UNITED STATES v. LIN (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). Xing Lin was convicted after a jury trial on four counts, including murder through use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(j). Section 924(j) prescribes certain penalties if a defendant causes the death of a person while violating 18 U.S.C. § 924(c). 18 U.S.C. § 924(j). Section 924(c) punishes “any person who, during and in relation to any crime of violence ․ for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” Id. § 924(c)(1).

We previously affirmed the § 924(j) conviction on the ground that Lin’s extortion scheme was a “crime of violence” under the residual clause of the statutory definition, 18 U.S.C. § 924(c)(3)(B). See United States v. Xing Lin, 752 F. App'x 106, 107 (2d Cir.), vacated, ––– U.S. ––––, 140 S. Ct. 98, 205 L.Ed.2d 3 (2019) (mem.). That conclusion is no longer tenable in light of Davis, which held that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. 139 S. Ct. at 2336.

Accordingly, we VACATE Lin’s judgment of conviction on the 18 U.S.C. § 924(j) count in its entirety, but we AFFIRM the judgment of conviction on all other counts except as to sentence, which we VACATE and REMAND to allow the District Court to consider anew the appropriate sentence for Lin’s crimes in the absence of his now-vacated § 924(j) conviction.