before the Court, Santiago stated, “I’m a member of the Latin Kings and... I went... to kill Efraim Torres.” (/d. at 20:17-19). After the Court asked, “And did you, in fact,

kill Efraim Torres?” Santiago replied, “Yes, I did.” And after the Court asked in turn, “And did you do that with a nine[-}millimeter gun .. . as part of and in furtherance of the mission of the Latin Kings . . . [and] to help [ ] maintain or solidify your position within the Latin Kings,” to each question Santiago replied, “I did.” (Ud. at 20:20-21:10). On April 26, 2000, the Court sentenced Santiago to a term of imprisonment of 50 years, specifically comprised of 10 years on Count 1, 45 years on Count 2, and five years on Count 3, with the sentence on Count | to run concurrent to the sentence on Count 2 and the sentence on Count 3 to run consecutive to the sentence on Count 2. Before the Court is Santiago’s motion, filed pursuant to

, which raises one issue: Santiago contends that his conviction on Count 3 for Use, Carrying, and Possession of a Firearm, in violation of

(c)(1)(A)(i), should be vacated because neither conspiracy to murder in aid of racketeering in violation of

(a)(5) nor murder in aid of racketeering in violation of

(a)(1) is a “crime of violence” under 18 ‘

U.S.C. § 924(c)’s force clause, following United States v. Johnson,

(2015), and its progeny. Santiago’s motion is denied. Santiago’s conviction on Count 3 was premised on two predicate offenses, the crimes charged in Count 1 and Count 2. In Count 2, Santiago was charged with and pleaded guilty to murder in aid of racketeering in violation of

(a)(1), which the Second Circuit Court of Appeals has held to be a categorical crime of violence under

(c)(3)(A)’s force clause, where the predicate violent crime, as here, is murder in the second degree, in violation of New York Penal Law § 125.25. See United States v. Scott,

(2d Cir.), cert. denied,

(2021) (After rehearing the case en banc, we reject this

reasoning, which, carried to its logical—or illogical—conclusion, would preclude courts from recognizing even intentional murder as a categorically violent crime because, presumably, it is just as possible for a defendant to cause a person's death by omission when the defendant's specific intent is to kill, see

(1) (second-degree murder), as when his specific intent is to cause serious physical injury, see

§ 125.20(1) (first-degree manslaughter). We decline to take the law down a path leading so far from the violent reality of these two most serious, intentionally injurious homicide crimes.). Santiago’s petition is dismissed. The Court declines to issue a certificate of appealability because there has been no “substantial showing of the denial of a constitutional right.”

(c)(2); see United □ States v. Perez,

(2d Cir. 1997). Further, the Court finds, pursuant to

(a)(3) that any appeal from an order denying Santiago’s motion would not be taken in . good faith. See Feliz v. United States, No. 01-cv-5544,

, at *7 (S.D.N.Y. Aug. 22, 2002). This constitutes the decision and ordgr of the Court. ~ - Dated: January 25, 2022 hin Sn fick "District Court Judge