16-1653-cr
United States v. Miguel Figueroa

                                  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 3rd day of June, two thousand twenty.

PRESENT:             ROBERT D. SACK,
                     RICHARD C. WESLEY,
                     DENNY CHIN,
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
                    Appellee,

                              -v-                                                  16-1653-cr

MIGUEL FIGUEROA,
                                        Defendant-Appellant,

JOSHUA ORTIZ ROLON, AUGUSTIN TANCO,
                    Defendants.

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FOR APPELLEE:                                                DAVID J. LIZMI, Assistant United States
                                                             Attorney (David C. James, Assistant United
                                           States Attorney, on the brief), for Richard P.
                                           Donoghue, United States Attorney for the
                                           Eastern District of New York, Brooklyn, New
                                           York.

FOR DEFENDANT-APPELLANT:                   MALVINA NATHANSON and Nicholas J.
                                           Pinto, New York, New York.

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

New York (Kuntz, J.).

              ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant-appellant Miguel Figueroa appeals from a judgment entered

May 20, 2016, convicting him, upon his guilty plea, of conspiracy to commit Hobbs Act

robbery in violation of 18 U.S.C. § 1951(a), and use of a firearm in violation of 18 U.S.C.

§ 924(c)(1)(A). The district court sentenced Figueroa principally to 248 months'

imprisonment, to be followed by five years of supervised release. On appeal, Figueroa

challenges his § 924(c) conviction on the grounds that the predicate offense of Hobbs

Act robbery conspiracy is no longer a "crime of violence" in light of the Supreme Court's

decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019),

and this Court's decision in United States v. Barrett, 937 F.3d 126 (2019). We assume the

parties' familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.




                                              2
              Figueroa and two co-defendants were indicted on June 10, 2013, for

conspiracy to distribute heroin and cocaine (Count One) and attempted possession of

cocaine and heroin (Count Two), between January 1, 2013 and May 9, 2013. Eight

months later, on February 27, 2014, a superseding indictment was filed charging

Figueroa with: conspiracy to commit a Hobbs Act robbery (Count One), the same two

narcotics offenses (renumbered Counts Two and Three), and unlawful use of a firearm

"in relation to one or more crime of violence and drug trafficking crimes, to wit: the

crimes charged in Counts One through Three," in violation of 18 U.S.C. § 924(c) (Count

Four). See Gov't App'x at 2-4.

              On June 15, 2015, Figueroa pled guilty to Count One of the superseding

indictment charging Hobbs Act robbery conspiracy and Count Four charging the

unlawful use of a firearm. As part of the plea agreement, the government agreed to

dismiss the narcotics offenses charged in Counts Two and Three. At his plea allocution,

Figueroa admitted that the purpose of the robbery conspiracy charged in Count One

and firearm offense charged in Count Four was to obtain narcotics for distribution:

              DEFENDANT: . . . I was called and I was offered. They
              called me, they wanted to talk to me, they came over, they
              offered me some drugs to sell for them and I agreed to it.

              THE COURT: Okay. They called you and they offered you
              some drugs to sell for them and they agreed to it.

              DEFENDANT: Yeah, I agreed to it, to sell for them.
              ...


                                             3
             DEFENDANT: And then May 9th they called me and I met
             up with them, and when I got there the plan was, you know,
             somebody was supposed to buy and then, the guy, he never
             had the money for it . . . he never had the money to buy the
             [] drugs, so my plan was to just go over there when they
             gave me the money, to just, my plan was to go over there
             when they gave me the drugs I was going to just disappear
             and Ortiz was with us . . . . He asked me, you think I should
             bring a gun? And I was like, I mean, you could bring it just
             in case we need it, but I don't think we going to need it
             because if they [the drug suppliers] give it to me, I’m just
             going to disappear on them, I'm not going to come back.

             ...

             DEFENDANT: . . . on May 9th I intended to take the drugs
             because the guy never had no money. He told me I don't got
             no money for that. So, I was like, I'm just going to take it
             then.

             THE COURT: Once you took the drugs, what was your
             intent?

             DEFENDANT: I mean, I have no choice but to sell it.

App'x at 48-51, 53-54.

             On May 3, 2016, the district court sentenced Figueroa principally to 248

months' imprisonment after finding that Figueroa qualified as a career offender

pursuant to U.S.S.G. § 4B1.1(a). The district court noted that Figueroa "planned and

coordinated a conspiracy to steal a large volume of illegal drugs worth hundreds of

thousands of dollars . . . [and] was aware that [his co-defendant] possessed a loaded

handgun that could be used for violent purposes if the situation escalated." App'x at 77.



                                            4
              Judgment was entered May 20, 2016. On appeal, Figueroa challenged the

appeal waiver in his plea agreement and the validity of his § 924(c) conviction, in light

of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Citing

the appeal waiver, the government moved to dismiss Figueroa's appeal. On June 20,

2017, this Court granted the government's motion "with respect to Appellant's appeal of

his term of imprisonment" but denied the motion "with respect to his appeal of his

conviction under 18 U.S.C. § 924(c)." App. Ct. Dkt. 68. This Court also stayed the

appeal "pending final decisions in United States v. Hussain (Barrett), 2d Cir. 14-2641, and

United States v. Hill, 2d Cir. 14-3872." Id. On December 17, 2019, Figueroa moved, with

the government's consent, to lift the stay, and this Court granted that motion the

following day.

                                        DISCUSSION

              On appeal, Figueroa argues that his § 924(c) conviction, for unlawful use

of a firearm, must be vacated because Hobbs Act robbery conspiracy is not a crime of

violence under § 924(c)(3) in light of the Supreme Court's ruling in Davis, 139 S. Ct.

2319. Figueroa did not raise this objection below, however, nor could he inasmuch as

the Supreme Court decided Davis subsequent to Figueroa's conviction. We therefore

review the validity of the conviction for either plain error or modified plain error. See

United States v. Nikolla, 950 F.3d 51, 53 (2d Cir. 2020); United States v. Botti, 711 F.3d 299,

308-09 (2d Cir. 2013). "[We] look not to the law at the time of the trial court's decision to


                                                5
assess whether the error was plain, but rather, to the law as it exists at the time of

review." United States v. Vilar, 729 F.3d 62, 71 (2d Cir. 2013).

              Section 924(c) prohibits the use, carrying, or possession of a firearm

during or in relation to a "crime of violence or drug trafficking crime." 18 U.S.C.

§ 924(c)(1)(A). At the time of Figueroa's conviction, § 924(c)(3) offered two valid

definitions for the "crime of violence" element of § 924(c)(1)(A): a felony that either "(A)

has as an element the use, attempted use, or threatened use of physical force against the

person or property of another, or (B) 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." Id. § 924(c)(3).

              The Supreme Court in Davis held that § 924(c)(3)(B) is unconstitutionally

vague. 139 S. Ct. at 2326-27. And following the Supreme Court's decision in Davis, this

Court concluded that Hobbs Act robbery conspiracy does not qualify as a § 924(c) crime

of violence under § 924(c)(3)(A). See Barrett, 937 F.3d at 127. Accordingly, in light of

these decisions, Figueroa contends that his § 924(c) conviction must be vacated because

Hobbs Act robbery conspiracy cannot serve as a predicate offense as it no longer

qualifies as a crime of violence. The government concedes that Figueroa's § 924(c)

conviction can no longer be predicated on his Hobbs Act robbery conspiracy offense,

but argues that his conviction should be affirmed nonetheless because Figueroa's




                                               6
indictment and plea allocution are sufficient to establish that he used and carried a

firearm in connection with a drug-trafficking crime. We agree with the government.

               Count Four charged Figueroa with unlawful use of a firearm "in relation

to one or more crime of violence and drug trafficking crimes, to wit: the crimes charged in

Counts One through Three." Gov't App'x at 4 (emphasis added). The plea agreement,

which Figueroa signed and affirmed he had read and understood, specifically stated

that Figueroa was agreeing to "plead guilty to . . . use of a firearm in relation to a crime

of violence and a drug trafficking crime." App'x at 19 (emphasis added). And the

judgment makes clear that Figueroa was convicted of Count Four as charged in the

superseding indictment, and therefore predicated on Counts One through Three. 1

               Count Two charged Figueroa with conspiring to distribute and possess

with intent to distribute heroin and cocaine. Gov't App'x at 3. Count Three charged

Figueroa with attempting to distribute and possess with intent to distribute heroin and

cocaine. Id. These counts were dismissed following sentencing. But that does not

necessarily affect predication for purposes of § 924(c).

               A § 924(c) conviction does not require a conviction on the predicate

offense "so long as there is legally sufficient proof that the predicate crime was, in fact,



1       That the judgment referred to Count Four elsewhere as the offense of "unlawful use of a
firearm during a crime of violence," App'x at 94, has no effect on the predication for Count Four
or the fact that Figueroa pleaded guilty to and was convicted of using or carrying a firearm "in
relation to one or more crime of violence and drug trafficking crimes, to wit: the crimes charged
in Counts One through Three," Gov't App'x at 4.
                                                7
committed." Johnson v. United States, 779 F.3d 125, 129 (2d Cir. 2015); see also United

States v. Rivera, 679 Fed. App'x 51, 55-56 (2d Cir. 2017) (summary order) (defendant's

plea allocution provided factual basis for underlying predicate crime); Morgan v. United

States, No. 12-cr-464 (PAC), 2020 WL 1699995, at *2 (S.D.N.Y. Apr. 8, 2020) ("Petitioner's

own allocution provided the factual basis for the underlying Hobbs Act robbery

offense."). Here, Figueroa allocuted sufficiently to committing at least one valid

predicate offense -- the drug trafficking crime charged in Count Three.

              The elements of Count Three are that the defendant: (1) intended to

commit the crime of possession with intent to distribute, and (2) did some act that was a

substantial step in an effort to bring about or accomplish that crime. See 3 Sand Modern

Federal Jury Instructions ¶ 10.01; see also United States v. Anderson, 747 F.3d 51, 74-75 (2d

Cir. 2014). The crime of possession with intent to distribute narcotics requires proof

that: the defendant (1) knowingly (2) possessed narcotics (3) with the specific intent to

distribute them. See 3 Sand Modern Federal Jury Instructions ¶ 56.01; United States v.

Gore, 154 F.3d 34, 45 (2d Cir. 1998).

              Figueroa admitted that, between November 2012 and May 2013, he had

numerous meetings and conversations in which two individuals who purported to be

drug suppliers offered Figueroa drugs that he could then resell. See App'x at 48-55.

Figueroa explained that he had agreed to purchase drugs from these suppliers and, on

May 9, 2013, traveled to Green Acres mall to meet with "them" and either buy or steal


                                              8
the drugs. App'x at 50-51, 54. Figueroa stated that he knew his codefendant, who had

accompanied Figueroa to the May 9 meeting but did not get out of the car, had a gun

with him and -- in the district court's words, with which Figueroa agreed -- "had

[Figueroa's] back." App'x at 56-57. These statements constitute legally sufficient proof

of the drug trafficking crime charged in Count Three. See United States v. Martinez, 775

F.2d 31, 35 (2d Cir. 1985) (stating that a "substantial step must be something more than

mere preparation, yet may be less than the last act necessary before the actual

commission of the substantive crime" (quoting United States v. Manley, 632 F.2d 978, 988-

89 (2d Cir. 1980))). 2

               Moreover, Figueroa's allocution established that the gun was used or

carried during and in relation to the drug trafficking offense charged in Count Three.

See generally United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005) (holding nexus

between firearms offense and drug-trafficking crime sufficient so long as "gun afforded

some advantage (actual or potential, real or contingent) relevant to the vicissitudes of

drug trafficking").




2       See also United States v. Moss, 221 Fed. App'x 79, 81 (2d Cir. 2007) (summary order)
(concluding that the defendant's actions "gather[ing] over $24,000 in cash and show[ing] it to his
prospective seller to demonstrate his willingness to complete the deal" constituted a substantial
step and was sufficient to support the attempt conviction); United States v. Pino-Correa, 185 Fed.
App'x 65, 67 (2d Cir. 2006) (summary order) (concluding that there was a substantial step where
the defendant met with the seller with the understanding that "the sale was to be consummated
on site").
                                                9
              In sum, the superseding indictment and plea agreement gave Figueroa

clear notice that the narcotics offenses charged in Counts Two and Three -- in addition

to the Hobbs Act robbery conspiracy charged in Count One -- were predicates for the

§ 924(c) count. Further, Figueroa's plea allocution contained legally sufficient proof of

the drug trafficking crime charged in Count Three. Accordingly, Figueroa's § 924(c)

conviction under Count Four of the superseding indictment is valid. 3 We thus find no

error, let alone plain error, in his sentence.

                                           *     *    *

              We have considered Figueroa's remaining arguments and conclude they

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

court.

                                            FOR THE COURT:
                                            Catherine O'Hagan Wolfe, Clerk




3      We decline to address Figueroa's challenge to his career offender status under U.S.S.G. §
4B1.1(a) because this Court rejected this claim in its June 20, 2017 Order in response to the
government's motion to dismiss Figueroa's appeal.
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