14‐4133 United States v. Lin

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 14th day of February, two thousand 4 nineteen. 5 6 PRESENT: JON O. NEWMAN 7 DENNIS JACOBS, 8 Circuit Judges, 9 LEWIS A. KAPLAN,* 10 District Judge. 11 12 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X 13 UNITED STATES OF AMERICA, 14 Appellee,

* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation.

1 1 2 ‐v.‐ 14‐4133 3 4 XING LIN, 5 Defendant‐Appellant. 6 7 8 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X 9 10 FOR APPELLANT: Megan W. Benett, Kreindler & Kreindler 11 LLP, New York, NY. 12 13 FOR APPELLEE: Sarah K. Eddy, Assistant United States 14 Attorney, for Geoffrey S. Berman, United 15 States Attorney for the Southern District of 16 New York, New York, NY. 17 18 Appeal from a judgment of the United States District Court for the 19 Southern District of New York (Cedarbaum, J.).

20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 21 ADJUDGED AND DECREED that the judgment of the district court be 22 AFFIRMED.

23 Xing Lin was convicted after a jury trial on four counts, including murder 24 through use of a firearm during and in relation to a crime of violence, in violation 25 of

(j). We assume the parties’ familiarity with the underlying 26 facts, the procedural history, and the issues presented for review.

27 Section 924(j) prescribes certain penalties if a defendant causes the death of 28 a person while violating

(c).

(j). Section 924(c) 29 punishes “any person who, during and in relation to any crime of violence . . . for 30 which the person may be prosecuted in a court of the United States, uses or 31 carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 32

§ 924(c)(1). Section 924(c)(3) defines the “crime of violence” element of

2 1 section 924(c)(1)(A) as a felony that “(A) has as an element the use, attempted 2 use, or threatened use of physical force against the person or property of another, 3 or (B) that by its nature, involves a substantial risk that physical force against the 4 person or property of another may be used in the course of committing the 5 offense.” Id. § 924(c)(3).

6 Lin argues that the extortion underlying his section 924(j) conviction, as it 7 was committed, was not a “crime of violence.” We disagree.

8 Section 924(c)(3)(B) is not unconstitutionally vague because it applies to a 9 defendant’s case‐specific conduct, “with a jury making the requisite findings 10 about the nature of the predicate offense and the attending risk of physical force 11 being used in its commission.” United States v. Barrett,

(2d 12 Cir. 2018). If the conduct‐specific determination was not made by the jury, we 13 review the omission of the element from the jury charge for harmless error.

14 at 184. We reverse if “the record contains evidence that could rationally lead to 15 a contrary finding with respect to the omitted element.”

(quoting Neder v. 16 United States,

(1999)).

17 Violence was integral to Lin’s extortion scheme; no rational juror would 18 have concluded otherwise. The jury heard that Lin extorted $2,000 a month 19 from Huo Guang Chen by threatening him with violence. And when Chen later 20 ceased the payments on instruction from Chan Qin Zhou, Lin ordered Zhou 21 killed, and then ordered Chen to resume payments. Accordingly, Lin’s 22 extortion “involve[d] a substantial risk that physical force against the person or 23 property of another may be used in the course of committing the offense,” 18

(c)(3)(B), and the failure to submit the section 924(c)(3) inquiry to the 25 jury is harmless error beyond a reasonable doubt.

26 For the foregoing reasons, and finding no merit in Lin’s other arguments, 27 we hereby AFFIRM the judgment of the district court.

28 FOR THE COURT: 29 CATHERINE O’HAGAN WOLFE, CLERK

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