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United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee, v. Michael SMITH, a.k.a. Bum Jew, Defendant-Appellant.


Decided: May 20, 2020

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. FOR APPELLEE: CHRISTOPHER C. CAFFARONE, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York. FOR DEFENDANT-APPELLANT: MURRAY E. SINGER, Port Washington, New York.


Defendant-appellant Michael Smith appeals from a final judgment entered April 16, 2019 convicting him, following a guilty plea, of conspiracy to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (“Count One”) and using a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c) (“Count Six”). Smith was sentenced to 240 months' imprisonment and five years' supervised release. On appeal, Smith argues that Count Six of his conviction must be vacated because it was predicated on conspiracy to assault, which is no longer a valid predicate crime to a § 924(c) charge. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Smith was a member of the Nine Trey Bloods from 2008 to 2014. On June 16, 2013, Smith and other members of the gang went to a barbecue to exact revenge on Peter Knudsen, who had previously shot one of their associates. Although Smith did not know that the group was going to shoot Knudsen, he and the others brought guns “to use ․ if necessary.” App'x at 60. At the barbecue, Smith and Knudsen got into a physical altercation, and one of Smith's accomplices shot Knudsen twice, non-fatally.

Smith was charged in an eight-count, superseding indictment on October 21, 2015. Count One charged Smith with narcotics distribution conspiracy, as noted above. Count Four charged Smith with engaging in a conspiracy to assault Knudsen (designated as “John Doe”), and Count Five charged Smith with assaulting Knudsen with a dangerous weapon (“to wit: a firearm,” App'x at 18), in violation of N.Y. Penal Law §§ 120.05(2) and 20.00. Count Six -- the § 924(c) count -- charged Smith with using, carrying, or possessing a firearm in relation to or in furtherance of “one or more crimes of violence” -- that is, “the crimes charged in Counts Four and Five.” App'x at 19. Counts Seven and Eight charged Smith with possession with intent to distribute heroin.

On November 9, 2015, Smith entered into a plea agreement with the government. He agreed to admit to two of the six charges -- Counts One and Six. As to Count Six, he agreed to admit that he conspired with others to assault Knudsen; the agreement did not require him to admit that he participated in the actual assault. At his plea allocution, however, Smith did, in fact, admit that he participated in the actual assault, and the district court accepted his plea.

After the plea allocution but before sentencing, Smith filed a motion asking the court to issue a concurrent sentence for the two counts he pled guilty to, arguing that, in light of recent changes in the law, conspiracy to commit assault was no longer a valid predicate crime under § 924(c). The district court denied the motion and sentenced Smith to 240 months' imprisonment (180 months on Count One and 60 months on Count Six, consecutively) and five years' supervised release. This appeal followed.

At the time of Smith's plea allocution, § 924(c)(3) provided two definitions for a “crime of violence”: a felony that either “(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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.” 18 U.S.C. § 924(c)(3). After Smith pled guilty but before he was sentenced, the Supreme Court held that § 924(c)(3)(B) is unconstitutionally vague. United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019). Accordingly, as the government now concedes, Smith's conviction on Count Six can no longer be based on the predicate of conspiracy to commit assault. See, e.g., United States v. Barrett, 937 F.3d 126, 127-28 (2d Cir. 2019) (holding that conspiracy to commit Hobbs Act robbery is not categorically a crime of violence). The government argues, however, that Smith's conviction on Count Six is still valid because he also allocuted to assault, and assault with a dangerous weapon in violation of N.Y. Penal Law § 120.05(2) does constitute a “crime of violence” under analogous laws. See United States v. Tabb, 949 F.3d 81, 86 (2d Cir. 2020) (“[A]ttempted assault in the second degree under N.Y.P.L. § 120.05(2) is categorically a crime of violence under the Force Clause of U.S.S.G. § 4B1.2.”); Singh v. Barr, 939 F.3d 457, 464 (2d Cir. 2019) (a “conviction [under N.Y.P.L. § 120.05(2)] falls within [18 U.S.C.] § 16(a)'s definition of a crime of violence”).

We agree. While Smith did not plead guilty to the assault count (Count Five), a conviction under § 924(c) may be predicated on an offense that the defendant was not convicted of -- or even charged with -- as long as there is “legally sufficient proof of the underlying offense.” Johnson v. United States, 779 F.3d 125, 129-30 (2d Cir. 2015). The record of the proceedings here makes clear that Smith's guilty plea to Count Six was also predicated on the assault of Knudsen. First, Smith was charged with assault in Count Five of the indictment, and Count Six was predicated on both the conspiracy and the assault. Second, Smith was advised at his plea allocution that if the case went to trial the government would have to prove not only that the assault occurred but also that it was completed in aid of racketeering. Third, Smith admitted at his plea allocution that he did, in fact, participate in the assault. Hence, the record provides “legally sufficient proof of the underlying offense.” Johnson, 779 F.3d at 129.

Even if we assume the district court erred in eliciting the admission from Smith that he participated in the violent assault when Smith was not required to admit as much per his plea agreement, any error was harmless. “[A] defendant who seeks reversal of his conviction after a guilty plea ․ must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). We look to the entire record to determine whether the defendant would not have pled guilty had there been no error. Id. Here, Smith has not shown “a reasonable probability” that he would not have pled guilty if he had known in advance that he would be required to admit to the actual assault. Id. First, he admitted in open court that he participated in the assault, and he was represented by counsel when he made this admission. Second, the government gave Smith “coverage” for another assault that he committed, App'x at 55, and, on motion of the government, all open counts were dismissed from the indictment. On Count Three, Smith could have received an additional 25 years in jail. Finally, Smith's attorney admitted at the plea allocution that he did not know of any valid defense. Accordingly, any error that the district court may have made in this respect was harmless.

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We have considered Smith's remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court.

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