At page 60 Government concession not binding on appellate court disposition17 citing cases[W]e observe that the Government’s concession that the section 924(c) conviction should be vacated does not automatically govern an appellate court's disposition of an appeal.
- State of Iowa v. Merrill Lee Howard, No. 14-1549 (Iowa Ct. App. July 27, 2016).published([W]e observe that the Government’s concession that the section 924(c) conviction should be vacated does not automatically govern an appellate court's disposition of an appeal.)
- United States v. Blaszczak, 56 F.4th 230 (2d Cir. 2022).publishedNonetheless, we are also mindful that the 5 government's confession of error "does not automatically govern an appellate court's 6 disposition of an appeal." United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) 7 (collecting cases); see…
- State v. Parra, 941 A.2d 799 (R.I. 2007).publishedAlthough it would appear that the state’s concession would obviate the need to address the merits of defendant’s appeal, we have held that “the state’s concession that a conviction should be vacated ‘does not automatically govern an appell…
- Nat'l Abortion Fed'n v. Gonzales, 489 F.3d 125 (2d Cir. 2007).publishedDep’t of Corr., 126 F.3d 119 , 122 (2d Cir.1997); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir.1996), we offer the parties the opportunity to comment on the effect of Carhart on this appeal.
- Nat'l Abortion Fed'n v. Gonzales, 489 F.3d 125 (2d Cir. 2007).publishedDep't of Corr., 126 F.3d 119 , 122 (2d Cir. 1997); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir.1996), we offer the parties the opportunity to comment on the effect of Carhart on this appeal. 2 Accordingly, it is hereby ORDERED that th…
- State v. Disla, 874 A.2d 190 (R.I. 2005).publishedFurther, in any such case, this Court reserves the right to assign the motion to the argument calendar for the Court’s independent consideration of the asserted error, because the staters concession that a conviction ’ should be vacated ‘d…
- United States v. Jeremy Wilson & Joseph Guarino, 169 F.3d 418 (7th Cir. 1999).publishedSee United States v. Cheek, 94 F.3d 136, 140 (4th Cir.1996); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir.1996); United States v. Stern, 13 F.3d 489, 496-97 (1st Cir.1994); United States v. Kepner, 843 F.2d 755 , 763 n. 6 (3d Cir.1988)…
- United States v. Marcus Canady, 126 F.3d 352 (2d Cir. 1997).publishedSee United States v. Melendez, 90 F.3d 18, 21 (2d Cir.1996) (per curiam), cert. denied, — U.S.-, 116 S.Ct. 1020 , 134 L.Ed.2d 99 (1996); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir.1996).
- Paulino v. United States, 964 F. Supp. 119 (S.D.N.Y. 1997).published(We have ruled that where a section 924(c) conviction is challenged for insufficiency of the evidence, the sufficiency of the evidence to support conviction on the ‘carrying’ prong of the statute may be relied upon to s…)
- Araujo v. United States, 945 F. Supp. 64 (S.D.N.Y. 1996).published Notwithstanding a jury instruction on “use” that is defective under Bailey, a conviction will be upheld and the error found harmless “where it could be said, based on consideration of the entire jury charge and the evidence, that the jury’…
Show 6 more citing cases
- United States v. Arturo Gonzalez & Ricardo Ramirez, 93 F.3d 311 (7th Cir. 1996).published United States v. Vasquez, 85 F.3d 59, 60-61 (2nd Cir.1996).
- Christopher Barrett v. United States, 105 F.3d 793 (2d Cir. 1997).publishedSee United States v. Vasquez, 85 F.3d 59, 60 (2d Cir.1996).
- United States v. Melendez, 90 F.3d 18 (2d Cir. 1996).publishedSee United States v. Vasquez, 85 F.3d 59, 60 (2d Cir.1996).
- United States v. Melendez, 90 F.3d 18 (2d Cir. 1996).publishedSee United States v. Vasquez, 85 F.3d 59, 60 (2d Cir.1996). 2 The Supreme Court therefore granted Colon's petition for certiorari, vacated our prior judgment affirming his conviction, and remanded the case to us for further consideration i…
- United States v. Rutkoske, 506 F.3d 170 (2d Cir. 2007).published See Griffin v. United States, 502 U.S. 46, 56-60 , 112 S.Ct. 466 , 116 L.Ed.2d 371 (1991); see also United States v. Vasquez, 85 F.3d 59, 60-61 (2d Cir.1996).
- United States v. Ewan Bryce, Darren Johnson, 287 F.3d 249 (2d Cir. 2002).publishedSee, e.g., United States v. Vasquez, 85 F.3d 59, 60 (2d Cir.1996).
At page 61 Analyzing harmless error in section 924(c) instructions13 citing casesvacating section 924(c) conviction and remanding for resentencing with instructions that the district court may increase sentence for related counts
- United States v. Grebinger, No. 20-907-cr (L) (2d Cir. Nov. 5, 2021).unpublished(collecting cases)
- United States v. Cain, 837 F. App'x 853 (2d Cir. 2021).unpublished(vacating section 924(c) conviction and remanding for resentencing with instructions that the district court may increase sentence for related counts)
- United States v. Jones, No. 16-3397-cr (2d Cir. Mar. 28, 2018).unpublished(collecting cases)
- United States v. Joseph Monteleone, Sr., Also Known as "Joe Monte", Joseph Russo, Also Known as "Jo Jo" & Anthony Russo, Also Known as "Chuckie", 257 F.3d 210 (2d Cir. 2001).published (noting that a pre-Bailey instructional error will be harmless where "the jury's finding of a section 924(c) violation was the 'functional equivalent' of a finding that the firearm had been unlawfully carried)
- United States v. Subir Chaklader, 232 F.3d 343 (2d Cir. 2000).published(vacating § 924(c) conviction and remanding for resentencing with instructions that the district court may increase sentence for related counts)
- Araujo v. United States, 945 F. Supp. 64 (S.D.N.Y. 1996).published Notwithstanding a jury instruction on “use” that is defective under Bailey, a conviction will be upheld and the error found harmless “where it could be said, based on consideration of the entire jury charge and the evidence, that the jury’…
- United States v. Arturo Gonzalez & Ricardo Ramirez, 93 F.3d 311 (7th Cir. 1996).published United States v. Vasquez, 85 F.3d 59, 60-61 (2nd Cir.1996).
- United States v. Renan Edgar Ruiz, Noel Ruiz Torres, A/K/A "Nolo", Renan Ruiz, 104 F.3d 351 (2d Cir. 1996).unpublishedSee United States v. Vasquez, 85 F.3d 59, 61 (2d Cir.1996).
- United States v. Kendrick A. Holmes, 93 F.3d 289 (7th Cir. 1996).publishedSee United States v. Vasquez, 85 F.3d 59, 61 (2d Cir.1996) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279-80 , 113 S.Ct. 2078, 2081-82 , 124 L.Ed.2d 182 (1993) in its description of the Pi-mentel ruling). 4 .
- United States v. Jose Ramon Gordils & Nicholas Mpounas, Gregory Melendez & Francisco Bastar, 117 F.3d 99 (2d Cir. 1997).publishedSee, e.g., United States v. Vasquez, 85 F.3d 59, 61 (2d Cir.1996); United States v. Bermudez, 82 F.3d 548, 550 (2d Cir.1996) (per curiam), appeal after remand, 112 F.3d 505 (2d Cir.), cert. denied, — U.S. -, 117 S.Ct. 2525 , 138 L.Ed.2d 10…
Show 3 more citing cases
- Harney v. United States, 962 F. Supp. 322 (N.D.N.Y. 1997).publishedSee, e.g, United States v. Vasquez, 85 F.3d 59, 61 (2d Cir.1996).
- United States v. Hernandez, 85 F.3d 1023 (2d Cir. 1996).publishedSee, e.g., United States v. Vasquez, 85 F.3d 59, 61 (2d Cir. May 22, 1996); United States v. Bermudez, 82 F.3d 548, 550 (2d Cir.1996); United States v. Giraldo, 80 F.3d 667, 677 (2d Cir.1996).
- United States v. Hernandez, 85 F.3d 1023 (2d Cir. 1996).publishedSee, e.g., United States v. Vasquez, 85 F.3d 59, 61 (2d Cir. May 22, 1996); United States v. Bermudez, 82 F.3d 548, 550 (2d Cir.1996); United States v. Giraldo, 80 F.3d 667, 677 (2d Cir.1996).
v.
Juan VASQUEZ, Defendant-Appellant
This appeal from a judgment that includes a conviction for a firearm offense in violation of 18 U.S.C. § 924(e) is before the Court on remand from the Supreme Court “for further consideration in light of Bailey v. United States,” — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey narrowed the definition of “use” of a firearm for purposes of section 924(c) from the definition previously prevailing in this Circuit, see, e.g., United States v. Santos, 64 F.3d 41, 45 (2d Cir.1995), and applied in this case by both the District Court in the jury instructions and by this Court in initially affirming the conviction.
In response to our invitation to the parties to express their views as to the appropriate disposition, the Government has acknowledged that Bailey has rendered the jury charge on the section 924(c) count erroneous. Furthermore, the Government has conceded that, on the facts of this case, the erroneous jury instruction requires that the section 924(c) conviction be vacated. The Government represents that it will not retry Vasquez on the section 924(c) charge, but urges that the case be remanded for resentencing on the three remaining counts, which involve narcotics offenses.
1. Vacating the section 92U(c) count. Preliminarily, we observe that the Government’s concession that the section 924(e) conviction should be vacated does not automatically govern an appellate court’s disposition of an appeal. See Gibson v. United States, 329 U.S. 338, 344 & n. 9, 67 S.Ct. 301, 304 & n. 9, 91 L.Ed. 331 (1946) (reversal, after independent consideration, following Solicitor General’s confession of error); Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 511-12, 86 L.Ed. 832 (1942) (same); see also DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 1186, 39 L.Ed.2d 501 (1974) (Rehnquist, J., dissenting) (“It is well established that this Court does not, or at least should not, respond in Pavlovian fashion to confessions of error by the Solicitor General.”); Petite v. United States, 361 U.S. 529, 532, 80 S.Ct. 450, 452, 4 L.Ed.2d 490 (1960) (Brennan, J., dissenting) (“Even where the Government confesses error, this Court examines the case on the merits....”). Cf. Alvarado v. United States, 497 U.S. 543, 544-45, 110 S.Ct. 2995, 2996-97, 111 L.Ed.2d 439 (1990) (remanding for reconsideration in light of Solicitor General’s position, without independent assessment); Chappell v. United States, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) (same).
In the aftermath of Bailey, the status of pre-Bailey convictions for violations of section 924(c) is somewhat unclear, although the ground-rules are emerging. We have ruled that where a section 924(c) conviction is challenged for insufficiency of the evidence, the sufficiency of the evidence to support conviction on the “carrying” prong of the statute may be relied upon to sustain the conviction, notwithstanding the insufficiency of the evidence to support a conviction on the “use” prong, as narrowed by Bailey. See United States v. Giraldo, 80 F.3d 667, 675-76 (2d Cir.1996). Giraldo applied the doctrine of[*61] Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), which held that where evidence is sufficient to support one theory of committing an offense but insufficient to support another theory and both theories were submitted to the jury, a general verdict will be sustained on the assumption that the jury rested its verdict on the valid theory. Griffin, 502 U.S. at 56-58, 112 S.Ct. at 472-74. Griffin, however, distinguished its approach from the situation where one of two theories submitted to a jury is legally deficient (evidently not regarding insufficiency of the evidence as a “legal” deficiency in this context). Id. at 58-59, 112 S.Ct. at 473-74. This approach was implicitly approved by Bailey itself, which remanded for consideration of sufficiency of the evidence as to “carrying” after ruling that the evidence was insufficient as to “use.” Bailey, — U.S. at -, 116 S.Ct. at 509.
The pending case presents a different issue — whether a jury instruction, erroneous under Bailey, requires reversal. We have recently held a Bailey error in an instruction to be harmless where it could be said, based on consideration of the entire jury charge and the evidence, that the jury’s finding of a section 924(c) violation was the “functional equivalent,” Sullivan v. Louisiana, 508 U.S. 275, 279-81, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993), of a finding that the firearm had been unlawfully carried. United States v. Pimentel, 83 F.3d 55 (2d Cir.1996). That conclusion was reached in Pimentel because the firearm was only in one location, and that location was immediately accessible to a co-defendant for whose offense the appellant was liable under a Pinkerton charge.
Unlike Pimentel, the evidence in the pending ease, if accepted by the jury, reveals that the gun could have been found to have been located at either (or both) of two locations. One location was Vasquez’s apartment. The other was on his person when he went to a meeting with his narcotics associates. Under the instructions, the jury could have improperly found the first circumstance to be “use” and properly found the second circumstance to be “carrying.” Since we are unable to determine whether the verdict rested on a legally sufficient theory and the verdict is not the functional equivalent of a necessary finding of “carrying,” we agree with the Government that the firearm conviction must be vacated.
2. Remanding for resentencing. We also agree with the Government that, in a ease such as this, a remand for consideration of resentencing on the remaining counts is appropriate. Though we have not countenanced a revision of a sentence imposed on a count unrelated to counts that were vacated, see United States v. Pisani, 787 F.2d 71, 75-76 (2d Cir.1986), we have recognized that Pisani is limited to the context of unrelated counts, see United States v. Bohn, 959 F.2d 389, 395 (2d Cir.1992). Pursuant to this distinction, we have frequently upheld increased sentences on remaining counts after conviction of a related section 924(e) count has been vacated. See United States v. Medina, 74 F.3d 413, 417 (2d Cir.1996); United States v. Diaz, 834 F.2d 287, 290 (2d Cir.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988); McClain v. United States, 676 F.2d 915, 918 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982).
Accordingly, the conviction on Count Thirteen (section 924(c) violation) is vacated, the convictions on the remaining counts are affirmed, and the case is remanded to permit the District Court to consider resentencing.