UNITED STATES v. Rudy Mendoza, aka Sealed Defendant, 8, aka Raul Perez, aka Pedro Mendoza, Defendant-Appellant. (2020)

SUMMARY ORDER

This case returns to us from the Supreme Court for reconsideration in light of United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). Rudy Mendoza appealed from the judgment of the United States District Court for the Southern District of New York (McMahon, Ch.J.), sentencing him principally to 300 months’ imprisonment after conviction on five counts, including (1) participation in the “Vagos Gang” racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); (2) participation in a Vagos Gang-related conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), and 846; (3) participation in a conspiracy to commit Hobbs Act armed robbery of individuals believed to be in possession of 20 kilograms of cocaine, in violation of 18 U.S.C. § 1959; (4) use of a firearm in connection with the robbery conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and (5) participation in a conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine, also in connection with the robbery conspiracy, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Relying on then-Circuit law, we affirmed Mendoza’s conviction on all counts. See United States v. Climico, 754 F. App'x 25, 30-31 (2d Cir. 2018) (summary order), vacated, sub nom. Mendoza v. United States, ––– U.S. ––––, 140 S. Ct. 105, 205 L.Ed.2d 2 (2019) (mem.).

We initially affirmed the 18 U.S.C. § 924(c) conviction for use of a firearm in connection with a “crime of violence” on the ground that Mendoza’s conspiracy to commit Hobbs Act robbery qualifies as a “crime of violence.” Id. That is no longer tenable: “Davis precludes us from concluding ․ that ․ Hobbs Act robbery conspiracy ․ qualifies as a § 924(c) crime of violence.” United States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019).

Accordingly, we VACATE Mendoza’s judgment of conviction on the 18 U.S.C. § 924(c)(1)(A)(i) count in its entirety, but we AFFIRM the judgment of conviction on all other counts for the reasons stated in our October 29, 2018 summary order except as to sentence, which we VACATE and REMAND to allow the District Court to consider anew the appropriate sentence for Mendoza’s crimes in the absence of the consecutive five-year sentence mandated for his now-vacated § 924(c)(1)(A)(i) crime.