15‐2220(L)
United States v. Sierra (Carlos Lopez)


                          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 1st day of August, two thousand
nineteen.

PRESENT: JON O. NEWMAN,
         DENNIS JACOBS,
         CHRISTOPHER F. DRONEY,
              Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,
                            Appellee,

                  v.                                                 15‐2220(L),
                                                                     15‐2247(CON),
                                                                     15‐2257(CON)

LEONIDES SIERRA, AKA SEALED

                                                           1
DEFENDANT 1, AKA JUNITO, AKA
JUNIOR, et al.,

                           Defendants,

CARLOS LOPEZ, AKA SEALED
DEFENDANT 15, AKA CARLITO, LUIS
BELTRAN, AKA SEALED DEFENDANT
26, AKA GUALEY, FELIX
LOPEZ‐CABRERA, AKA SEALED
DEFENDANT 14, AKA SUZTANCIA,
                            Defendants‐Appellants.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X

FOR APPELLEE:                                                    Matthew Laroche, Assistant United
                                                                 States Attorney (Micah W.J. Smith,
                                                                 Margaret Garnett, Assistant United
                                                                 States Attorneys, on the brief),
                                                                 United States Attorney’s Office for
                                                                 the Southern District of New York,
                                                                 New York, NY.

FOR APPELLANT CARLOS LOPEZ:                                      Susan Gail Kellman, Law Offices of
                                                                 Susan G. Kellman, Brooklyn, NY
                                                                 (Ezra Spilke, Law Offices of Ezra
                                                                 Spilke PLLC, Brooklyn, NY, on the
                                                                 brief).

FOR APPELLANT LUIS BELTRAN:                                      Daniel S. Nooter (Lee Ginsberg, on
                                                                 the brief), Freeman, Nooter &
                                                                 Ginsberg, New York, NY.*

* In addition to the brief prepared by his counsel, appellant Beltran also
submitted a pro se brief.

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FOR APPELLANT FELIX LOPEZ‐
CABRERA:                                    Jesse M. Siegel, Law Office of Jesse
                                            M. Siegel, New York, NY (Irving
                                            Cohen, Law Office of Irving Cohen,
                                            New York, NY, on the brief).

     Appeal from a judgment of the United States District Court for the
Southern District of New York (Engelmayer, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.

      Carlos Lopez, Luis Beltran, and Felix Lopez‐Cabrera (the “defendants”)
were convicted after a jury trial in the United States District Court for the
Southern District of New York (Engelmayer, J.) of charges including racketeering
conspiracy, murder in aid of racketeering, firearms offenses, and (with respect to
Lopez and Lopez‐Cabrera) narcotics conspiracy and substantive racketeering.
On appeal, the defendants challenge the constitutionality of their mandatory
minimum life sentences and certain aspects of their convictions. We assume the
parties’ familiarity with the underlying facts, the procedural history, and the
issues presented for review.

       The defendants were indicted alongside 36 co‐defendants on numerous
counts arising out of their membership in the Bronx Trinitarios Gang, a
racketeering enterprise engaged in drug trafficking and violent crime. After a
twelve‐week trial, a jury found Lopez and Lopez‐Cabrera guilty on all counts and
found that all racketeering acts were proven as to them. Beltran was found
guilty of: racketeering conspiracy; conspiracy and substantive murder in aid of
racketeering; and use of a firearm during and in relation to murder in aid of
racketeering. Beltran was acquitted of substantive racketeering, pursuant to the
jury’s finding that he committed only one of the racketeering acts with which he
was charged.

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       At sentencing, the defendants filed a joint motion arguing that it would be
cruel and unusual in violation of the Eighth Amendment to impose the
mandatory minimum sentence of life imprisonment applicable to convictions for
murder in aid of racketeering. See 18 U.S.C. § 1959(a)(1). The district court
denied the motion, and imposed sentences that include at least one mandatory
minimum term of life imprisonment for each of the defendants.

       On appeal, Beltran argues that there was insufficient evidence to support
his conviction for murder in aid of racketeering. Lopez‐Cabrera argues that his
convictions for using, carrying, and possessing firearms in connection with crimes
of violence must be vacated because his predicate acts are not crimes of violence
under 18 U.S.C. § 924(c)(1)(A). All the defendants argue that the mandatory
minimum terms of life imprisonment violated the Eighth Amendment. The last
issue has been adjudicated in an opinion filed today.

       1.    We review the denial of a Rule 29 motion de novo, United States v.
Alston, 899 F.3d 135, 143 (2d Cir. 2018), but “[a] defendant who challenges the
sufficiency of the evidence to support his conviction bears a heavy burden,”
United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (internal quotation marks
omitted). We must consider the evidence “in the light most favorable to the
Government” and draw “all permissible inferences” in its favor. Id. “[T]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979).

       Beltran was convicted of murder in aid of racketeering in violation of 18
U.S.C. § 1959(a)(1). Under § 1959, the “[d]efendant’s motive must be receiving
payment or promise of payment of anything of pecuniary value from the
racketeering enterprise or ‘gaining entrance to or maintaining or increasing
position’ in the enterprise.” United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.
2001) (quoting 18 U.S.C. § 1959(a)). “[S]elf‐promotion need not have been the
defendant’s only, or even his primary, concern, if the act was committed as an
integral aspect of membership in the enterprise.” United States v. Diaz, 176 F.3d

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52, 95 (2d Cir. 1999) (internal quotation marks and alterations omitted).
Accordingly, “the motive requisite is satisfied if the jury could properly infer that
the defendant committed his violent crime because he knew it was expected of
him by reason of his membership in the enterprise or that he committed it in
furtherance of that membership.” Id. (internal quotation marks omitted).

       On the day Raymond Casul was murdered, he had chased Beltran and two
fellow Trinitarios off of a street corner and fought Beltran, punching him in the
face. According to the government, Beltran was motivated to kill Casul to
conform with the expectations of the Trinitarios and in furtherance of his
membership in the gang. That is because the attack on Beltran and his
companions occurred in a location that the Trinitarios claimed as their own
territory, it was perpetrated by an individual believed to be a member of a rival
gang, and it was an act of disrespect to Beltran and the Trinitarios.

       According to Beltran, the evidence established that the murder was
motivated solely by Beltran’s personal dispute with Casul stemming from their
fight, citing one witness’s testimony that Casul’s murder had “nothing to do with
the Trinitarios,” and other witnesses’ testimony that the murder was committed
in retaliation for Casul’s fight with Beltran earlier in the day. Beltran therefore
argues that no rational jury could have determined that the murder was
motivated by his intent to maintain or increase his status in the Trinitarios.

        However, the jury also heard testimony supporting a conclusion that
Trinitarios rules required retaliation for Casul’s actions. One Trinitarios leader
testified that the gang’s written rules and regulations require that “absolutely
nobody could disrespect the organization without being punished,” and that if
Trinitarios members are unable to resolve problems through dialogue, “[they]
must use violence and . . . [they] should always [a]venge, seek vengeance for a
Trinitario that is getting hurt.” Trial Tr. at 84‐85, 94. Beltran dismisses such
testimony as merely evidence of general Trinitarios practices; however, a witness
who was present at the initial encounter with Casul and who participated in his
murder testified that the murder occurred “because we had been assaulted,”
pursuant to Trinitarios rules requiring that “if a brother bleeds . . . we all bleed”
and that “nobody can disrespect a member of the organization without . . . being

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punished.” Trial Tr. at 3938. The government’s theory is supported by the fact
that four other Trinitarios, three of whom held leadership positions in the gang,
assisted Beltran with the murder and with efforts to cover it up.

       In addition, there was testimony that Trinitarios believed it would “look
bad” if they did not retaliate for Casul’s attack, Trial Tr. at 1337, and that Casul’s
murder “boosted [Beltran’s] reputation because it showed that he wasn’t scared
of putting in work.” Trial Tr. at 337. The evidence at trial thus supported
inferences that Beltran “committed his violent crime because he knew it was
expected of him by reason of his membership in the enterprise,” and that it was
done “in furtherance of [his] membership,” and to increase his status, in the
Trinitarios. See Diaz, 176 F.3d at 95 (internal quotation marks omitted).

       Beltran additionally relies on testimony that before engaging in violence
against rival gang members, Trinitarios members were generally required to
obtain a “green light” from gang leadership, and that no green light was sought
for Casul’s murder because the situation was “personal.” However, that same
witness testified that he was “supposed to get” the green light for Casul’s murder,
but failed to do so. Trial Tr. at 1045. In any event, even if such testimony could
support an inference that Beltran’s motives were purely personal, “the task of
choosing among competing, permissible inferences is for the fact‐finder, not for
the reviewing court.” United States v. McDermott, 245 F.3d 133, 137 (2d Cir.
2001).

       Considered in the light most favorable to the government, the evidence was
sufficient for the jury to infer that Beltran murdered Casul “in furtherance of [his]
membership” in the Trinitarios or “because he knew it was expected of him by
reason of his membership” in the gang, and that the murder therefore was
committed in aid of racketeering pursuant to 18 U.S.C. § 1959(a). See Diaz, 176
F.3d at 95 (internal quotation marks omitted). To the extent that Lopez‐Cabrera
joins in Beltran’s argument, his argument fails for the same reasons.

      2.     Lopez‐Cabrera was convicted under 18 U.S.C. §§ 924(c) and 924(j) of
using firearms in connection with four murders in aid of racketeering and in an
assault and attempted murder in aid of racketeering. He argues on appeal that

                                          6
those predicate acts are not “crimes of violence” under 18 U.S.C. § 924(c)(1)(A),
and that the firearms convictions must therefore be vacated.

      Section 924(c) prohibits the use or carrying of a firearm in relation to, or
possession of a firearm in furtherance of, a “crime of violence.” 18 U.S.C.
§ 924(c)(1)(A). The statute defines “crime of violence” as a felony that “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).1

       We have repeatedly treated it as self‐evident that under New York law
“attempted murder is a crime unmistakably involving an attempted use of
physical force.” United States v. Praddy, 729 F. App’x 21, 24 (2d Cir. 2018)
(internal quotation marks omitted); United States v. Scott, 681 F. App’x 89, 94‐95
(2d Cir. 2017). It follows that murder is a crime involving the use of such force.
See id. Lopez‐Cabrera argues that murder can be committed by omission, and
therefore that the use of force is not an element of his murder convictions. But
that argument is foreclosed by our holding that the “use of physical force can
encompass acts undertaken to cause physical harm, even when the harm occurs
indirectly.”2 United States v. Hill, 890 F.3d 51, 60 (2d Cir. 2018). Accordingly,
Lopez‐Cabrera’s convictions are crimes of violence within the meaning of 18
U.S.C. § 924(c).3 To the extent that Lopez and Beltran join in Lopez‐Cabrera’s
argument, their arguments fail for the same reasons.

1 We observe that the statute’s so‐called “residual clause,” 18 U.S.C.
§ 924(c)(3)(B), was recently ruled unconstitutional by the Supreme Court in
United States v. Davis, 139 S. Ct. 2319 (2019).

2 An omission can be considered one way of indirectly precipitating a harmful
consequence. See People v. Steinberg, 79 N.Y.2d 673 (1992) (affirming
manslaughter conviction based on omitting to provide medical care to a child); cf.
Villanueva v. United States, 893 F.3d 123, 129 (2d Cir. 2018) (pointing out that “the
relevant force is the impact of the substance on the victim, not the impact of the
user on the substance”).

3   Lopez‐Cabrera argues that it is not possible to determine whether his conviction

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     With the exception of the defendants’ Eighth Amendment arguments,
which are addressed in an opinion filed today, we have considered the
defendants’ remaining arguments and conclude they are without merit. The
judgment of the district court is therefore AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, CLERK




on Count Twenty‐One of the verdict form was in connection with assault or
attempted murder. However, the verdict form indicates that the jury found
Lopez‐Cabrera guilty of both assault and attempted murder with respect to the
count underlying Count Twenty‐One.

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