     16‐1538‐cr
     United States v. Delcid

                                 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
     ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
     COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 7th day of October, two thousand nineteen.
 4
 5           PRESENT: RAYMOND J. LOHIER, JR.,
 6                            CHRISTOPHER F. DRONEY,
 7                                    Circuit Judges,
 8                            JED S. RAKOFF,
 9                                    District Judge.
10           ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11           UNITED STATES OF AMERICA,
12
13                             Appellee,
14
15                     v.                                                         No. 16‐1538‐cr
16
17           RINGO DELCID,
18
19                            Defendant‐Appellant.**
20           ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

     * Judge Jed S. Rakoff, of the United States District Court for the Southern District of
     New York, sitting by designation.
     ** The Clerk of Court is directed to amend the official caption to conform with the
     above.
 1         FOR APPELLANT:                                MARY ANNE WIRTH, Bleakley
 2                                                       Platt & Schmidt, LLP, White
 3                                                       Plains, NY
 4
 5         FOR APPELLEE:                                 ALIXANDRA E. SMITH, Assistant
 6                                                       United States Attorney (Jo Ann
 7                                                       M. Navickas, David C. Pitluck,
 8                                                       Assistant United States
 9                                                       Attorneys, on the brief), for
10                                                       Richard P. Donoghue, United
11                                                       States Attorney for the Eastern
12                                                       District of New York,
13                                                       Brooklyn, NY

14         Appeal from a judgment of the United States District Court for the Eastern

15   District of New York (I. Leo Glasser, Judge).

16         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

17   AND DECREED that the judgment of the District Court is AFFIRMED in part

18   and VACATED in part and REMANDED for resentencing.

19         Defendant‐appellant Ringo Delcid appeals from a judgment of conviction

20   in the District Court (Glasser, J.) following a guilty plea to two counts of

21   conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and

22   to one count of unlawful possession of a firearm during the commission of one of

23   the robbery conspiracies, a crime of violence, in violation of 18 U.S.C.

24   § 924(c)(1)(A). On appeal, Delcid principally argues that his conviction under §

25   924(c) should be vacated because conspiracy to commit Hobbs Act robbery is not
 1   a crime of violence under the elements clause of that statute, § 924(c)(3)(A), and

 2   because the residual clause of that statute, § 924(c)(3)(B), is unconstitutionally

 3   vague. We assume the parties’ familiarity with the underlying facts and prior

 4   record of proceedings, to which we refer only as necessary to explain our

 5   decision to vacate in part and affirm in part and remand for resentencing.

 6         After oral argument, we held this appeal in abeyance pending

 7   determination of the petitions for certiorari filed in United States v. Hill, 890 F.3d

 8   51 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019), and United States v. Barrett,

 9   903 F.3d 166 (2d Cir. 2018), vacated, 139 S. Ct. 2774 (2019). Those cases

10   considered whether Hobbs Act robbery and conspiracy to commit Hobbs Act

11   robbery, respectively, were crimes of violence within the meaning of § 924(c).

12   As relevant here, the Supreme Court granted the petition in Barrett, vacated the

13   judgment, and remanded for further consideration in light of United States v.

14   Davis, 139 S. Ct. 2319 (2019), in which the Supreme Court held that the residual

15   clause in § 924(c)(3)(B) is unconstitutionally vague. On remand in Barrett, this

16   Court held that “Davis precludes us from concluding . . . that Barrett’s Hobbs Act

17   robbery conspiracy crime qualifies as a § 924(c) crime of violence.” United

18   States v. Barrett (Barrett II), 937 F.3d 126, 127 (2d Cir. 2019). We accordingly

                                                3
 1   vacated Barrett’s conviction for using a firearm in committing Hobbs Act robbery

 2   conspiracy.

 3         In light of Barrett II, we vacate Delcid’s conviction for violating § 924(c)

 4   (Count Five) and remand for resentencing. We therefore do not consider

 5   Delcid’s related claim of ineffective assistance of counsel. Delcid does not

 6   challenge his two other counts of conviction on appeal, and so we affirm the

 7   judgment as to those counts.

 8         For the foregoing reasons, we VACATE the judgment of the District Court

 9   as to Delcid’s violation of 18 U.S.C. § 924(c) and REMAND for further

10   proceedings consistent with this order. We AFFIRM Delcid’s conviction in all

11   other respects.

12                                          FOR THE COURT:
13                                          Catherine O=Hagan Wolfe, Clerk of Court




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