     Case: 18-30256   Document: 00515073119     Page: 1   Date Filed: 08/12/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                 No. 18-30256                      FILED
                                                             August 12, 2019
                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                          Clerk

             Plaintiff – Appellee,

v.

DELOYD JONES, also known as Puggy Jones; BYRON JONES, also known
as Big Baby Jones; SIDNEY PATTERSON, also known as Duda Man
Patterson,

             Defendants – Appellants.




                Appeals from the United States District Court
                    for the Eastern District of Louisiana


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:
      Appellants were convicted of a series of racketeering, drug, and firearm
offenses—including several offenses under 18 U.S.C. § 924—in connection with
their activities as members of a New Orleans gang. While this appeal was
pending, the Supreme Court decided United States v. Davis, 139 S. Ct. 2319
(2019), which held that the residual clause of § 924(c) is unconstitutionally
vague. Appellants now seek vacatur of their § 924 convictions. We VACATE
the challenged convictions and REMAND.
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                                      No. 18-30256
                                             I.
       Appellants Deloyd Jones, Byron Jones, and Sidney Patterson were
convicted of racketeering, drug, and firearm offenses arising out of their
membership in the New Orleans gang “Ride or Die.” Among these were several
convictions under 18 U.S.C. § 924. For each § 924 offense, the indictment
charged a Racketeer Influenced and Corrupt Organizations Act (RICO)
conspiracy—Count 1 in the indictment—as a predicate crime of violence, and
a controlled-substance conspiracy—Count 2 in the indictment—as a predicate
drug trafficking crime. The verdict form did not require the jury to specify
which predicate offense or offenses it relied upon in convicting Appellants of
the § 924 offenses.
       On appeal, we reversed four of the convictions for insufficient evidence,
affirmed the remaining convictions, and remanded for resentencing. 1 United


      1The convictions relevant to this appeal and the sentences the district court imposed
on remand are as follows:

   Deloyd Jones
    • Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.
    • Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841
       and 846 – life imprisonment.
    • Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 240 months.
    • Count 16 – Causing death through the use of a firearm under 18 U.S.C. § 924(j)
       – life imprisonment.
    • Count 18 – Use and carrying of a firearm during and in relation to a crime of
       violence and a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) – 120 months.
    • Count 20 – Causing death through the use of a firearm under 18 U.S.C. § 924(j)
       – life imprisonment.

   Byron Jones
    • Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.
    • Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841
       and 846 – 235 months.
    • Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 235 months.
    • Count 6 – Causing death through the use of a firearm under 18 U.S.C. § 924(j) –
       235 months.
    • Count 8 – Use and carrying of a firearm during and in relation to a crime of
       violence and a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) – 120 months.
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                                    No. 18-30256
States v. Jones, 873 F.3d 482, 500 (5th Cir. 2017). Appellants appeal a second
time.     In their briefs, they argue that their § 924 convictions are
unconstitutional under Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and our
decision in United States v. Davis, 903 F.3d 483 (5th Cir. 2018).                When
Appellants filed their briefs, Davis was still pending before the Supreme Court.
After the oral argument in this case, the Supreme Court issued its opinion in
Davis, which affirmed our decision on the relevant issue. 139 S. Ct. at 2336.
Because both Davis decisions were issued after Appellants’ resentencings, they
did not raise this issue in their previous appeal or in the district court.
                                          II.
        In Sessions v. Dimaya, the Supreme Court invalidated the residual
clause of 18 U.S.C. § 16(b) as unconstitutionally vague. 138 S. Ct. at 1223.
Months later, in United States v. Davis, we relied on Dimaya to hold that the
identically-phrased residual clause of 18 U.S.C. § 924(c) is unconstitutionally
vague as well. 903 F.3d at 486. The Supreme Court agreed and affirmed our
holding in that regard. Davis, 139 S. Ct. at 2336.
        The parties agreed in their briefs that under Dimaya and our decision in
Davis, RICO conspiracy is not a § 924(c) crime of violence. In a Federal Rule
of Appellate Procedure 28(j) letter, the government acknowledged that the
same is true under the Supreme Court’s Davis decision. See Gov’t’s Fed. R.
App. P. 28(j) Letter (June 26, 2019). Because the jury in Appellants’ case may
have based Appellants’ § 924 convictions on the now-invalid RICO conspiracy




   Sidney Patterson
    • Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.
    • Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841
       and 846 – life imprisonment.
    • Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 240 months.
    • Count 20 – Causing death through the use of a firearm under 18 U.S.C. § 924(j)
       – life imprisonment.
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                                      No. 18-30256
predicate,    Appellants      contend     that    each     of    those   convictions     is
unconstitutional. 2 Appellants advance two alternative arguments in support
of their position: (1) permitting § 924 convictions predicated on RICO
conspiracy is structural error requiring automatic reversal; and (2) the § 924
convictions should be reversed under plain error review.
                                            A.
       Structural error is constitutional error that “‘affect[s] the framework
within which the trial proceeds,’ rather than being ‘simply an error in the trial
process itself.’”    Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017)
(alteration in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 310
(1991)). If an error is structural, it is not harmless beyond a reasonable doubt,
and it warrants automatic reversal. See id.
       Structural error does not occur when a jury rendering a general verdict
“was instructed on alternative theories of guilt and may have relied on an
invalid one.” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008); accord United States
v. Skilling, 638 F.3d 480, 481 (5th Cir. 2011). That is precisely what occurred
here: the jury was given two theories of guilt for the § 924 offenses—a crime of
violence predicate and a drug trafficking predicate—and it may have relied on
the invalid crime of violence predicate to the exclusion of or in addition to the
valid drug trafficking predicate. Thus, under Hedgpeth, plain error review
applies. See United States v. Flores, 2018 WL 2709855, at *6–7 (D. Nev. June
5, 2018) (holding that inclusion of invalid § 924(c) crime of violence predicate
in jury instructions was not structural error where jury was also given valid
drug trafficking predicate); see also United States v. Percel, 553 F.3d 903, 908–
09 (5th Cir. 2008) (“Generally, incorrect jury instructions are not considered


       2Specifically, Deloyd Jones challenges his Count 3, 16, 18, and 20 convictions; Byron
Jones challenges his Count 3, 6, and 8 convictions; and Patterson challenges his Count 3 and
20 convictions.
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                                       No. 18-30256
structural errors.”); Jimenez v. Wood Cty., 660 F.3d 841, 845 (5th Cir. 2011)
(en banc) (“Where a proper objection is not made, . . . our review of a jury
instruction challenge is limited to review for plain error.”).
       Moreover, we recently applied plain error review under circumstances
similar to Appellants’: the appellant was convicted of a firearm offense under
§ 924(c) based on a predicate crime of violence that the parties agreed was
invalid in light of our decision in Davis. United States v. Lewis, 907 F.3d 891,
893–94 (5th Cir. 2018), cert. denied, No. 18-989, 2019 WL 358452 (June 28,
2019). We have also applied plain error review in the analogous context of
Johnson 3 and Dimaya errors. E.g., United States v. Fuentes, 906 F.3d 322,
324–25 (5th Cir. 2018) (Johnson error); United States v. Rubio-Sorto, 760 F.
App’x 258, 259–60 (5th Cir. 2019) (Dimaya error); see also Shabazz v. United
States, 923 F.3d 82, 84 (2d Cir. 2019) (concluding that Johnson error in
sentencing was not structural). We likewise hold that the Davis error in this
case is not structural.
                                              B.
       Appellants next argue that even if the error here is not structural, we
must reverse their convictions under plain error review. 4 Plain error review
consists of four prongs: (1) there must be an error; (2) the error must be “clear
or obvious, rather than subject to reasonable dispute”; (3) “the error must have
affected the appellant’s substantial rights, which in the ordinary case means
he must demonstrate that it ‘affected the outcome of the district court
proceedings’”; and (4) the court must decide in its discretion to correct the error



       3 See Johnson v. United States, 135 S. Ct. 2551 (2015).
       4 In the alternative, Appellants submit that de novo review is appropriate because
their arguments were foreclosed in the Fifth Circuit at the time of their trial and initial
appeal. However, as the government points out and Appellants acknowledge, we “may review
a claim raised for the first time on appeal, even when based on an intervening Supreme Court
decision, only for plain error.” United States v. Fernandez, 559 F.3d 303, 316 (5th Cir. 2009).
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                                  No. 18-30256
because it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.”     Puckett v. United States, 556 U.S. 129, 135 (2009)
(alteration in original) (quoting United States v. Olano, 507 U.S. 725, 734, 736
(1993)).
      The government concedes that prong one of the plain error review
framework is satisfied here because, under both Davis decisions, it was error
to permit the jury to convict Appellants under § 924 based on RICO conspiracy
as a crime of violence. The government also concedes prongs two and four: that
the error is plain because both Davis opinions were issued while this appeal
was pending, and that, if the error affected Appellants’ substantial rights, “the
failure to remedy the mistake would be manifestly unfair.”
      The government is correct to concede these points. In Davis, we held
that Hobbs Act conspiracy was not a crime of violence because it did “not
necessarily require proof that a defendant used, attempted to use, or
threatened to use force”—instead, “conspiracy to commit an offense is merely
an agreement to commit an offense.” 903 F.3d at 485. The Supreme Court’s
Davis opinion left this reasoning intact. 139 S. Ct. at 2336 (vacating only our
decision not to vacate the appellants’ sentences on all counts). Similarly, RICO
conspiracy only requires that (1) “two or more people agreed to commit a
substantive RICO offense”; and (2) “the defendant knew of and agreed to the
overall objective of the RICO offense.” Jones, 873 F.3d at 489. Accordingly,
RICO conspiracy is not a crime of violence, and the district court erred in
permitting Appellants’ § 924 convictions to be predicated on this offense. In
addition, because we decided Davis in September 2018 and the Supreme Court
decided Davis in June 2019, the error is plain. United States v. Escalante-
Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (“[T]he ‘plainness’ of the error
should be judged by the law at the time of appeal.”).


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                                 No. 18-30256
      As for prong four of plain error review, the Davis error here increased
Appellants’ sentences significantly and even resulted in additional life
sentences for Deloyd Jones and Patterson.           Declining to correct this
“particularly egregious error[]” would therefore “cast significant doubt on the
fairness of the criminal justice system.” United States v. Young, 470 U.S. 1, 15
(1985) (quoting United States v. Frady, 456 U.S. 152, 163 (1982)); United States
v. Hornyak, 805 F.3d 196, 199 (5th Cir. 2015) (holding that prong four was
satisfied where appellant would be kept in prison for an additional sixty-eight
months “because of a clause in a statute declared unconstitutionally void
during his direct appeal”). Thus, our only remaining inquiry in this case is
under prong three: whether the Davis error in this case affected Appellants’
substantial rights. See Puckett, 556 U.S. at 135. We hold that it did.
      To establish that an error affected their substantial rights, Appellants
must “‘show a reasonable probability that, but for the error,’ the outcome of the
proceeding would have been different[.]” Molina-Martinez v. United States,
136 S. Ct. 1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542
U.S. 74, 76 (2004)). In Lewis, we concluded without discussion that a Davis
error affected the appellant’s substantial rights. 907 F.3d at 895. However,
this case presents a different question because here the jury could have
convicted on the § 924 counts by relying on either the invalid crime of violence
predicate or the alternative drug trafficking predicate, the Count 2 controlled-
substance conspiracy.
      Appellants contend that the record demonstrates that the Davis error
affected their substantial rights because the outcome at trial may have been
different absent the inclusion of the RICO conspiracy crime of violence
predicate for the § 924 offenses. Appellants argue that the indictment, the
evidence and arguments presented at trial, and the verdict form indicate that
the RICO conspiracy encompassed a broader range of conduct than the
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                                  No. 18-30256
controlled-substance conspiracy, allowing the jury to convict on the § 924
counts based on conduct unrelated to drug trafficking.          The government
responds that the verdict form and the government’s theory at trial
demonstrate that the jury necessarily connected the § 924 offenses to the
controlled-substance conspiracy, so the verdict would have been the same even
absent the RICO conspiracy predicate.
      Courts that have considered § 924 convictions predicated on both a crime
of violence and a drug trafficking crime have reached disparate conclusions as
to whether the jury could have convicted based only on the drug trafficking
predicate. For example, the Eleventh Circuit concluded that an indictment
charging a § 924(c) offense based on multiple predicate offenses was infirm
because “a general verdict of guilty does not reveal any unanimous finding by
the jury that the defendant was guilty of conspiring to carry a firearm during
one of the potential predicate offenses, all of [the] predicate offenses, or guilty
of conspiring during some and not others.” In re Gomez, 830 F.3d 1225, 1227
(11th Cir. 2016); see also In re Cannon, 2019 WL 3334766, at *5 (11th Cir. July
25, 2019) (holding that appellant made a prima facie showing that his Davis
claim satisfied the statutory criteria of 28 U.S.C. § 2255(h)(2) where his § 924
conviction referenced multiple predicates, including one that may no longer
qualify as a crime of violence, and it was “somewhat unclear which crime or
crimes served as the predicate offense”).
      In contrast, the Second Circuit held in an unpublished case that no plain
error occurred where the appellant had “admitted to engaging in drug
trafficking” at trial and “certain questions from the jury during deliberations
indicate[d] that the jury was considering the drug trafficking predicate”
instead of the crime of violence predicate. United States v. Ventura, 742 F.
App’x 575, 578 (2d Cir. 2018), petition for cert. filed (U.S. Feb. 12, 2019) (No.
18-8055); see also United States v. Vasquez, 672 F. App’x 56, 61 (2d Cir. 2016)
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                                No. 18-30256
(holding that a § 924 conviction “undoubtedly rest[ed] on a valid drug-
trafficking predicate” where the crime of violence and drug conspiracy were
“inextricably intertwined” and the jury convicted on the underlying drug
conspiracy offense).
      Turning to the record in this case, the indictment provides the first
indication that the RICO conspiracy and the controlled-substance conspiracy
were not coextensive.     While the alleged conduct underlying the RICO
conspiracy included “conspiracy to distribute controlled substances” and
“distribution of controlled substances,” it also included a broader range of
conduct: “conspiracy to commit murder,” “aggravated battery,” the use of
“stolen vehicles,” and “protecting the power, territory and profits of the
enterprise through . . . aggravated assault, robbery and murder.” In addition,
the indictment charged each § 924 offense alongside another offense based on
the same conduct: for example, Counts 5 and 6 both arose out of the murder of
Travis Arnold.   Although the § 924 offenses included both the RICO and
controlled-substance predicates, the paired offenses specified that they were
committed “in Aid of Racketeering”—a reference to 18 U.S.C. § 1959, the
Violent Crimes in Aid of Racketeering Act (VICAR)—suggesting a connection
between the conduct underlying each § 924 offense and the RICO conspiracy.
      The government’s opening statement and closing argument also suggest
that the RICO conspiracy offense encompassed conduct beyond the controlled-
substance conspiracy.     Specifically, the government’s opening statement
emphasized that Ride or Die used its guns in acts of violence unrelated to its
drug activity, such as protecting its gang territory or maintaining its
reputation. The government made similar statements in its closing argument.
In addition, witness testimony at trial described RICO conduct unrelated to
the controlled-substance conspiracy.


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                                 No. 18-30256
      The verdict form further supports Appellants’ argument that there is a
reasonable probability that the jury’s verdict would not have been the same
absent the inclusion of the RICO conspiracy as a crime of violence predicate.
The verdict form included the same VICAR “in Aid of Racketeering” language
for the offenses paired with each § 924 offense based on the same underlying
conduct. And Appellants correctly observe that the jury returned the same
verdicts on each § 924 offense and its paired “in Aid of Racketeering” offense.
For example, on Counts 5 and 6, the jury convicted Byron Jones of both and
acquitted Patterson of both. This suggests that the § 924 convictions were
based on the RICO conspiracy predicate.
      The government contends that the verdict form instead establishes that
the RICO conspiracy and the controlled-substance conspiracy were necessarily
connected, pointing to the jury’s additional findings on Count 1 that Appellants
conspired to distribute and possess drugs in furtherance of the RICO
conspiracy. This does not change our analysis. The fact that Appellants’ drug-
related conduct furthered the RICO conspiracy does not establish the converse:
that all of Appellants’ RICO conduct furthered the controlled-substance
conspiracy as well. A reasonable probability remains that the jury relied upon
RICO conduct separate from the drug conspiracy—such as assaults and
murders for the purpose of maintaining the gang’s territory or reputation—to
convict Appellants of the challenged § 924 offenses. Cf. Vasquez, 672 F. App’x
at 61 (finding no plain error where the potentially invalid predicate “was
presented as a part of” and was “an act . . . in furtherance of” the indisputably
valid predicate).
      While this is a close question, we conclude that the above record evidence
demonstrates a reasonable probability that the jury would not have convicted
Appellants of the § 924 offenses if the invalid crime of violence predicate were
not included on the verdict form. This is not a case like Vasquez or Ventura
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                                 No. 18-30256
where the record makes clear that the jury based the § 924 convictions on the
valid drug trafficking predicate. See Vasquez, 672 F. App’x at 61; Ventura, 742
F. App’x at 577–78.
      Finally, the sentences imposed based on Appellants’ § 924 convictions
were significant: Deloyd Jones received two additional life sentences and thirty
additional years of imprisonment, Byron Jones received approximately fifty
additional years of imprisonment, and Patterson received an additional life
sentence and twenty additional years of imprisonment. See United States v.
Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir. 2009) (“[W]e often ask whether
the error increased the term of a sentence, such that there is a reasonable
probability of a lower sentence on remand.”). As a result, we hold that the
inclusion of the RICO conspiracy crime of violence predicate affected
Appellants’ substantial rights. Appellants have demonstrated plain error.
                                      III.
      Because it was plain error to permit the jury to convict Appellants of
§ 924 offenses based on RICO conspiracy as a crime of violence predicate, we
VACATE Deloyd Jones’s Count 3, 16, 18, and 20 convictions; Byron Jones’s
Count 3, 6, and 8 convictions; and Patterson’s Count 3 and 20 convictions. We
REMAND for further proceedings consistent with this opinion.




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