UNITED STATES v. RODRIGUEZ (2020)

SUMMARY ORDER

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the October 9, 2015 judgment of conviction entered in the United States District Court for the Eastern District of New York against defendant Marcos Rodriguez be and it hereby is VACATED; Rodriguez's conviction on count 3 is REVERSED; his convictions on counts 1 and 2 are AFFIRMED; and the matter is REMANDED FOR RESENTENCING on counts 1 and 2, without an enhancement under 18 U.S.C. § 924(c).

In United States v. Martinez, 862 F.3d 223 (2d Cir. 2017) (“Martinez”), this Court affirmed the convictions of defendant Marcos Rodriguez for conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) (count 1), conspiracy to distribute narcotics in violation of 21 U.S.C. § 846 (count 2), and brandishing a firearm during and in relation to a “crime of violence,” 18 U.S.C. § 924(c)(3), and/or narcotics trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 3). The jury expressly found that the gun referred to in count 3 had been brandished in connection with the robbery conspiracy. Rodriguez was sentenced principally to 188 months' imprisonment on counts 1 and 2, and to a consecutive imprisonment term of seven years on count 3. We rejected Rodriguez's “sole contention,” 862 F.3d at 235, that the district court had erred in rejecting his statute-of-limitations defense to count 3, concluding that such a defense had not been timely raised, see id.

Rodriguez petitioned this Court for rehearing on his statute-of-limitations contention, arguing that he had timely asserted the defense by adopting a motion of one of his codefendants. His petition was denied because, inter alia, the motion Rodriguez purported to adopt had asserted a statute-of-limitations defense that was based only on facts that were applicable to the personal conduct of the codefendant, not to Rodriguez, and on arguments that Rodriguez disavowed in his appeal. See United States v. Rodriguez, 888 F.3d 26, 29 (2d Cir. 2018) (“Rodriguez”).

Rodriguez petitioned the United States Supreme Court for certiorari, challenging our rejections of his statute-of-limitations contentions in Martinez and Rodriguez, and contending additionally that the residual clause of § 924(c)(3) is void for vagueness. The Supreme Court granted the petition, vacated our judgment, and remanded to us for further consideration, in light of its decision in United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which held that the residual clause in § 924(c)(3) is unconstitutionally vague.

In United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) (“Barrett”), following a similar post-Davis remand from the Supreme Court, this Court held that Davis “precludes” a conclusion “that [a] Hobbs Act robbery conspiracy crime qualifies as a § 924(c) crime of violence,” 937 F.3d at 127. The parties here have submitted supplemental briefs, agreeing that, while Rodriguez's convictions for robbery conspiracy and drug conspiracy should be affirmed in all respects, his convictions and sentence with respect to the § 924(c) count must be vacated pursuant to Davis and Barrett, and the matter should be remanded for resentencing without the § 924(c) enhancement.

For the foregoing reasons, the judgment of the district court is vacated; Rodriguez's conviction on count 3 is reversed; his convictions on counts 1 and 2 are affirmed; and the matter is remanded for resentencing of Rodriguez on counts 1 and 2, without a § 924(c) enhancement.