20-1758 DeMartino v. United States

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 “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 6th day of July, two thousand twenty-two.

PRESENT: Dennis Jacobs, Richard C. Wesley, Steven J. Menashi, Circuit Judges. ____________________________________________

VINCENT DEMARTINO,

Petitioner-Appellant,

v. No. 20-1758

UNITED STATES OF AMERICA,

Respondent-Appellee. ____________________________________________ For Petitioner-Appellant: Benjamin Yaster (Barry D. Leiwant, on the brief), Federal Defenders of New York, Inc., Appeals Bureau, New York, NY.

For Respondent-Appellee: David C. James (Oren Gleich, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

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

District of New York (Dearie, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Following a jury trial, Plaintiff-Appellant Vincent DeMartino was convicted

of (1) conspiracy to commit murder in aid of racketeering, in violation of

(a)(5) and New York Penal Law §§ 125.25(1) and 105.05 (Count One);

(2) assault with a dangerous weapon in aid of racketeering, in violation of

(a)(3) and 2 and New York Penal Law §§ 120.05(2) and 20.00 (Count

Two); and (3) using a firearm during and in relation to a crime of violence, in

violation of

(c)(1)(A)(iii) and 2 (Count Three). The jury was

instructed that the § 924(c) charge could be predicated on either Count One or

2 Count Two, and the jury found him guilty on all three counts using a general

verdict form. In 2016, DeMartino filed a petition for habeas corpus under

, contending that his § 924(c) conviction and its accompanying sentence

were unlawful. The district court denied the petition. On appeal, DeMartino

argues that his § 924(c) conviction was unlawful because (1) it was possibly

predicated on conspiracy to commit murder, an offense that no longer qualifies as

a crime of violence, and (2) even if it were necessarily predicated on assault with

a dangerous weapon, that offense does not qualify as a crime of violence. We

assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

I

Vincent DeMartino was convicted following a two-week jury trial in 2004.

The government established that DeMartino shot and attempted to murder Joseph

Campanella, who survived and testified at the trial. DeMartino was found guilty

on three counts: conspiracy to commit murder in aid of racketeering, in violation

of

(a)(5) and New York Penal Law §§ 125.25(1) and 105.05 (Count

One); assault with a dangerous weapon in aid of racketeering, in violation of

(a)(3) and 2 and New York Penal Law §§ 120.05(2) and 20.00 (Count

3 Two); and using, carrying, and discharging a firearm during and in relation to a

crime of violence, in violation of

(c)(1)(A)(iii) and 2 (Count Three).

The district court instructed the jury that both Count One and Count Two were

crimes of violence such that the jury could rely on either or both as the predicate

crime of violence to convict DeMartino of Count Three. However, the general

verdict of guilty on Count Three did not specify the predicate offense. DeMartino

was sentenced to ten years’ imprisonment for Count One, fifteen years’

imprisonment for Count Two to run concurrently with Count One, and ten years’

imprisonment on Count Three to run consecutively to the other counts.

DeMartino is currently serving the remainder of his sentence under Count Three.

In 2016, DeMartino filed a petition for habeas corpus under § 2255, arguing

that his Count Three conviction under § 924(c) must be vacated because of Johnson

v. United States,

(2015), which held that

(e)(2)(B)(ii), a

provision similar to the residual clause of § 924(c), was unconstitutionally vague.

The petition was supplemented in 2019 following United States v. Davis,

(2019), and United States v. Barrett,

(2d Cir. 2019), which

applied the same reasoning to § 924(c). In light of these decisions, DeMartino

argued, conspiracy to commit murder in aid of racketeering could not qualify as a

4 crime of violence and therefore the jury instructions were erroneous. In addition,

DeMartino argued that even if the § 924(c) conviction could be found to rest on the

assault conviction, that offense also does not qualify as a crime of violence.

II

Under

, a prisoner may petition the district court to “vacate,

set aside or correct” a sentence if “the sentence was imposed in violation of the

Constitution or laws of the United States, ... [the sentencing] court was without

jurisdiction to impose such sentence, ... the sentence was in excess of the maximum

authorized by law, or [the sentence] is otherwise subject to collateral attack.” We

review de novo a district court’s denial of a § 2255 petition. Al-’Owhali v. United

States, No. 20-3174,

, at *3 (2d Cir. June 8, 2022).

On appeal, DeMartino argues that the jury was impermissibly allowed to

convict him of the Count Three § 924(c) charge based on a finding that he used a

firearm in connection with a murder conspiracy offense because murder

conspiracy is not a “crime of violence” within the meaning of § 924(c). DeMartino

urges this court to use the categorical approach in evaluating the district court’s

instructional error. He also contends that his conviction and sentence under

§ 924(c) should be vacated even if it was premised on the Count Two assault

5 charge because that offense also does not qualify as a crime of violence. We

address each argument in turn.

A

Our recent decision in Stone v. United States resolves DeMartino’s primary

argument. No. 20-1778,

(2d Cir. June 21, 2022). 1 In Stone, we held

that a § 924(c) conviction which relied on one or both of two predicate offenses,

where one of the offenses had subsequently been held to be an invalid predicate,

would not be vacated unless the petitioner was prejudiced by the erroneous jury

instruction.

, at *4. We considered and rejected the argument that

we should apply the categorical approach to harmless error analysis. Instead, we

followed our usual test: whether a rational jury, absent the error, would have

arrived at the same verdict.

. 2 To determine whether the jury would have

1Stone was indicted for conspiracy to commit murder, second degree murder, and a § 924(c) offense. As with DeMartino, the jury was instructed that it could rely on either or both of the first two counts as the predicate crime of violence necessary to convict the defendant of a violation of § 924(c). The jury found Stone guilty on all three counts. Stone petitioned for habeas corpus under 28 U.S.C § 2255, arguing that his § 924(c) conviction relied on an invalid predicate following Johnson and Davis. 2See also Skilling v. United States,

, 414 (2010); Hedgpeth v. Pulido,

(2008); United States v. Eldridge,

(2d Cir. 2021); United States v. Vasquez,

(2d Cir. 2016).

6 returned a guilty verdict if it had been instructed to rely only on Count Two as a

predicate for the § 924(c) charge, we review the whole record.

,

at *5. In a collateral proceeding such as this one, the habeas petitioner bears the

burden of establishing prejudice. Davis v. Ayala,

(2015).

We conclude that the jury instruction permitting reliance on the invalidated

predicate amounted to harmless error because the jury found facts “satisfying the

essential elements of guilt” on the predicate “that would [have] sustain[ed] a

lawful conviction” on the firearm offense, namely assault with a deadly weapon

in aid of racketeering. Stone,

, at *5 (quoting United States v.

Laurent,

(2d Cir. 2022)). As in Stone, the jury was instructed on the

predicate offense of Count Two assault with a deadly weapon and returned a

guilty verdict. The district court charged the jury in connection with Count Two

that “[a] gun is a dangerous weapon” and did not identify any other deadly

weapon. App’x 70. The same evidence presented as proof that DeMartino

committed assault with a deadly weapon also established that DeMartino used a

firearm in relation to a crime of violence. As the government argues, no rational

jury could convict DeMartino of assault with a dangerous weapon without finding

that he used, carried, and discharged the firearm in furtherance of this assault. We

7 are therefore convinced that the jury, if properly instructed on Count Three, would

have reached the same verdict: finding beyond a reasonable doubt that DeMartino

“intentionally used and carried a firearm during and in relation to a crime of

violence … and, in furtherance of such crime[] of violence knowingly and

intentionally possessed said firearm, which firearm was discharged.” App’x 38.

DeMartino was not prejudiced by the erroneous jury instruction that

conspiracy to murder in aid of racketeering qualified as a crime of violence—given

his conviction of assault with a deadly weapon in aid of racketeering and

uncontroverted evidence that he used a gun to commit that crime.

B

DeMartino argues that his § 924(c) conviction should be vacated even if it

had been predicated only on his Count Two conviction for assault with a deadly

weapon in aid of racketeering. Assault with a deadly weapon as charged in Count

Two is a crime of violence. See United States v. Tabb,

(2d Cir.

2020); see also United States v. White,

, 104 & n.75 (2d Cir. 2021). DeMartino

contends, however, that because aiding and abetting an assault with a deadly

weapon would not be a crime of violence, and because aiding and abetting would

suffice for a § 1959(a)(3) conviction, then § 1959(a)(3) is not categorically a crime of

8 violence. As DeMartino concedes, this court categorized aiding and abetting

assault with a deadly weapon as a crime of violence in United States v. McCoy,

(2d Cir. 2021). Tabb and McCoy compel the conclusion that the Count

Two assault with a deadly weapon charge is a crime of violence.

* * *

We have considered DeMartino’s remaining arguments, which we conclude

are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9