United States v. Martinez

• Decision Date: 16 March 2021
• Docket Number: August Term, 2016,Docket No. 15-1384-cr
• Citation: 991 F.3d 347
• Parties: UNITED STATES of America, Appellee, v. Jose Antonio MARTINEZ, aka Yoyo, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

991 F.3d 347

UNITED STATES of America, Appellee,

v.Jose Antonio MARTINEZ, aka Yoyo, Defendant-Appellant,

Docket No. 15-1384-cr

August Term, 2016

United States Court of Appeals, Second Circuit.

Submitted: January 27, 2017

Last Submission: September 19, 2019

Decided: March 16, 2021

Susan Corkery and Audrey Spektor, Assistant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Bruce R. Bryan, Syracuse, New York, for Defendant-Appellant.

Before: Cabranes and Lynch, Circuit Judges.^*

Gerard E. Lynch, Circuit Judge:

On April 22, 2011, Jose Antonio Martinez, an associate of the violent La Mara Salvatrucha ("MS-13") gang, pled guilty in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, J .) to all counts of a three-count superseding information charging him with substantive and conspiracy violations of the Racketeer-Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d), and discharging a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A), pursuant to a plea agreement calling for his cooperation with the authorities in their investigations. The pattern of racketeering underlying the substantive RICO charge included: (1) the murder, in violation of New York State law, of John Halley; (2) conspiracy to murder members of a rival gang; and (3) conspiracy to distribute narcotics.

The government later concluded that, although Martinez had provided them with useful information, he had not been fully forthcoming in his cooperation, and declined to file a motion in support of a sentence below the recommendations of the Sentencing Guidelines and the applicable mandatory minimum sentence for the firearm offense. On April 15, 2015, he was sentenced to concurrent ten-year terms of imprisonment on the racketeering counts and a mandatory consecutive ten-year term on the firearms charge. The charges and guilty plea were, at the time, sufficiently non-controversial that when Martinez appealed, he did not raise any objection to his conviction, challenging only the reasonableness of his sentence.

Just a few months after Martinez's sentence, however, the Supreme Court decided Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), holding that the "residual" clause of the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. In consequence, Martinez filed a supplementary brief contending that his conviction for violating § 924(c) should be reversed. Then, in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the Supreme Court invalidated the "residual" clause in § 924(c)(3)(B) as unconstitutionally vague. At this Court's request, the parties filed supplementary briefs addressing the effect of Davis on Martinez's § 924(c) conviction.

The case requires us to revisit our precedent in United States v. Ivezaj , 568 F.3d 88 (2d Cir. 2009), which held that a RICO offense based on two violent racketeering predicates is a violent crime for the purposes of § 924(c). Because Davis ’s effect on Ivezaj ’s holding is unclear, we conclude that Martinez has failed to show plain error. We therefore AFFIRM Martinez's conviction and sentence.

BACKGROUND

The criminal conduct for which Martinez was sentenced has never been in dispute. Martinez was associated with the MS-13 gang, which he knew to be an organization that commits criminal acts, including murders. After learning that his girlfriend had left him for a member of a rival gang, Los Vatos Locos, Martinez approached the leader of the Flushing, Queens, branch of MS-13 and sought his assistance in finding and killing the man his ex-girlfriend was now seeing. With the gang leader's blessing, Martinez and other MS-13 members traveled several times from Queens to Yonkers, searching for the man, or for other members of Los Vatos Locos, in order to kill them; on at least one of these occasions, Martinez himself carried a gun with the intention of killing the man himself.

On September 29, 2007, the last of these expeditions, Martinez drove while another gang member, Hector Aleman Lemos, carried the gun. Martinez was unable to find his rival, but he did spot a group of men standing on the street whom he believed to be members of the Vatos Locos. Martinez, Lemos, and the other MS-13 member in the vehicle decided to shoot at the group. Lemos got out of the van and walked towards the men with a .38 caliber revolver; Martinez then heard several shots. Lemos ran back to the van and said he had hit someone. He got back in the van, and Martinez drove away. It was later learned that Lemos's shots had killed John Halley. There is no evidence that Halley was affiliated with Los Vatos Locos or with the man against whom Martinez held his grudge.

In July 2010, Martinez was indicted and charged with conspiracy to commit murder for the purpose of maintaining and advancing his position in a racketeering enterprise in violation of 18 U.S.C. § 1959(a)(5), and possessing a firearm during a crime of violence during which the firearm was brandished and discharged, in violation of 18 U.S.C. § 924(c)(1)(A). Pursuant to a plea agreement, Martinez eventually pled guilty to all counts of a superseding information that charged him with participating in the affairs of an enterprise, the MS-13 gang, through a pattern of racketeering, in violation of 18 U.S.C. § 1962(c) ; conspiring to do so, in violation of 18 U.S.C. § 1962(d) ; and using and carrying a firearm during a crime of violence during which the firearm was brandished and discharged, in violation of 18 U.S.C. § 924(c)(1)(A). The charged pattern of racketeering consisted of three racketeering acts: the murder of John Halley, a conspiracy to murder members of Los Vatos Locos, and a conspiracy to distribute cocaine.

The information charged that the firearm had been brandished and discharged during the substantive and conspiracy RICO violations. During his plea allocution, Martinez described the events of the night of September 29, 2007 as the conduct that made him guilty of the firearms offense. On April 10, 2015, he was sentenced in the United States District Court for the Eastern District of New York to concurrent ten-year terms of imprisonment on the racketeering counts, and a mandatory consecutive ten-year term on the firearms charge.

Martinez filed a timely notice of appeal on April 28, 2015. His initial argument on appeal was that his sentence of 240 months’ imprisonment was substantively unreasonable, relying primarily on his attempted cooperation, personal circumstances, and the fact that he did not personally shoot Halley. At no time during the district court proceedings did Martinez, who was at all times represented by counsel, object to the legal sufficiency of the count in the superseding information charging a violation of 18 U.S.C. § 924(c). However, Martinez, through counsel, filed a supplemental brief in September 2016 arguing that Johnson called into question his conviction on that count. Then at the Court's request, the parties submitted supplemental briefing to address Davis ’s relevance, if any, to this appeal. Martinez has now added a new argument on appeal: that Johnson , Davis , and this Court's circuit precedent in Ivezaj and United States v. Barrett , 937 F.3d 126 (2d Cir. 2019) (" Barrett II ") require the vacatur of his § 924(c) conviction. Because he argues that the change in the law affects the voluntariness of his plea, Martinez also asks this Court to vacate his RICO convictions, set aside his guilty plea, and remand the case to allow him to decide whether to negotiate a new guilty plea or go to trial. Lastly, Martinez adheres to his initial argument that his total sentence of 20 years’ imprisonment was substantively unreasonable.

DISCUSSION

Because Martinez raises the § 924(c) argument for the first time on appeal, he must establish that, in accepting his guilty plea, the district court committed plain error. Under plain error review, we consider "whether (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Miller , 954 F.3d 551, 557–58 (2d Cir. 2020), quoting United States v. Nouri , 711 F.3d 129, 138 (2d Cir. 2013). Martinez's challenge to the reasonableness of his sentence, having been preserved in the district court, is reviewed for abuse of discretion. United States v. Betts , 886 F.3d 198, 201 (2d Cir. 2018).

We conclude that Martinez has not shown that the district court's acceptance of his guilty plea was plain error. To explain why, we must venture into the anything-but-plain evolution of the law underlying Martinez's claim. We also conclude that it was within the district court's discretion to sentence Martinez to a 20-year term of imprisonment for his crimes.

I. The Validity of Martinez's Conviction for Violating Section 924(c)

A. Section 924(c)

Insofar as is relevant to this case, § 924(c) provides an enhanced punishment for "any person who, during and in relation to any crime of violence ..., uses or carries a firearm." 18 U.S.C. § 924(c)(1)(A). The enhanced punishment requires a mandatory sentence of "not less than five years" in prison "in addition to the punishment provided for such crime of violence," id. § 924(c)(1)(A)(i), increased to seven years if the firearm is "brandished," id . § 924(c)(1)(A)(ii), and ten years if it is "discharged," id . § 924(c)(1)(A)(iii). A crime of violence is defined, for purposes of this enhancement, as a felony crime that either "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," id . § 924(c)(3)(A) (the "force" or "elements" clause), or "by its nature, involves...