16‐1538‐cr United States v. Delcid

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 TO 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 Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 7th day of October, two thousand nineteen. 4 5 PRESENT: RAYMOND J. LOHIER, JR., 6 CHRISTOPHER F. DRONEY, 7 Circuit Judges, 8 JED S. RAKOFF, 9 District Judge. 10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 11 UNITED STATES OF AMERICA, 12 13 Appellee, 14 15 v. No. 16‐1538‐cr 16 17 RINGO DELCID, 18 19 Defendant‐Appellant.** 20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. ** The Clerk of Court is directed to amend the official caption to conform with the above. 1 FOR APPELLANT: MARY ANNE WIRTH, Bleakley 2 Platt & Schmidt, LLP, White 3 Plains, NY 4 5 FOR APPELLEE: ALIXANDRA E. SMITH, Assistant 6 United States Attorney (Jo Ann 7 M. Navickas, David C. Pitluck, 8 Assistant United States 9 Attorneys, on the brief), for 10 Richard P. Donoghue, United 11 States Attorney for the Eastern 12 District of New York, 13 Brooklyn, NY

14 Appeal from a judgment of the United States District Court for the Eastern

15 District of New York (I. Leo Glasser, Judge).

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

17 AND DECREED that the judgment of the District Court is AFFIRMED in part

18 and VACATED in part and REMANDED for resentencing.

19 Defendant‐appellant Ringo Delcid appeals from a judgment of conviction

20 in the District Court (Glasser, J.) following a guilty plea to two counts of

21 conspiracy to commit Hobbs Act robbery in violation of

(a) and

22 to one count of unlawful possession of a firearm during the commission of one of

23 the robbery conspiracies, a crime of violence, in violation of 18 U.S.C.

24 § 924(c)(1)(A). On appeal, Delcid principally argues that his conviction under §

25 924(c) should be vacated because conspiracy to commit Hobbs Act robbery is not 1 a crime of violence under the elements clause of that statute, § 924(c)(3)(A), and

2 because the residual clause of that statute, § 924(c)(3)(B), is unconstitutionally

3 vague. We assume the parties’ familiarity with the underlying facts and prior

4 record of proceedings, to which we refer only as necessary to explain our

5 decision to vacate in part and affirm in part and remand for resentencing.

6 After oral argument, we held this appeal in abeyance pending

7 determination of the petitions for certiorari filed in United States v. Hill,

(2d Cir. 2018), cert. denied,

(2019), and United States v. Barrett,

9

(2d Cir. 2018), vacated,

(2019). Those cases

10 considered whether Hobbs Act robbery and conspiracy to commit Hobbs Act

11 robbery, respectively, were crimes of violence within the meaning of § 924(c).

12 As relevant here, the Supreme Court granted the petition in Barrett, vacated the

13 judgment, and remanded for further consideration in light of United States v.

14 Davis,

(2019), in which the Supreme Court held that the residual

15 clause in § 924(c)(3)(B) is unconstitutionally vague. On remand in Barrett, this

16 Court held that “Davis precludes us from concluding . . . that Barrett’s Hobbs Act

17 robbery conspiracy crime qualifies as a § 924(c) crime of violence.” United

18 States v. Barrett (Barrett II),

(2d Cir. 2019). We accordingly

3 1 vacated Barrett’s conviction for using a firearm in committing Hobbs Act robbery

2 conspiracy.

3 In light of Barrett II, we vacate Delcid’s conviction for violating § 924(c)

4 (Count Five) and remand for resentencing. We therefore do not consider

5 Delcid’s related claim of ineffective assistance of counsel. Delcid does not

6 challenge his two other counts of conviction on appeal, and so we affirm the

7 judgment as to those counts.

8 For the foregoing reasons, we VACATE the judgment of the District Court

9 as to Delcid’s violation of

(c) and REMAND for further

10 proceedings consistent with this order. We AFFIRM Delcid’s conviction in all

11 other respects.

12 FOR THE COURT: 13 Catherine O=Hagan Wolfe, Clerk of Court

4