14-4133
United States v. Xing Lin

                     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 20th day of March, two thousand seventeen.

    PRESENT: JON O. NEWMAN,
             DENNIS JACOBS,
                           Circuit Judges,
             LEWIS A. KAPLAN,*
                           District Judge,

    - - - - - - - - - - - - - - - - - - - -X
    UNITED STATES OF AMERICA,
             Appellee,

                 -v.-                                               14-4133**

    XING LIN,
             Defendant-Appellant.
    - - - - - - - - - - - - - - - - - - - -X



           *
           Judge Lewis A. Kaplan, of the United States District
    Court for the Southern District of New York, sitting by
    designation.
           **
            We respectfully direct the Clerk of Court to amend
    the caption.
                                             1
FOR APPELLANT:             MEGAN WOLFE BENETT, Kreindler &
                           Kreindler LLP, New York, NY.

FOR APPELLEE:              JENNIFER E. BURNS (with Michael
                           Ferrara on the brief), for Preet
                           Bharara, United States Attorney
                           for the Southern District of New
                           York, New York, NY.

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

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

     Xing Lin appeals from the judgment of the United States
District Court for the Southern District of New York
(Cedarbaum, J.). A jury convicted Lin of extortion,
racketeering, conspiracy to commit racketeering, and murder
through the use of a firearm during and in relation to a
crime of violence, but acquitted him of conspiracy to commit
extortion. The district court sentenced Lin principally to
life in prison on the murder and racketeering offenses, and
to a concurrent twenty-year sentence on the substantive
extortion offense. We assume the parties’ familiarity with
the underlying facts, the procedural history, and the issues
presented for review.

     1. Lin argues that the district court improperly
rejected his attempt to plead guilty. At Lin’s first
attempted plea allocution, the district court was
unconvinced that Lin had adequately pleaded to all elements
of the charged crime. Near the end of that proceeding, the
district court stated: “I will accept the plea, but I would
really like to hear another allocution.” App’x at 84. The
district court requested additional legal authorities and a
further allocution the following day. However, when Lin
appeared the next day, his counsel immediately informed the
district court that Lin was “not prepared to go forward with
his plea of guilty that we attempted to enter yesterday.”
App’x at 91.

     We review a district court’s decision to accept or
reject a guilty plea for abuse of discretion, United States
v. Severino, 800 F.2d 42, 46-47 (2d Cir. 1986). The
district court did not abuse its discretion in asking the
                             2
parties to reappear the next day to explain the legal and
factual basis for the plea. The district court did not
improperly “reject” Lin’s guilty plea; Lin only attempted to
enter a plea the previous day, the district court said it
“will” accept it after further allocution, but Lin then
decided not to enter a plea.

     2.a. Lin was convicted of using a firearm “in relation
to a crime of violence.” See 18 U.S.C. § 924(c)(1)(A), (j).
Lin argues that the predicate crime, Hobbs Act extortion, is
not a “crime of violence.” In relevant part, § 924 defines
a “crime of violence” as a felony 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)(B). After Lin’s
trial, the Supreme Court provided guidance on how to
construe a similar statutory provision: “[d]eciding whether
the . . . clause covers a crime . . . requires a court to
picture the kind of conduct that the crime involves in ‘the
ordinary case,’ and to judge whether that abstraction
presents a serious potential risk of physical injury.”
Johnson v. United States, 135 S. Ct. 2552, 2557 (2015). Lin
argues that the “ordinary case” of Hobbs Act extortion does
not involve a substantial risk of the use of physical force.

     Because Lin did not raise this argument below, it is
reviewed for plain error. See Fed. R. Crim. P. 52(b).
Plain error review requires the defendant to show: “(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, which in the ordinary
case means it affected the outcome of the district court
proceedings; and (4) the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Vilar, 729 F.3d 62, 70 (2d
Cir. 2013) (quoting United States v. Marcus, 560 U.S. 258,
262 (2010)).

     “For an error to be plain, it must, at a minimum, be
clear under current law.” United States v. Whab, 355 F.3d
155, 158 (2d Cir. 2004) (quotation marks omitted) (quoting
United States v. Weintraub, 273 F.3d 139, 152 (2d Cir.
2001)). “We typically will not find such error where the
operative legal question is unsettled, including where there
is no binding precedent from the Supreme Court or this
Court.” Id. (quotation marks omitted).


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     It is far from clear that the “ordinary case” of Hobbs
Act extortion would not entail a substantial risk of the use
of physical force. Although Lin cites several Second
Circuit cases indicating that fear of economic harm can be
sufficient for Hobbs Act extortion, these examples are not
necessarily the “ordinary case.” Therefore, even if the
district court did err, such error was not “clear or
obvious.”1

     b. Lin asserts error in the aiding and abetting
instructions on his 18 U.S.C. § 924(c) count. After Lin’s
trial, the Supreme Court decided Rosemond v. United States,
134 S. Ct. 1240, 1251-52 (2014), which held that a defendant
may not be convicted for aiding and abetting use of a
firearm in relation to a crime of violence unless the
district court instructs the jury that the defendant had
“advance knowledge of a firearm’s presence.” The district
court did not do so, and the government concedes that
Rosemond renders the instructions erroneous.

     We review for plain error and affirm Lin’s conviction
because there is not a “reasonable probability that the
error affected the outcome of the trial.” United States v.
Prado, 815 F.3d 93, 102 (2d Cir. 2016) (quoting United
States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010)).

     Lin argues that he did not know his bodyguard was
carrying a weapon when Lin and his bodyguard entered a
nightclub in July 2004; this bodyguard shot three people,
killing two. However, two witnesses testified that Lin
verbally ordered his bodyguard to “shoot” one of the
victims, which would support an inference of foreknowledge.
App’x at 308, 640. Lin attacks the credibility of these
witnesses and argues that there is no other evidence to
suggest Lin’s advance knowledge. However, a third witness
testified that, in a phone call after the murder, Lin said
he had only intended his bodyguard “to shoot [the victim] on
his arms or legs.” App’x at 511. The testimony of these
three witnesses defeats any “reasonable probability” that




    1
       Lin also asserts for the first time on appeal that
18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. We
rejected that argument in United States v. Hill, 832 F.3d
135, 145 (2d Cir. 2016).
                             4
the erroneous jury instruction would have affected the
trial’s outcome.2

     3. Lin’s racketeering convictions required a jury
finding of at least two acts of racketeering activity. See
18 U.S.C. §§ 1962(c) & (d); 1961(5). The special verdict
listed five acts of racketeering activity: murder in
violation of state law, extortion, and three acts of
conducting an illegal gambling operation. Lin contends that
there is insufficient evidence to support the findings as to
gambling because the government failed to introduce evidence
that he conducted games of chance as defined by state law.

     Assuming Lin is correct, the jury still would have
found that Lin engaged in two acts of racketeering (murder
and extortion). Although two predicate acts can justify a
racketeering conviction, Lin argues that the jury might have
acquitted him if it had to rely only on the murder and
extortion charges. In at least two instances, we have
declined to uphold racketeering convictions after
invalidating several of the predicate acts, notwithstanding
two or more remaining valid predicate acts. See United
States v. Biaggi, 909 F.2d 662, 693 (2d Cir. 1990); United
States v. Delano, 55 F.3d 720, 728-29 (2d Cir. 1995).
However, in those cases, we emphasized that the invalidated
predicate acts “represented the bulk of th[e] [racketeering]
prosecution, eclipsing all else.” Delano, 55 F.3d at 729.
It cannot be said that issues related to gambling “eclipsed”
discussion of murder and extortion. Most of the
government’s closing argument dealt with the murders and
other violence associated with Lin. We decline to vacate
Lin’s racketeering convictions.

     4. Lin requests a new trial based on the government’s
purportedly improper summation. “[A] defendant who seeks to
overturn his conviction based on alleged prosecutorial
misconduct in summation bears a heavy burden,” and must show
that the allegedly improper comments, “in the context of the
entire trial, [were] so severe and significant as to have


    2
       We would reach the same conclusion regardless of
whether the government or Lin bears the burden of
establishing prejudice (or the lack thereof). Accordingly,
we need not consider whether the “modified plain error
rule,” which places the burden on the government, remains
good law. See Prado, 815 F.3d at 102.
                             5
substantially prejudiced him, depriving him of a fair
trial.” United States v. Farhane, 634 F.3d 127, 167 (2d
Cir. 2011) (quotation marks and citations omitted).

     Lin asserts that the government summation improperly
shifted the burden of proof to the defense, disparaged
defense counsel, and vouched for the government’s witnesses.
We disagree. When read in context, the prosecutor’s
comments fairly responded to Lin’s attack on the credibility
of the government witnesses. “The government is ordinarily
permitted to respond to arguments impugning the integrity of
its case.” United States v. Bautista, 23 F.3d 726, 733 (2d
Cir. 1994) (quotation marks and citation omitted). In any
event, Lin has not sustained his “heavy burden” of showing
that the comments were so severe in the context of the
entire proceeding as to deprive Lin of a fair trial.
Farhane, 634 F.3d at 167.

     5. Lin challenges his sentence as procedurally and
substantively unreasonable. Lin did not raise these
challenges below, so they are reviewed for plain error.
United States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009).

     a. Lin argues that the sentencing range was
miscalculated because his racketeering guideline range was
pegged to first-degree murder rather than second-degree
murder. Lin points to no precedent indicating this was
error. Indeed, we have held in a similar case that first-
degree murder could be the proper reference, at least in
some circumstances. See United States v. Minicone, 960 F.2d
1099, 1110 (2d Cir. 1992). If there was error, it was not
“clear,” and therefore not plain. See Whab, 355 F.3d at
158.

     b. Lin contends that the district court’s brief
explanation of the sentence was insufficient to ensure that
the district court adequately considered the appropriate
sentencing factors. However, the district court
acknowledged the seriousness of Lin’s crime, mentioned his
personal traits, stated that she reviewed all of the
parties’ filings, listened to Lin’s sentencing statement,
and adopted the findings contained in the Presentence
Report. Lin has failed to show that the brevity of the
court’s explanation “seriously affects the fairness,
integrity or public reputation of judicial proceedings.”
Vilar, 729 F.3d at 70. Consequently, there is no plain
error.

                             6
     c. Lin alludes to the possibility that his ethnicity
affected his sentence. The comments that Lin cites do not
come close to suggesting that the district court’s
sentencing was improperly influenced by race.

     d. Lin argues his life sentence is substantively
unreasonable. But Lin was responsible for his subordinate
purposefully killing one person and inadvertently killing a
bystander. Lin also engaged in racketeering and extortion.
His sentence was “within the range of permissible
decisions,” and we do not disturb it. United States v.
Rigas, 490 F.3d 208, 238 (2d Cir. 2007) (quoting United
States v. Fuller, 426 F.3d 556, 562 (2d Cir. 2005)).

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

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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