06-5319-cr
     USA v. Gomez
1                             UNITED STATES COURT OF APPEALS

2                                   FOR THE SECOND CIRCUIT

3                                     August Term, 2007

4    (Argued:       May 6, 2008                   Decided:   September 11, 2009)

5    Docket No. 06-5319-cr (L), 06-5690-cr (XAP), 06-5697-cr (CON)

6    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

7    UNITED STATES OF AMERICA,

8          Appellee-Cross-Appellant,

9                   -    v.     -

10   ARCENY GOMEZ,
11
12         Defendant-Appellant-Cross-Appellee,
13
14   DANNY REYES,
15
16         Defendant-Appellee.
17
18   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
19
20   B e f o r e:        WINTER and HALL, Circuit Judges.*

21         Appeal from judgments of conviction and sentence entered in

22   the United States District Court for the Southern District of New

23   York (Lawrence M. McKenna, Judge).           We reverse on the cross-

24   appeal because there was no plain error in the jury instruction

25   regarding the Hobbs Act requirement of an effect on interstate

26   commerce and the district court erred as to the applicable

27   mandatory minimum sentence.           We affirm on Gomez’s appeal.

           *
           The Honorable Louis F. Oberdorfer, United States District
     Judge for the District of the District of Columbia, sitting by
     designation withdrew from consideration of this matter. Pursuant
     to Second Circuit Local Rule 0.14(b), the matter is being decided
     by the two remaining members of the panel.

                                              1
 1                       LAURIE A. KORENBAUM, Assistant United States
 2                       Attorney for the Southern District of New
 3                       York (Michael J. Garcia, United States
 4                       Attorney, on the brief, Katherine Polk
 5                       Failla, Assistant United States Attorney, of
 6                       counsel), United States Attorney’s Office for
 7                       the Southern District of New York, New York,
 8                       New York, for Appellee-Cross-Appellant.
 9
10                       JOHN F. KALEY, Doar Rieck Kaley & Mack, New
11                       York, New York, for Defendant-Appellant-
12                       Cross-Appellee.
13
14                       PATRICK J. JOYCE, New York, New York, for
15                       Defendant-Appellee.
16
17
18   WINTER, Circuit Judge:

19        Arceny Gomez appeals from his conviction by a jury after a

20   trial before Judge McKenna.   He, along with Danny Reyes, who did

21   not appeal but whose sentence is a subject of the government’s

22   cross-appeal,1 was convicted of: (i) conspiring to commit a Hobbs

23   Act robbery in violation of 18 U.S.C. § 1951(a); (ii) committing

24   a Hobbs Act robbery (or aiding and abetting thereof) in violation

25   of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2; (iii) conspiring to

26   possess with intent to distribute one kilogram of cocaine in

27   violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and (iv) using

28   and carrying (or the aiding and abetting thereof) a firearm

29   during and in relation to a crime of violence and a drug

30   trafficking crime in violation of 18 U.S.C. § 924(c) and 18

31   U.S.C. § 2.


          1
           For convenience, we refer to the government’s appeal as to
     Reyes and cross-appeal as to Gomez collectively as a cross-
     appeal.


                                      2
1         After the verdict, the district court vacated both Hobbs Act

2    convictions on the ground that the evidence of an effect on

3    interstate commerce was insufficient as a matter of law.    Gomez

4    appeals from his conviction and sentence on the Section 924(c)

5    charge.    The government cross-appeals from the district court’s

6    vacating of the Hobbs Act convictions and failure to impose a ten

7    year mandatory minimum sentence on the Section 924(c) count.    We

8    affirm on Gomez’s appeal and reverse on the government’s cross-

9    appeal.

10                              BACKGROUND

11   a) The Evidence

12        Because the jury convicted Gomez and Reyes on all counts, we

13   view the evidence in the light most favorable to the government.

14   See United States v. Chavez, 

, 124 (2d Cir. 2008).

15        Gomez and Reyes, along with two individuals named Ray Solis

16   and Alfredo DeJesus, engaged in a botched robbery of a drug

17   dealer named Rogelio Rivera, during which Rivera was shot and

18   killed.    The government’s case consisted principally of testimony

19   from DeJesus, post-arrest statements made by Gomez and Reyes, and

20   telephone records and documents linking the conspirators around

21   the time of the robbery and murder.

22        DeJesus testified that he discussed with Gomez the plan for

23   the robbery, which they intended would net three kilos of

24   cocaine.    Solis was to pose as a drug buyer, using Gomez’s black


                                       3
1    Acura because they believed that it was the kind of car a drug

2    dealer would use.   The plan was to offer Rivera fake money for

3    the drugs, and, while Rivera inspected the money, draw their guns

4    and rob him of the cocaine.

5         Reyes, who lived both in Connecticut and the Bronx, was the

6    defendants’ connection with Rivera.   He had sufficient prior

7    contact with Rivera that he could set up the proposed deal to

8    acquire cocaine and that Rivera trusted him to broker the deal

9    with Solis, a person Rivera had not previously met.    While the

10   four were on their way to a restaurant in the Bronx where they

11   were to meet with Rivera, they stopped their cars and got out.

12   According to DeJesus, Solis and Reyes adjusted their waistbands

13   in a manner that suggested that each had a gun.    Thereafter,

14   Solis and Reyes got into the Acura and continued driving while

15   Gomez and DeJesus followed in a white van.     Solis and Reyes

16   picked up Rivera near the restaurant.   Those three then traveled

17   together in the Acura to the site of the intended robbery.

18   DeJesus and Gomez followed in the white van.    Reyes and Solis

19   entered a building with Rivera, while DeJesus and Gomez stayed

20   outside to serve as lookouts during the intended robbery.        After

21   a short time, a shot rang out.   Solis and Reyes ran out of the

22   building and drove away in the Acura, while DeJesus and Gomez

23   followed in the van.   When they stopped to switch cars, Reyes

24   indicated that Solis had shot Rivera.   Solis said that the


                                      4
1    robbery had netted only one kilogram of cocaine.

2         When Reyes and Gomez were interviewed after their arrests,

3    each substantially corroborated DeJesus’s account of the robbery.

4    Reyes’s statement indicated that the plan had been for all the

5    perpetrators to use firearms in the robbery.

6         In order to show Gomez’s intent in anticipation of his

7    testimony outlined below, DeJesus testified as to several other

8    drug robberies committed by Gomez, including one in which he and

9    Gomez had netted 1.5 kilograms of heroin in or around February

10   1998, and another in the spring of 1998 involving one kilogram of

11   cocaine.   Finally, DeJesus described a third robbery that was

12   planned to net fifty kilograms of cocaine.   DeJesus discussed

13   this robbery with Gomez and the other perpetrators, hoped to be

14   taken along, but ultimately he did not go.   DeJesus testified

15   that Gomez told him that the robbery was “triumphant” and that he

16   and Gomez celebrated its success.    Gomez then gave DeJesus four

17   kilograms of cocaine that DeJesus sold to a friend of his.

18        Gomez testified in his own defense and stated that while he

19   did participate in the robbery of Rivera, he did so only as a

20   paid informant for the Drug Enforcement Administration (“DEA”).

21   Gomez had indeed been acting as an informant for the DEA in some

22   matters but for several days did not inform his handlers about

23   the robbery in question.   He sought to explain this delay by

24   stating that his DEA handler did not speak Spanish well and that


                                      5
1    an officer he worked with in the New York Police Department

2    (“NYPD”) had given Gomez a disconnected pager number.    In

3    response, the government presented testimony from Gomez’s NYPD

4    handler indicating that the officer’s pager number had not

5    changed or been disconnected and that Gomez could have informed

6    him of the robbery at a debriefing session a few days after the

7    robbery.     Instead, Gomez did not mention the robbery until he had

8    been arrested for it.

9    b) Jury Instructions, Post-Trial Proceedings, and Sentencing

10        The judge gave several jury instructions pertinent to this

11   appeal.

12        Regarding the interstate commerce element of the Hobbs Act2

13   conspiracy count, the district court told the jury that:

14        [T]he government must prove . . . that . . . had the
15        robbery been completed interstate commerce would have
16        been or potentially would have been affected in some
17        way[,] even if the effect is slight . . . . Such
18        robbery need only affect interstate commerce in any way
19        or degree, even if the effect is only minimal . . . .
20        The government satisfies its burden of proving an
21        effect . . . if it proves beyond a reasonable doubt any


          2
              The Hobbs Act provides that:

          Whoever in any way or degree obstructs, delays, or affects
          commerce or the movement of any article or commodity in
          commerce, by robbery or extortion or attempts or conspires
          so to do, or commits or threatens physical violence to any
          person or property in furtherance of a plan or purpose to do
          anything in violation of this section shall be fined under
          this title or imprisoned not more than twenty years, or
          both.

     18 U.S.C. § 1951(a).

                                     6
1         effect, whether it was harmful or not.
2
3    The court also instructed that:

 4        Congress has determined that all narcotics activity, even
 5        purely local narcotics activity, has a substantial effect on
 6        interstate commerce. Thus, if you find that the object of
 7        the robbery was to possess narcotics with the intent to
 8        distribute them, you may find this element satisfied.
 9
10        With respect to the substantive Hobbs Act count, the judge

11   referred the jury to the above-quoted instructions on the

12   conspiracy count.     The judge also noted that substantive Hobbs

13   Act robbery requires a taking of property, “by means of actual or

14   threatened force . . . .”

15        With respect to the Section 924(c)3 count, the district

16   court charged the jury that “[i]n order to convict the defendant

17   you must find that the government has proven beyond a reasonable

18   doubt his involvement in at least one of the underlying crimes of

19   violence or the drug-trafficking crime.”     The judge did not


          3
              Title 18 U.S.C. § 924(c)(1)(A) states in pertinent part:

          [A]ny person who, during and in relation to any crime of
          violence or drug trafficking crime . . . for which the
          person may be prosecuted in a court of the United States,
          uses or carries a firearm . . . shall, in addition to the
          punishment provided for such crime of violence or drug
          trafficking crime –-

          (i) be sentenced to a term of imprisonment of not less than
          5 years;

          (ii) if the firearm is brandished, be sentenced to a term of
          imprisonment of not less than 7 years; and

          (iii) if the firearm is discharged, be sentenced to a term
          of imprisonment of not less than 10 years.

                                        7
1    instruct the jury that it had to be unanimous as to which crime

2    was the predicate for a Section 924(c) conviction.

3         The jury reached a guilty verdict on all counts.   Gomez and

4    Reyes moved to set aside their convictions under the Hobbs Act on

5    the grounds that there was legally insufficient evidence of the

6    requisite effect on interstate commerce.   The district court

7    agreed and vacated the verdict on both Hobbs Act counts.

8         Gomez alone argued that his Section 924(c) conviction should

9    also be vacated because the jury was not instructed that it had

10   to be unanimous on the selection of a specific predicate crime

11   and because the vacating of the Hobbs Act counts had eliminated

12   two of the three possible predicates, rendering it impossible to

13   know which alleged predicate(s) the jury had found.   Although the

14   district court agreed that the jury should have been instructed

15   that they had to be unanimous on a particular predicate, it found

16   that there was no need to vacate the Section 924(c) conviction.

17   It reasoned that had the jury been properly instructed, it would

18   have selected the remaining drug distribution count as a

19   predicate.

20        In sentencing Reyes, the district court calculated his base

21   offense level using the three kilograms of cocaine that the

22   robbers had planned to steal rather than the one kilogram

23   actually obtained.   This resulted in a base offense level of 28

24   for Reyes.


                                      8
1         On Reyes’s Section 924(c) convictions, the district court

2    imposed the five year minimum sentence for use of a gun rather

3    than the ten year mandatory minimum sentence for discharging it.

4    See 18 U.S.C. § 

note 3.   The district court

5    noted that the jury had not been asked to specify which gun(s)

6    was the basis for the Section 924(c) convictions.   The court then

7    reasoned that because there was some evidence that two guns were

8    involved but only one was discharged, it was impossible to say

9    whether the jury had convicted Reyes under Section 924(c) for the

10   gun that was discharged.   Accordingly, the five year sentence for

11   mere use applied.   The district court ultimately imposed a total

12   sentence of 132 months -- 72 months was based on the drug

13   conspiracy count and a consecutive 60 months was based on the

14   Section 924(c) count.

15        With respect to Gomez, the district court began by factoring

16   in the three kilograms of cocaine contemplated in planning the

17   robbery.   The court, however, rejected the government’s argument

18   that all of the drugs from Gomez’s alleged prior drug robberies

19   should be used in calculating Gomez’s guidelines sentence.     The

20   district court specifically rejected DeJesus’s testimony

21   regarding the robbery involving one kilogram of cocaine and the

22   robbery involving fifty kilograms of cocaine, finding that these

23   events were “not described with adequate specificity.”   The

24   district court, however, did factor in the February 1998 robbery


                                      9
1    involving 1.5 kilograms of heroin.     The district court also

2    followed the logic it applied to Reyes to hold that only the five

3    year minimum sentence under Section 924(c) should apply to Gomez.

4    The district court ultimately sentenced Gomez to 162 months --

5    102 months was based on the drug conspiracy count and a

6    consecutive 60 months was on the Section 924(c) count.

7                              DISCUSSION

8    a) The Hobbs Act Counts

9         The government’s cross-appeal seeks to reinstate Reyes’s and

10   Gomez’s convictions on the conspiracy and substantive Hobbs Act

11   counts.   To sustain a Hobbs Act conviction, there must be

12   evidence that the underlying act affected interstate commerce.

13   See United States v. Parkes, 

, 227 (2d Cir. 2007).

14   The government argues that any error in the jury instructions was

15   harmless and that the evidence regarding the interstate commerce

16   element of the Hobbs Act offenses was sufficient.     We agree.

17        Because no objection was made at trial to the interstate

18   commerce instructions, plain error analysis applies.    See United

19   States v. Kaplan, 

, 124 (2d Cir. 2007).    A finding of

20   plain error requires “(1) error, (2) that is plain, and (3) that

21   affects the defendant's substantial rights. If all three

22   conditions are met, we may exercise our discretion to notice the

23   error, provided that the error seriously affects the fairness,

24   integrity, or public reputation of judicial proceedings.”    United


                                     10
1    States v. Carter, 

, 537 (2d Cir. 2007) (citations

2    omitted).   No error in the present case affected substantial

3    rights.

4         We first identify any error in the jury instructions.    The

5    pertinent portion reads, “Congress has determined that all

6    narcotics activity, even purely local narcotics activity, has a

7    substantial effect on interstate commerce.   Thus, if you find

8    that the object of the robbery was to possess narcotics with the

9    intent to distribute them, you may find this element satisfied.”

10   (emphasis added).   The district court’s reference to a

11   Congressional determination was to Section 801(3)-(6) of the

12   Controlled Substances Act, which contains legislative findings

13   that both intrastate and interstate drug trafficking affect

14   interstate commerce.   See 21 U.S.C. § 801(3)-(6).   In fashioning

15   these instructions, the district court may have reasoned that,

16   given the Congressional findings, robberies involving drugs or

17   their proceeds are per se within the affecting-commerce

18   requirement of the Hobbs Act, a conclusion we later adopted in

19   United States v. Fabian, 

, 555-56 (2d Cir. 2002).

20   However, to the extent that Fabian held that proof that a robbery

21   involved drugs or proceeds thereof automatically satisfied the

22   interstate commerce element of the Hobbs Act as a matter of law,

23   thereby taking the issue from the jury, it was overruled by

24   United States v. Parkes, 

(2d Cir. 2007), in light of



                                     11
1    intervening Supreme Court and other circuit decisions.    

   229-30.   Parkes held that “[p]roving an effect on interstate

3    commerce is . . . an element of a Hobbs Act offense, which must

4    be proven beyond a reasonable doubt to a jury.”    

27.

5         The district court’s instructions quoted above were

6    consistent with Parkes in that they used the permissive “may” and

7    therefore described only what the jury might find rather than

8    taking the issue from it entirely.     The error in the instruction

9    lay in referencing Congressional findings.    This reference may

10   have misled the jury into believing that those findings were

11   binding upon it as a trier of fact.    This view is not consistent

12   with Parkes.   See 

error was “plain” is a close

13   question, but one that we need not reach because it was harmless

14   and for that reason did not impair the defendants’ substantial

15   rights.

16        The error in the jury instruction was in its potential to

17   mislead the jury into believing that it need not make an

18   independent finding regarding the element of an effect on

19   interstate commerce.     Such omitted element errors are subject to

20   harmless error analysis.    See Neder v. United States, 

,

21   10 (1999).   In such a case, we “consider the weight of trial

22   evidence bearing on the omitted element; and if such evidence is

23   overwhelming and essentially uncontroverted, there is no basis

24   for concluding that the error seriously affects the fairness,



                                       12
1    integrity, or public reputation of judicial proceedings.”     United

2    States v. Guevara, 

, 126-27 (2d Cir. 2002) (citations

3    and quotation marks omitted) (considering an Apprendi error,

4    Apprendi v. New Jersey, 

(2000), where the jury did

5    not make a finding on an element).4     To sustain the conviction,

6    we must find that the jury would have returned the same verdict

7    beyond a reasonable doubt.    See United States v. Jackson, 196

, 386 (2d Cir. 1999).

9         The government’s evidence regarding interstate commerce was

10   that the object of the robbery was three kilos of cocaine and

11   that one kilo was seized.    This evidence was not controverted;

12   that is, no defendant challenged the object, fact, or result of

13   the robbery.   Also uncontroverted was the fact that Reyes, who

14   occupied residences in both Connecticut and the Bronx, was known

15   to Rivera and trusted to the point that Rivera was willing to

16   deal with him and Solis -- a person Rivera did not know –- to

17   sell three kilograms of cocaine.      The defendants’ claim here is

18   that the robbery’s object (the theft of multiple kilograms of

19   cocaine from a drug dealer) and/or result are insufficient as a


          4
           If the evidence regarding an omitted element is
     overwhelming but controverted, we have “conduct[ed] a two-part
     inquiry, searching the record in order to determine (a) whether
     there was sufficient evidence to permit a jury to find in favor
     of the defendant on the omitted element, and, if there was, (b)
     whether the jury would nonetheless have returned the same verdict
     of guilty.” United States v. Guevara, 

, 127-28 (2d
     Cir. 2002) (citations omitted).


                                      13
1    matter of law to constitute the requisite effect on interstate

2    commerce.   We disagree.

3         It hardly needs repeating that the reach of the Hobbs Act is

4    coextensive with the full reach of Congressional power over

5    commerce, see Stirone v. United States, 

, 215 (1960),

6    and that only “a very slight effect on interstate commerce” need

7    be shown.   See United States v. Wilkerson, 

, 726 (2d

8    Cir. 2004); see also 18 U.S.C. § 1951(a).   Indeed, “[e]ven a

9    potential or subtle effect on commerce will suffice.”    United

10   States v. Angelilli, 

, 35 (2d Cir. 1981).    In drug

11   trafficking cases, the requisite effect on interstate commerce

12   can be found either in the importation or interstate

13   transportation of drugs or even in the trafficking of particular

14   drugs in a “small but going enterprise” that handles product

15   almost exclusively transported into the United States from

16   outside the country and very little of which is produced in New

17   York.   See 

; see also United States v.

18   Vasquez, 

, 87-88 (2d Cir. 2001).   While making it

19   clear that it was not deciding the issue, the Court in Parkes

20   said in a footnote: “It may well be that a rational jury could

21   conclude that the interstate commerce element is satisfied by

22   proof that a robbery targeting drugs or proceeds of a drug

23   business that is purely intrastate.”   

24   n.10.   Parkes also reminds us that “[t]he required evidence of an


                                     14
1    effect need not take any particular form or be offered in any

2    particular quantum -- direct, indirect, or circumstantial

3    evidence could suffice.   It is a case-by-case inquiry.”    

   231 n.11.   Similarly, in Vasquez, a plain error case, we

5    expressly held that heroin trafficking “affects interstate

6    commerce, at the very least, regardless of where the raw

7    materials originate” and that any error in relevant jury

8    instructions regarding the commerce element could not have

9    affected the fairness, integrity, or public perception of the

10   proceeding, much less have amounted to a miscarriage of justice.

11   

(emphasis in original).   Indeed, Parkes

12   itself held that a robbery of marijuana and $4000 in drug

13   proceeds, along with direct expert testimony, was sufficient to

14   establish the requisite nexus to interstate commerce.     Parkes,

.

16        The only evidence even arguably lacking was direct testimony

17   of an expert nature that cocaine is imported into the United

18   States5 and/or that any robbery of cocaine, wherever the source,

19   affects interstate commerce.   Such expert testimony is

20   unnecessary because a reasonable juror is surely capable of

21   drawing the conclusion that a robbery undertaken with the object

22   of stealing from a drug dealer three kilos of cocaine -- and


          5
           Parkes involved 

, which can be
     grown in the United States. Cocaine is exclusively foreign in
     origin.

                                     15
1    which successfully yielded one kilo (i.e., a thousand grams or

2    multiple thousands of doses of cocaine) -- would have had at

3    least the required de minimus effect on interstate commerce.     See

4    Wills v. Amerada Hess Corp., 

, 46 (2d Cir. 2004)

5    (expert testimony unnecessary in cases where jurors “are as

6    capable of comprehending the primary facts and of drawing correct

7    conclusions from them as are witnesses possessed of special or

8    peculiar training” (quoting Salem v. U.S. Lines Co., 

,

9    35 (1962)).   The importation and interstate transportation of

10   cocaine, as well as the financial size of the cocaine trade, have

11   been routinely and copiously discussed by public officials,

12   candidates for office, and the news media for decades.    In

13   addition, even the commercial effect of home-grown drugs, which

14   by reason of that origin distinguish them from cocaine, has been

15   described by the Supreme Court as “visible to the naked eye,”

16   Gonzales v. Raich, 

, 28-29 (2005), such that we would

17   infer an effect on interstate commerce from purely domestic

18   production.   Certainly, as Vaquez held, the absence of such

19   expert testimony would not constitute plain error.    See 

  at 87-90.

21        The analysis of proof of effect on interstate commerce is a

22   case-by-case inquiry, 

n.11, and such

23   proof need only demonstrate “a potential or subtle effect” on

24   interstate commerce.   

.   Based on the



                                     16
1    facts presented to the jury in this case, we find beyond a

2    reasonable doubt that the jury would have returned the guilty

3    verdict even absent the instruction that was given.   See Jackson,

.   For that reason, we hold that the error in the

5    jury instruction was harmless.

6         Finally, although for the reasons stated we find no plain

7    error in the charge given, even if we were to determine that such

8    error existed, we would be hard pressed to find that the error

9    created an injustice.   The lack of injustice is underlined by the

10   fact that the instructions were not challenged and the issue of

11   the sufficiency was preserved only by a general motion at the

12   close of the government’s case in which the words “interstate

13   commerce” were conspicuous by their absence.   The timing and

14   general non-specific nature of the challenge is understandable.

15   Before verdict, any issue could have been quickly and

16   indisputably resolved, see 

, destroying

17   any value on appeal.

18        We therefore overturn the vacating of the Hobbs Act counts.

19   b) Sufficiency of the Evidence for the Section 924(c) Count

20        There was no evidence that Gomez carried a weapon during the

21   robbery.   However, he was charged with, and convicted of, aiding

22   and abetting a violation of Section 924(c), and, under 18 U.S.C.

23   § 2, he is punishable as a principal.   Relying on United States

24   v. Medina, 

(2d Cir. 1994), Gomez challenges his


                                      17
1    Section 924(c) conviction.     Medina held that “a defendant who is

2    not present [at the crime] . . . cannot be said to aid and abet

3    the use or carrying of a firearm simply by aiding and abetting

4    the overall enterprise in which the firearm is employed.”    

   47.   Gomez argues in the present matter that the evidence tying

6    him specifically to the use of firearms, as opposed to showing

7    merely his general involvement in the robbery, was legally

8    insufficient.   We disagree.

9          It is clear from the facts in Medina that the words “not

10   present [at a robbery]” described a participant who was

11   geographically distant from the crime and played no supportive

12   role as the robbery took place.    Here, by contrast, Gomez was

13   “present” as a lookout at the scene and played a critical

14   supportive role in the armed robbery.     Accordingly, there was

15   easily sufficient evidence to convict Gomez for aiding and

16   abetting on the Section 924(c) count.

17   c) Jury Instructions on the Section 924(c) Count

18         A Section 924(c) conviction requires the trier of fact to

19   find that the use of a gun was “during and in relation to any

20   crime of violence or drug trafficking crime.”    See 18 U.S.C. §

21   

note 3.    The predicate crimes alleged here

22   are those alleged in the two Hobbs Act counts and the single

23   cocaine trafficking count.     Gomez argues that his Section 924(c)

24   conviction must be vacated because the jury was not instructed to

25   reach a unanimous agreement about which specific predicate crime

                                       18
1    or crimes were the basis for that conviction.    This argument

2    gained force when the convictions on two of the three predicate

3    crimes were vacated.

4         The failure to instruct the jury that it had to agree on a

5    specific predicate was likely error.    See Richardson v. United

6    States, 

, 818 (1999) (concluding that jury must

7    unanimously agree that defendant is guilty of each of the

8    predicate violations that together constitute a continuing

9    criminal enterprise under 21 U.S.C. § 848); compare 18 U.S.C. §

10   924(c) (referring to predicate “crime[s]”).    Again, however,

11   there was no objection at trial, and plain error review applies.

12   See Santana-Madera v. United States, 

, 139 (2d Cir.

13   2001).6   Indeed, a Richardson error is essentially an omitted

14   element -- in this case the requirement that each juror agree on

15   the predicate crime.   See id.; see also United States v. Brown,

16   

, 699 (4th Cir. 2000).    The analysis we undertake

17   here is similar to that which we have already undertaken with

18   respect to the defendant’s claim regarding the interstate

19   commerce element.   When an alleged error relates to an omitted

20   element of a jury charge, it is reviewed for harmlessness.    And


          6
           In Santana-Madera, this Court concluded that a Richardson
     error was not a “structural error,” i.e., a “defect affecting the
     framework within which the trial proceeds, rather than simply an
     error in the trial process 

(citing
     Arizona v. Fulminante, 

, 310 (1991)). As a result,
     we concluded that Richardson errors are subject to harmless error
     review. 

.

                                      19
1    if an error is harmless, then none of the defendant’s

2    “substantial rights” will have been affected and the error is

3    therefore not “plain.”   Following Neder, therefore, we ask, “Is

4    it clear beyond a reasonable doubt that a rational jury would

5    have found the defendant guilty absent the error?”      Neder v.

6    United States, 

, 18 (1999).

7         The answer is obviously yes.      Whatever force Gomez’s

8    argument may have had when the Hobbs Act convictions were vacated

9    vanishes now that they have been reinstated.      Because the jury

10   validly reached a unanimous guilty verdict on every predicate

11   crime alleged, the erroneous jury instruction was necessarily

12   harmless.   Accordingly, the Section 924(c) conviction stands.

13   d) Element vs. Sentencing Factor for the Section 924(c) Count

14        Title 18 U.S.C. § 924(c) provides a scale of differing

15   mandatory minimum sentences depending on whether the gun in the

16   crime was merely used, was brandished, or was actually

17   discharged.   See supra note 3.   Gomez is exposed to this scale

18   because of his conviction as an aider and abettor punishable as a

19   principal under 18 U.S.C. § 2.

20        Gomez argues that the application of a particular mandatory

21   minimum based on the facts of the crime is an element of the

22   crime that should therefore have been determined by the jury.

23   See United States v. Booker, 

, 244 (2005).      Gomez

24   acknowledges that a Supreme Court decision is directly to the



                                       20
1    contrary.     See Harris v. United States, 

, 567-70

2    (2002).    In Harris, a plurality of the court, and Justice Breyer

3    in concurrence, agreed that facts that trigger a mandatory

4    minimum sentence are not elements of the crime but are rather

5    sentencing factors of the sort that a judge may properly find.

6    

explicitly considered Section 924(c).   

contends that Harris has been undermined by subsequent

8    Supreme Court decisions such as 

(holding

9    that any fact necessary to support a sentence exceeding the

10   maximum authorized by the facts established by a jury verdict

11   must be proved to a jury beyond a reasonable doubt).    However, we

12   must still follow Harris.    The Supreme Court has held that “if a

13   precedent of this Court has direct application in a case, yet

14   appears to rest on reasons rejected in some other line of

15   decisions, the Court of Appeals should follow the case which

16   directly controls, leaving to this Court the prerogative of

17   overruling its own decisions.”    Agostini v. Felton, 

,

18   237 (1997) (citation and alteration omitted) (quoting Rodriguez

19   de Quijas v. Shearson/American Express, Inc., 

, 484

20   (1989)).    Moreover, our Court has applied Harris even after

21   Booker.    See e.g., United States v. Estrada, 

, 389

22   (2d Cir. 2005) (relying on Harris to conclude that prior

23   narcotics convictions that triggered a mandatory life sentence

24   were not required to be proved to a jury beyond a reasonable


                                      21
1    doubt).   Accordingly, Harris still governs, and the Section

2    924(c) enhancement can properly be found by the sentencing court.

3    e) Section 924(c):   Use or Discharge

4         The government cross-appeals from the district court’s

5    holding that Gomez and Reyes are subject only to the five-year

6    minimum sentence for use of a firearm rather than the ten-year

7    enhancement for discharge.   See 18 U.S.C. § 

8    note 3. The district court concluded that because there was

9    evidence that only one gun was discharged but two guns may have

10   been used in the crime, it was unclear which gun or guns the jury

11   relied upon in convicting under Section 924(c).    We disagree.

12        Although the jury was not asked to make a specific finding

13   regarding which gun or guns it was relying upon, Solis’s

14   discharge of a gun is undisputed.    Apart from that murderous

15   discharge –- the effect of which proved the use of a gun beyond

16   any doubt -– the evidence of the use of guns consisted of

17   DeJesus’s testimony as to Solis and Reyes adjusting their

18   waistbands, Reyes’s post-arrest statement, and the necessity of

19   weapons in such a robbery.   We believe it obvious that the

20   undisputed evidence that Solis killed Rivera with a gun was a

21   foundation for the jury’s Section 924(c) conviction.    We see no

22   possibility that the jury would have disregarded this undisputed

23   fact to consider in its deliberations over the gun-use element

24   whether Reyes had a gun.   We therefore order resentencing of


                                     22
1    Gomez and Reyes.

2    f) Uncharged Robbery as Sentencing Enhancement

3         Gomez argues that the district court improperly enhanced his

4    sentencing range by four levels based on his alleged robbery of

5    1.5 kilograms of heroin.   Gomez makes several attacks against the

6    procedure used by the district court, but each is meritless. In

7    particular, Gomez argues that the district court should not have

8    relied on DeJesus’s trial testimony.   However, we have said, “The

9    sentencing court’s discretion is largely unlimited either as to

10   the kind of information it may consider, or the source from which

11   it may come . . . .   A sentencing court is free to consider

12   hearsay evidence, evidence of uncharged crimes, dropped counts of

13   an indictment and criminal activity resulting in acquittal in

14   determining sentence.”   United States v. Sisti, 

, 312

15   (2d Cir. 1996) (citations and quotation marks omitted).

16        Gomez argues that he should have been given an opportunity

17   to cross-examine DeJesus at sentencing.   The district court did

18   not abuse its discretion, however, given that Gomez’s trial

19   counsel had an opportunity to cross-examine DeJesus at trial.

20   See United States v. Williams, 

, 359 (2d Cir. 2001)

21   (sentencing court under no duty to conduct “full-blown

22   evidentiary hearing”) (quoting United States v. Prescott, 920

, 143 (2d Cir. 1990)); United States v. Harris, 

  95, 98 (2d Cir. 1994) (court found without merit defendant’s

25   objection to lack of opportunity to cross-examine witnesses


                                     23
1    testifying at sentencing hearing where defendant “conced[ed] that

2    defendants have no right to confrontation at sentencing” and

3    “cite[d] no authority to support his claim that the defendant has

4    a right to cross-examine witnesses called to testify”).

5         Gomez also argues that it was unfair to rely on DeJesus’s

6    trial testimony as evidence at sentencing because the trial

7    testimony had been admitted only for a limited purpose: namely

8    proof of intent under Federal Rule of Evidence 404(b).     The

9    evidence admitted at trial for the purpose of demonstrating

10   Gomez’s intent with respect to the robberies was relevant at

11   trial only if the jury also found that the robberies had actually

12   occurred.   Likewise, the testimony regarding Gomez’s intent was

13   relevant at sentencing only if the robberies had occurred.

14   Therefore, the testimony was admitted at trial for the same

15   purpose for which it was used at sentencing.

16        Gomez further argues that it is simply improper for a

17   district court to find facts at sentencing.     This argument is

18   squarely contradicted by Crosby.     See United States v. Crosby,

19   

, 112 (2d Cir. 2005)(concluding that the sentencing

20   judge is entitled to find all facts relevant to the sentencing).

21                             CONCLUSION

22        We reverse on the government’s cross-appeal, reinstate the

23   Hobbs Act convictions, and remand for resentencing in accord with

24   this opinion.   We affirm on Gomez’s appeal.

25

26


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