Gomez v. United States

21-2632
Gomez v. United States
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
A UGUST TERM 2022
No. 21-2632
C ARLOS GOMEZ ,
Petitioner-Appellant,
v.
U NITED STATES OF A MERICA,
Respondent-Appellee.
On Appeal from the United States District Court
for the Southern District of New York
S UBMITTED: NOVEMBER 22, 2022
DECIDED: NOVEMBER 21, 2023
Before: K EARSE , PARK, and MENASHI, Circuit Judges.
Petitioner-Appellant Carlos Gomez appeals from the denial of
his successive § 2255 motion challenging his conviction and
accompanying sentence for using or carrying a firearm in relation to
a crime of violence in violation of 18 U.S.C. § 924(c). In his motion,
Gomez argued that his § 924(c) conviction was invalid in light of
United States v. Davis, 139 S. Ct. 2319 (2019). The district court denied

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the motion because it determined that Gomez’s § 924(c) conviction
rested on the valid predicate crime of murder. The district court
further held that its Pinkerton instruction—which permits a jury to
convict a defendant of a substantive offense committed by his
co-conspirators—did not undermine the validity of the § 924(c)
predicate. We conclude that intentional murder under New York law,
even when the conviction is based on a Pinkerton theory of liability,
qualifies as a crime of violence within the meaning of § 924(c). Under
a Pinkerton theory the defendant is convicted of the substantive
offense—not of conspiring to commit the offense—so he has
committed a crime of violence if the substantive offense is a crime of
violence. Because Pinkerton does not transform a substantive offense
into a conspiracy offense, it does not implicate Davis. Accordingly, we
affirm the judgment of the district court.
Sarah Kunstler, Law Offices of Sarah Kunstler, Brooklyn,
NY, for Petitioner-Appellant.
Brandon D. Harper, Hagan Scotten, Assistant United
States Attorneys, for Damian Williams, United States
Attorney for the Southern District of New York, New
York, NY, for Respondent-Appellee.
MENASHI, Circuit Judge:
Petitioner-Appellant Carlos Gomez, currently incarcerated,
appeals from the denial of his successive § 2255 motion to vacate his
sentence for the use or carrying of a firearm in relation to a crime of
violence in violation of 18 U.S.C. § 924(c). In his motion, Gomez
argued that his § 924(c) conviction—predicated on the murder of and

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the conspiracy to murder Jose Gonzalez Santiago as charged in a
racketeering count—must be vacated because the jury might have
relied on a now-invalid conspiracy predicate. See United States v.
Barrett, 937 F.3d 126, 128 (2d Cir. 2019) (holding that a conspiracy to
commit a crime of violence such as Hobbs Act robbery is not itself a
crime of violence in light of United States v. Davis, 139 S. Ct. 2319
(2019)), vacated on other grounds, 143 S. Ct. 1713 (2023).
The district court denied the motion. United States v. Gomez,
No. 97-CR-696, 2021 WL 3617206 (S.D.N.Y. Aug. 16, 2021). It
determined that Gomez’s § 924(c) conviction rested on the valid
predicate crime of intentional murder under New York law. The
district court further concluded that its Pinkerton instruction—which
permits a jury to convict a defendant of a substantive offense
committed by his co-conspirators—did not undermine the validity of
the substantive murder predicate as a crime of violence. See Pinkerton
v. United States, 328 U.S. 640, 646-47 (1946). Because we have not yet
addressed the issue, the district court issued a certificate of
appealability as to “whether the Court’s jury instruction on Pinkerton
liability affects the validity of an 18 U.S.C § 924(c) predicate.” App’x
32.
We conclude that a conviction for intentional murder under
New York law, even when the conviction is based on a Pinkerton
theory, is a categorical crime of violence that can support a § 924(c)
conviction. Under a Pinkerton theory the defendant is convicted of the
substantive offense—not of conspiring to commit the offense—so he
has committed a crime of violence if the substantive offense is a crime
of violence. Because Pinkerton does not transform a substantive
offense into a conspiracy offense, it does not implicate Davis.
Accordingly, we affirm the judgment of the district court.

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BACKGROUND
In the 1980s and 1990s, Gomez founded and led the
Westchester Avenue Crew, a Bronx-based heroin and cocaine
distribution enterprise. Gomez was arrested in 1997 and was
ultimately indicted on fifteen counts.
The superseding indictment charged Gomez with racketeering
in violation of 18 U.S.C. § 1962(c) (Count 1). Among the racketeering
acts, “Act of Racketeering One” was premised alternatively on the
conspiracy to murder or the murder of Santiago in violation of New
York law. Add. 4. In addition, Gomez was charged with using or
carrying a firearm in relation to a crime of violence in violation of
18 U.S.C. § 924(c) (Count 10). This charge was predicated on “the
conspiracy to murder and murder of Jose Gonzalez Santiago ...
charged as Racketeering Act One in Count One, and in Counts Three
and Four, of this Indictment.” Add. 14.1
I
At trial, the government presented evidence that Gomez
personally ordered the killing of Santiago, provided the .38 caliber
firearm used in the crime, and paid several thousand dollars to the
person who carried out the killing. The government argued that
Gomez ordered the murder in retaliation for the murder of one of
Gomez’s relatives, which Gomez believed may have been a failed
attempt on his own life.
1 Gomez was also charged with conspiracy to murder Santiago in aid of
racketeering in violation of 18 U.S.C. § 1959(a)(5) and with the murder of
Santiago in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1)-(2).
Add. 8-10.

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In instructing the jury on the racketeering count and its
predicate acts, the district court explained the elements of second-
degree murder under New York law. “Racketeering act 1(b) charges
that he murdered and aided and abetted the murder of [Santiago].
Section 125.25 of the penal law of the State of New York makes it a
crime to murder someone.” Supp. App’x 42. “New York law says[] a
person is guilty of murder when with intent to cause the death of
another person he causes the death of such person or of a third
person.” Id.
The district court then explained that, in order to find Gomez
guilty of violating § 924(c), there must be proof that Gomez either
used or carried a firearm—or aided and abetted others in doing so—
during and in relation to a crime of violence for which he could be
prosecuted in federal court, “to wit, the conspiracy to murder and
murder of [Santiago] charged in racketeering act 1 and count 1 and in
counts 3 and 4 of this indictment.” Id. at 48. The district court
informed the jury that to “convict Mr. Gomez under count 10 you
must find the government has proven beyond a reasonable doubt his
involvement in either the conspiracy to murder [Santiago] or the
murder of [Santiago], but not both.” Id. at 49.
The district court instructed the jury on Pinkerton liability as
follows:
If, in light of my instructions, you find beyond a
reasonable doubt that the defendant was a member of the
conspiracy charged in the indictment, for example, the
conspiracy to murder [Santiago], then you may also, but
you are not required to, find him guilty of the
corresponding substantive crime charged, in this
example, the murder of [Santiago] and the use and

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carrying of a firearm during and in relation to the
conspiracy to murder and murder of [Santiago].
Id. The district court then explained that Pinkerton liability required
findings that the substantive offense was committed by members of
the conspiracy pursuant to a common plan or understanding and that
the offense was reasonably foreseeable.
The jury convicted Gomez on four counts: racketeering (Count
One), racketeering conspiracy (Count Two), using or carrying a
firearm during a crime of violence (Count Ten), and narcotics
conspiracy (Count Fifteen). As to racketeering, the jury found that
both the murder of Santiago and the conspiracy to commit the murder
had been proven. Add. 32. The jury convicted Gomez on the § 924(c)
charge in relation to the same murder and conspiracy to murder. Add.
32-33.2
Pursuant to the then-mandatory Sentencing Guidelines, the
district court sentenced Gomez to three concurrent life sentences—for
racketeering, racketeering conspiracy, and narcotics conspiracy—
2 Gomez was acquitted of Counts Three and Four, which had re-charged
the racketeering acts as in-aid-of-racketeering federal crimes. Acquittal on
these counts is consistent with the jury’s racketeering conviction. As the
district court explained, federal murder in aid of racketeering “adds an
additional element to state murder law: [that] the murder be ‘as
consideration for ... anything of pecuniary value from an enterprise
engaged in racketeering activity, or for the purpose of gaining entrance to
or maintaining or increasing position in an enterprise engaged in
racketeering activity.’” Gomez, 2021 WL 3617206, at *3 (quoting 18 U.S.C.
§ 1959(a)). The government’s theory was that Gomez ordered Santiago’s
murder as payback for what Gomez took to be an attempt on his own life.
The jury could have found that Gomez was liable for the murder but lacked
the requisite motivation for pecuniary gain or enhancement of position.

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followed by a consecutive sixty-month sentence for the § 924(c)
conviction.
II
The jury convicted Gomez in September 1999 and he was
sentenced in July 2000. In December 2001, we affirmed the judgment
on direct appeal. United States v. Feliciano, 26 F. App’x 55, 57 (2d Cir.
2001). In March 2003, the district court denied Gomez’s first § 2255
motion and declined to issue a certificate of appealability.
In 2021, we granted Gomez leave to file a successive § 2255
motion in light of Davis. The district court issued an opinion denying
the motion but granted a certificate of appealability “regarding the
issue of whether the Court’s jury instruction on Pinkerton liability
affects the validity of an 18 U.S.C. § 924(c) predicate.” App’x 32.
Proceeding pro se, Gomez appealed the judgment denying his § 2255
motion.
After the appeal was submitted, we ordered the appointment
of counsel for Gomez and instructed the parties to address
(1) whether the district court’s instruction on Pinkerton liability
affected the validity of Gomez’s 18 U.S.C. § 924(c) conviction;
(2) whether Gomez’s claim is subject to the concurrent sentence
doctrine; (3) whether Gomez’s claim has been procedurally defaulted;
and (4) whether any error was harmless.
DISCUSSION
A federal inmate may move the district court to “vacate, set
aside or correct” a sentence if “the sentence was imposed in violation
of the Constitution or laws of the United States ... or [the sentence] is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). In
reviewing the denial of Gomez’s § 2255 motion, we review the district

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court’s legal conclusions de novo and defer to its findings of fact unless
those findings are clearly erroneous. Rivera v. United States, 716 F.3d
685, 687 (2d Cir. 2013).
I
We first consider the government’s arguments for not reaching
the merits based on the concurrent sentence doctrine, procedural
default, and harmless error. We are unable to avoid reaching the
merits on any of these bases.
A
The concurrent sentence doctrine is “a rule of judicial
convenience” that “allows courts, in their discretion, to avoid
reaching the merits of a claim altogether in the presence of identical
concurrent sentences since a ruling in the defendant’s favor would
not reduce the time served or otherwise prejudice him in any way.”
Kassir v. United States, 3 F.4th 556, 561 (2d Cir. 2021) (internal
quotation marks and footnote omitted). In addition, we have
discretion to apply the doctrine in the context of challenged
consecutive sentences when (1) the collateral challenge will have no
effect on the time the defendant must remain in custody and (2) the
unreviewed conviction will not yield additional adverse collateral
consequences. Al-’Owhali v. United States, 36 F.4th 461, 467 (2d Cir.
2022).
Gomez is currently serving three concurrent terms of life
imprisonment for three separate counts, to be followed by a sixty-
month sentence for the § 924(c) conviction that he now challenges
through his § 2255 motion. He received his sentence when the
Guidelines were understood to be mandatory. See United States v.
Booker, 543 U.S. 220, 245 (2005) (invalidating “the provision of the
federal sentencing statute that makes the Guidelines mandatory”).

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The government argues that we should decline to consider the
merits of Gomez’s challenge based on the concurrent sentence
doctrine because Gomez is serving multiple unchallenged life
sentences. Gomez responds that if his challenge were successful, “it is
possible, even probable, that [he] would receive a sentence of less than
life on Counts One, Two and Fifteen at a re-sentencing.” Appellant’s
Supp. Br. 34. Therefore, “the use of the concurrent sentencing doctrine
as grounds to bar a resentencing would have the very real
consequence of denying Mr. Gomez … a chance at a sentence of less
than life imprisonment.” Id.
We cannot conclude that Gomez’s “collateral challenge will
have no effect on the time [he] must remain in custody.” Al-’Owhali,
36 F.4th at 467. If his challenge were successful, the district court
would have “discretion to select the appropriate relief from a menu
of options,” which may include resentencing for sentences given
when the Guidelines were mandatory. United States v. Peña, 58 F.4th
613, 619 (2d Cir. 2023); see United States v. Augustin, 16 F.4th 227, 232
(6th Cir. 2021) (“Resentencing may also be necessary if a court must
exercise significant discretion in ways it was not called upon to do at
the initial sentencing. For instance, if the court vacates a mandatory-
minimum sentence and then is able to consider the statutory
sentencing factors for the first time.”) (internal quotation marks and
citation omitted). We decline to avoid the merits of Gomez’s challenge
based on the concurrent sentence doctrine.
B
The government next argues that Gomez’s challenge is
procedurally defaulted. “Where a defendant has procedurally
defaulted a claim by failing to raise it on direct review, the claim may
be raised in habeas only if the defendant can first demonstrate either

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cause and actual prejudice, or that he is actually innocent.” Bousley v.
United States, 523 U.S. 614, 622 (1998) (internal quotation marks and
citations omitted).
In this case, however, the government did not raise procedural
default in the district court and therefore that defense is either waived
or forfeited. Appellee’s Supp. Br. 11 (acknowledging that the
government has forfeited the procedural default defense); see United
States v. Canady, 126 F.3d 352, 360 (2d Cir. 1997) (“[B]ecause the
government failed to raise its procedural default defense in the
district court, it is precluded from doing so now.”); Cone v. Bell, 556
U.S. 449, 486 n.6 (2009) (Alito, J. concurring) (“Unlike exhaustion,
procedural default may be waived if it is not raised as a defense.”).
We decline to avoid reaching the merits of Gomez’s challenge on the
basis of procedural default.
C
We also cannot conclude, assuming the district court erred, that
any error was harmless. “[I]n the context of a § 924(c) conviction,
where a jury’s finding of guilt is based on two predicates, only one of
which can lawfully sustain guilt, we will find the error harmless when
the jury would have found the essential elements of guilt on [an]
alternative charged predicate that would sustain a lawful conviction
beyond a reasonable doubt.” Stone v. United States, 37 F.4th 825, 831
(2d Cir. 2022) (internal quotation marks omitted). We cannot be
certain that the jury did not convict based on a Pinkerton theory.
Assuming that it did, whether the Pinkerton instruction was harmless
depends on the answer to the merits question before us. We therefore
must turn to the merits.

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II
Gomez argues that his § 924(c) conviction is invalid because it
may have rested on an impermissible conspiracy predicate and, even
if it did not, the district court’s Pinkerton instruction may have led the
jury to find Gomez guilty of substantive murder by virtue of his
participation in a conspiracy. We conclude that because the jury
found that Gomez committed both substantive murder and murder
conspiracy, there is no risk that the § 924(c) conviction was based on
an impermissible predicate. The Pinkerton instruction does not alter
this conclusion. Even if the jury relied on a Pinkerton theory to find
that Gomez committed substantive murder, it still would qualify as a
permissible predicate crime of violence.
A
Section 924(c) criminalizes the possession or use of a firearm
“during and in relation to any crime of violence ... for which the
[defendant] may be prosecuted in a court of the United States.”
18 U.S.C. § 924(c)(1)(A). “Crime of violence” is defined in two
statutory provisions. First, the elements clause defines a crime of
violence as a felony that “has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another.” Id. § 924(c)(3)(A). Second, the residual clause defines a
crime of violence as a felony “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.” Id. § 924(c)(3)(B).
In Davis, the Supreme Court held the residual clause to be
unconstitutionally vague. See 139 S. Ct. at 2336. As a result, a § 924(c)
conviction remains valid only if it rests on a predicate offense that
satisfies the definition in the elements clause. In other words, the
underlying crime of violence must have “as an element the use,

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attempted use, or threatened use of physical force against the person
or property of another.” 18 U.S.C. § 924(c)(3)(A).
To determine whether a predicate crime satisfies the elements
clause, courts “employ what has come to be known as the ‘categorical
approach.’” United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018) (quoting
Taylor v. United States, 495 U.S. 575, 600 (1990)). The categorical
approach requires a court to identify “the minimum conduct
necessary for a conviction of the predicate offense … and then to
consider whether such conduct amounts to a crime of violence under
§ 924(c)(3)(A).” Id. at 56. “For this analysis, we examine only the
elements of the crime of conviction” because “the defendant’s own
conduct in committing the crime is irrelevant.” Collier v. United States,
989 F.3d 212, 220 (2d Cir. 2021).
For a racketeering offense, we consider whether the
racketeering offense is itself based on a predicate act that qualifies as
a crime of violence. A racketeering offense is a “crime of violence
when the defendant is charged under a predicate that is a crime of
violence but [it is] not a crime of violence when the RICO charge is
based on non-violent predicates.” United States v. Laurent, 33 F.4th 63,
88 (2d Cir. 2022). “If one of the two racketeering acts required for a
substantive RICO violation conforms to the definition of a crime of
violence,” then the “RICO violation ... qualif[ies] as a crime of
violence.” Id. at 88.3
3 The rule for racketeering offenses is an application of the “modified
categorical approach.” Under that approach, when “a criminal statute sets
forth any element of the offense in the alternative, such that the minimum
elements of conviction can be proven in discrete ways, some necessarily
requiring the use of force and some not, the statute may be deemed
‘divisible.’ ... Under the modified categorical approach, a court looks to the
charging instrument or other authoritative documents to determine

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B
Gomez argues that his § 924(c) conviction is invalid because
“(1) the jury was not instructed that it needed to agree unanimously
on a particular predicate offense, and (2) the verdict does not indicate
on which predicate offense the jury based its § 924(c) conviction.”
Appellant’s Supp. Br. 16-17. As a result, “there is no way to know
from the jury’s general verdict whether it found Mr. Gomez guilty of
the [§] 924(c) count by virtue of the [now-invalid] conspiracy to
murder racketeering act, or by virtue of the substantive murder
racketeering act. Id. at 23.
We disagree. The jury returned a verdict indicating that it
found that both the murder of and the conspiracy to murder Santiago
had been proven beyond a reasonable doubt. Add. 32. Accordingly,
the racketeering conviction is for a crime of violence because one of
its predicates—murder under New York law—qualifies as a crime of
violence. See Laurent, 33 F.4th at 88. Moreover, Gomez’s § 924(c)
conviction remains valid because there is no “reasonable probability”
that the jury based the § 924(c) conviction only on the conspiracy
when it determined that the murder had also been proved. Id. at 86
(quoting United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010)). “[W]e
can be confident that the jury would have convicted” even if it had
been instructed that the § 924(c) conviction could be based only on the
murder. Id. at 87 (internal quotation marks and alteration omitted).
Gomez argues that the district court’s instruction on Pinkerton
liability alters this analysis and renders his § 924(c) conviction invalid.
“Given the court’s instruction on Pinkerton, it is further possible that
whether a defendant necessarily was charged with or convicted of a crime
involving the use of force under the subsection.” Laurent, 33 F.4th at 85
(internal quotation marks, footnote, and emphasis omitted).

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the jury’s finding on the substantive racketeering act [of murder]
rested on its finding that Mr. Gomez was a member of a conspiracy.”
Appellant’s Supp. Br. 22. Because conspiracy to commit a crime of
violence does not itself qualify as a crime of violence, see Barrett, 937
F.3d at 128, Gomez argues that Pinkerton liability for a crime of
violence should not qualify either.
We again disagree. In Pinkerton, the Supreme Court held that a
criminal defendant may be liable for a substantive offense—apart
from a conspiracy charge—based on the actions of the defendant’s
co-conspirators. A Pinkerton instruction “informs the jury that it may
find a defendant guilty of a substantive offense that he did not
personally commit if it was committed by a coconspirator in
furtherance of the conspiracy, and if commission of that offense was
a reasonably foreseeable consequence of the conspiratorial
agreement.” United States v. McCoy, 995 F.3d 32, 63 (2d Cir. 2021),
judgment vacated on other grounds, 142 S. Ct. 2863 (2022). The Pinkerton
theory of liability deems the defendant to have performed the acts of
his co-conspirators. “[S]o long as the partnership in crime continues,
the partners act for each other in carrying it forward. It is settled that
‘an overt act of one partner may be the act of all.’” Pinkerton, 328 U.S.
at 646 (quoting United States v. Kissel, 218 U.S. 601, 608 (1910)).
Because under a Pinkerton theory the defendant is convicted of
the substantive offense—not of conspiring to commit the offense—he
has committed a crime of violence if the substantive offense is a crime
of violence. For this reason, every circuit to address the issue has held
that Pinkerton liability for a crime of violence can support a § 924(c)
conviction. See United States v. Henry, 984 F.3d 1343, 1356 (9th Cir.
2021) (explaining that because “[d]efendants found guilty of armed
bank robbery under either a Pinkerton or aiding-and-abetting theory
are treated as if they committed the offense as principals,” “Davis does

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not conflict with or undermine the cases upholding § 924(c)
convictions based on Pinkerton liability”); United States v. Woods,
14 F.4th 544, 552 (6th Cir. 2021) (“Finding the [defendants] guilty
through a theory of Pinkerton liability is still permissible as long as the
underlying predicate offenses qualify as crimes of violence under the
§ 924(c) elements clause.”); United States v. Gillespie, 27 F.4th 934,
941-42 (4th Cir. 2020) (“It was precisely this still-valid theory of
Pinkerton liability that the jury embraced when finding Gillespie
guilty of the challenged § 924(c) conviction.”); United States v.
Hernández-Román, 981 F.3d 138, 145 (1st Cir. 2020) (“We have held that
where, as here, Pinkerton liability is in play, the defendant does not
need to have carried the gun himself to be liable under section
924(c).”) (internal quotation marks omitted); United States v. Howell,
No. 18-3216, 2021 WL 3163879, at *4 (3d Cir. July 27, 2021) (“[G]uilt
may nonetheless be found for the § 924(c) offense under Pinkerton
based on a coconspirator who also completed the armed Hobbs Act
robbery.”).
We agree with those circuits. Indeed, in summary orders, we
have already reached the same conclusion. We have explained that
Pinkerton liability does not “somehow transform [a] conviction for
substantive bank robbery into one for bank robbery conspiracy,
implicating the residual-clause concerns explored in Davis,” United
States v. Blanco, 811 F. App’x 696, 701 n.2 (2d Cir. 2020), and that a
“conviction under Pinkerton or an aiding-and-abetting theory simply
does not transform a substantive crime of murder into a murder
conspiracy,” Sessa v. United States, No. 20-2691, 2022 WL 1179901, at
*2 (2d Cir. Apr. 21, 2022). And we have articulated the closely related
conclusion that aiding and abetting a crime of violence suffices for a
§ 924(c) conviction. “If the underlying offense is a crime of violence,
it is a predicate for § 924(c) liability; if the defendant aided and abetted

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that underlying offense, he is guilty of the underlying offense,” we
have explained, and has been “convicted of crimes that are proper
predicates for § 924(c) liability.” McCoy, 995 F.3d at 58.4 Similar to
Pinkerton liability, the law imputes the acts of the principal to an aider
and abettor. Thus, “[b]ecause an aider and abettor is responsible for
the acts of the principal as a matter of law, an aider and abettor of a
Hobbs Act robbery necessarily commits all the elements of a principal
Hobbs Act robbery.” In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016).
We see no reason for a different conclusion here. Even if the
jury found Gomez guilty of murder based on a Pinkerton theory,
Gomez’s § 924(c) conviction would remain valid because the acts of
his co-conspirators are imputed to him. See Pinkerton, 328 U.S. at 646
(“It is settled that an overt act of one partner may be the act of all.”)
(internal quotation marks omitted). That means the jury necessarily
found that Gomez committed each element of the substantive offense
of intentional murder under New York law.
Applying the modified categorical approach, we identify the
minimum criminal conduct necessary for a conviction of second-
degree murder under New York law and determine whether that
conduct “has as an element the use, attempted use, or threatened use
of physical force.” 18 U.S.C. § 924(c)(3)(A). In identifying the
minimum criminal conduct, we “focus on the intrinsic nature of the
offense rather than on the circumstances of the particular crime.”
United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006).
We have previously held that, in New York, “second-degree
murder is categorically a crime of violence under § 924(c).” Stone,
4 In McCoy, we reaffirmed on remand that the completed Hobbs Act
robbery—tried on an aiding-and-abetting theory—remained a valid
§ 924(c) predicate. United States v. McCoy, 58 F.4th 72, 74 (2d Cir. 2023).

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37 F.4th at 833 (considering N.Y. Penal Law § 125.25(1)). New York
law provides that a “person is guilty of murder in the second degree
when ... [w]ith intent to cause the death of another person, he causes
the death of such person or of a third person.” N.Y. Penal Law
§ 125.25(1).
Second-degree murder under New York law is categorically a
crime of violence because the “knowing or intentional causation of
bodily injury necessarily involves the use of physical force.” United
States v. Castleman, 572 U.S. 157, 169 (2014); see also United States v.
Scott, 990 F.3d 94, 100 (2d Cir. 2021) (explaining that it would be
“illogical” to conclude that second-degree murder under N.Y. Penal
Law § 125.25(1) was not “a categorically violent crime”).
Even if the jury found Gomez to have committed second-
degree murder on a Pinkerton theory, the law deems him to have
committed the acts of his co-conspirators. Accordingly, his
racketeering conviction is for a crime of violence and his § 924(c)
conviction rests on a valid predicate.
CONCLUSION
We conclude that Gomez’s conviction for use or carrying of a
firearm in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c), rested on a valid predicate crime of violence. We affirm the
judgment of the district court.

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