    16-3397-cr
    United States v. Jones

                           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 28th day of March, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             DEBRA ANN LIVINGSTON,
                              Circuit Judges,
             PAMELA K. CHEN,*

                              District Judge.

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    UNITED STATES OF AMERICA,
               Appellee,

                 -v.-                                          16-3397-cr

    ANTHONY PRADDY, AKA Birdman, TORELL
    WHYTE, AKA Terror,
               Defendants,

    KIOND JONES, AKA Kion, AKA Kiond Hing,
               Defendant-Appellant.

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    *Judge Pamela K. Chen of the United States District Court
    for the Eastern District of New York, sitting by
    designation.
                                              1
FOR APPELLANT:             Bobbi C. Sternheim, Law Offices
                           of Bobbi C. Sternheim, New York,
                           New York.

FOR APPELLEE:              Andrey Spektor, Assistant United
                           States Attorney, on behalf of
                           Richard P. Donoghue, United
                           States Attorney, Eastern
                           District of New York (Emily
                           Berger, Seth D. Ducharne, on the
                           brief), Brooklyn, New York.

     Appeal from an order of the United States District
Court for the Eastern District of New York (Block, J.).

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

     Kiond Jones appeals from the amended judgment judgment
of the United States District Court for the Eastern
District of New York convicting him of racketeering,
racketeering conspiracy, marijuana distribution conspiracy,
and the use of a firearm in furtherance of a crime of
violence, and sentencing him principally to 30 years in
prison. This case returns to us following remand and
resentencing. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     Jones was a lieutenant in the Raleigh Place Crew
narcotics distribution gang (“Crew”). He was arrested in
June 2009 and charged with racketeering and racketeering
conspiracy; marijuana distribution conspiracy; discharge of
a firearm in connection with a crime of violence, i.e., the
racketeering and racketeering conspiracies; and use of a
firearm in connection with a drug trafficking crime, 18
U.S.C. § 924(c). He was convicted at trial on all five
counts. Testimony elicited from fellow Crew members
indicated that Jones ran a “corner” operation, which
included distribution of controlled substances, collection
of money, enforcement, and retaliation against rivals. As
part of these activities, Jones used firearms to kidnap and
pistol-whip one victim and to attempt to assassinate
                             2
another. The court sentenced Jones principally to 50 years
in prison.

     On Jones’s first appeal, we vacated as duplicative the
Section 924(c) conviction for brandishing a weapon during a
drug trafficking crime, but affirmed convictions on all
other offenses, including the conviction for discharging a
gun in connection with his racketeering crimes. The
district court resentenced Jones principally to 30 years in
prison: 20 years for the racketeering and drug offenses
plus ten years on the remaining Section 924(c) firearms
conviction, which carried a ten-year mandatory minimum
sentencing enhancement. See 18 U.S.C. § 924(c)(1)(A)(iii).
The district court explained that this sentence took into
account Jones’s rehabilitation and productive activity in
prison and was thus lighter than the sentence Jones would
have received had he not been originally convicted of the
duplicative firearms charge. See J. App’x at 67-69.

     Jones challenges his sentence and conviction for
discharge of a firearm in furtherance of a crime of
violence. His first argument is that the district court
erred as a matter of law in ruling that the racketeering
and racketeering conspiracy charges underlying his firearms
conviction qualify as “crime[s] of violence.” See 18
U.S.C. § 924(c)(1)(A)(iii). A crime of violence is either
(1) an offense that “has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another”; or (2) an offense that “by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in
the course of committing the offense.” 18 U.S.C. §
924(c)(3)(A),(B).2 “When determining whether an offense is

2 Jones argues that the “residual” (or “risk of force”)
clause, 18 U.S.C. § 924(c)(3)(B), is void for vagueness as
applied to racketeering conspiracy. This argument is
likely foreclosed by United States v. Hill, 832 F.3d 135
(2d Cir. 2016), which rejected a similar claim that Section
924(c)(3)(B)’s “risk of force” clause is void for
vagueness. In any event, we need not decide this because
Jones’s convictions qualify as crimes of violence under the
physical force prong. See Section 924(c)(3)(A). Whether
the residual clause is void for vagueness as applied to
                             3
a ‘crime of violence’ under the statute, we employ a
‘categorical approach,’ in which ‘we focus on the intrinsic
nature of the offense rather than on the circumstances of a
particular crime.’” United States v. Ivezaj, 568 F.3d 88,
95 (2d Cir. 2009) (quoting United States v. Acosta, 470
F.3d 132, 135 (2d Cir. 2006)).

     The crimes of conviction are racketeering and
racketeering conspiracy (“RICO”). See 18 U.S.C. §§ 1961,
1962. “Because racketeering offenses hinge on the
predicate offenses comprising the pattern of racketeering
activity, we look to the predicate offenses to determine
whether a crime of violence is charged.” Ivezaj,
568 F.3d at 96. A racketeering conviction qualifies as a
“crime of violence” under Section 924(c) when the
government proves: (1) “the commission of at least two acts
of racketeering” and (2) that at least two of those acts
qualify as “crime[s] of violence” under 18 U.S.C. § 924(c).
Id. A racketeering conspiracy is a crime of violence if at
least one of its objects is committing a crime of violence.
United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996).

     Jones argues that, “as charged in [his] indictment,”
neither predicate act--kidnapping or attempted murder--
“necessarily involves physical force or risk of physical
force.”3 Appellant’s Br. at 10-11. Under a categorical
approach, we “look only to the statutory definitions –
i.e., the elements” of the offense. Descamps v. United
States, 570 U.S. 254, 261 (2013) (citation and internal
quotation marks omitted). Jones conjures up scenarios in
which a defendant would meet the elements of the offenses
of kidnapping and attempted murder without force or the
risk of force. But to defeat a finding that a predicate
act qualifies as a crime of violence as a matter of law
under the categorical approach, the defendant “must at
least point to his own case or other cases in which the ...

racketeering conspiracy is thus irrelevant to Jones’s
appeal.
3 Unaccountably, Jones also concedes that “[a]rguably two of
the three racketeering acts – kidnapping and attempted
murder – could qualify as crimes of violence.” Appellant’s
Br. at 10.
                             4
courts in fact did apply the statute in the ... manner for
which he argues.” United States v. Hill, 832 F.3d 135,
139-40 (2d Cir. 2016).

     “A person is guilty of kidnapping in the second degree
when he abducts another person.” N.Y. Penal Law § 135.20.
“Abduct[ion],” which requires, at a minimum, a form of
forceful restraint that entails the threat of severe
physical force, “self-evidently ... satisf[ies] § 924(c)’s
force clause.” Hill, 832 F.3d at 140; see N.Y. Penal Law §
135.00[2] (defining “abduct”). Jones argues that
“abduction” can occur without force or risk of force, for
example via fraud or trickery. However, he does not cite
to any case in which courts applied the kidnapping statute
in this manner. His hypotheticals therefore fail to
overcome the inference that abduction of a person requires
force and the risk of physical force. See Hill, 832 F.3d
at 140-41.

     Similarly, attempted murder is a crime “unmistakably
involving ‘an attempted use ... of physical force.’” See
United States v. Scott, 681 F. App’x 89, 94-95 (2d Cir.
2017) (summary order) (citing 18 U.S.C. § 924(c)(3)(A)).
Jones posits the use of poison, but that example is
specifically foreclosed by precedent. United States v.
Castleman, 134 S. Ct. 1405, 1415 (2014) (“The ‘use of
force’ in Castleman’s example is not the act of
‘sprinkl[ing]’ the poison; it is the act of employing
poison knowingly as a device to cause physical harm. That
the harm occurs indirectly, rather than directly (as with a
kick or punch), does not matter.”). And in any event,
Jones fails to support it with reference to case law or
other authority. His RICO conviction is therefore a crime
of violence within the meaning of 18 U.S.C. § 924(c).

     Jones also argues that the court abused its discretion
by resentencing him to 30 years in prison. Acknowledging
the significant reduction from his original 50 year
sentence (Appellant’s Br. at 15), Jones maintains that he
should have received at most a fifteen-year concurrent
sentence on the racketeering and drug offenses, which would
match the length of his original 2010 sentencing on those
specific counts, and a resulting total sentence of 25
years.
                             5
     This argument fails because the district court did not
err by exercising its broad discretion to determine its own
resentencing package. See United States v. Pimienta-
Redondo, 874 F.2d 9, 14 (1st Cir. 1989) (en banc). In
recognition of the district court’s flexible powers at
resentencing, “we have frequently upheld increased
sentences on remaining counts after convictions of a
related section 924(c) count has been vacated.” United
States v. Vasquez, 85 F.3d 59, 61 (2d Cir. 1996)
(collecting cases). Jones had no entitlement or
expectation that his sentence on each count would remain
identical if one or more of his convictions were
successfully vacated. See United States v. Morales, 185
F.3d 74, 85 (2d Cir. 1999); United States v. Mata, 133 F.3d
200 (2d Cir. 1998) (per curiam) (imposing a higher sentence
on remaining counts following the vacatur of a § 924(c)
conviction).

     Jones claims the district court provided insufficient
grounds for adding five years to the original fifteen-year
sentence on his racketeering and drug convictions. But the
district court explained that it was reconfiguring the
sentence in toto to account for the original 35 years that
it would have imposed at sentencing in the absence of the
vacated Section 924(c) count. It also considered Jones’s
recent rehabilitation in ordering an overall sentence
reduction. The court recited the reasoning behind the
original fifty-year sentence, including vicious and violent
conduct that spanned the shooting of one victim and pistol-
whipping of another, and it outlined in detail how the new
sentencing package fit together. There was no error. See
Greenlaw v. United States, 554 U.S. 237, 253 (2008).

     For the foregoing reasons, and finding no merit in
Jones’s other arguments, we hereby AFFIRM the amended
judgment of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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