14‐4133
United States v. Lin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 14th day of February, two thousand
4 nineteen.
5
6 PRESENT: JON O. NEWMAN
7 DENNIS JACOBS,
8 Circuit Judges,
9 LEWIS A. KAPLAN,*
10 District Judge.
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13 UNITED STATES OF AMERICA,
14 Appellee,
* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
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2 ‐v.‐ 14‐4133
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4 XING LIN,
5 Defendant‐Appellant.
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7
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9
10 FOR APPELLANT: Megan W. Benett, Kreindler & Kreindler
11 LLP, New York, NY.
12
13 FOR APPELLEE: Sarah K. Eddy, Assistant United States
14 Attorney, for Geoffrey S. Berman, United
15 States Attorney for the Southern District of
16 New York, New York, NY.
17
18 Appeal from a judgment of the United States District Court for the
19 Southern District of New York (Cedarbaum, J.).
20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
21 ADJUDGED AND DECREED that the judgment of the district court be
22 AFFIRMED.
23 Xing Lin was convicted after a jury trial on four counts, including murder
24 through use of a firearm during and in relation to a crime of violence, in violation
25 of 18 U.S.C. § 924(j). We assume the parties’ familiarity with the underlying
26 facts, the procedural history, and the issues presented for review.
27 Section 924(j) prescribes certain penalties if a defendant causes the death of
28 a person while violating 18 U.S.C. § 924(c). 18 U.S.C. § 924(j). Section 924(c)
29 punishes “any person who, during and in relation to any crime of violence . . . for
30 which the person may be prosecuted in a court of the United States, uses or
31 carries a firearm, or who, in furtherance of any such crime, possesses a firearm.”
32 Id. § 924(c)(1). Section 924(c)(3) defines the “crime of violence” element of
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1 section 924(c)(1)(A) as a felony that “(A) has as an element the use, attempted
2 use, or threatened use of physical force against the person or property of another,
3 or (B) that by its nature, involves a substantial risk that physical force against the
4 person or property of another may be used in the course of committing the
5 offense.” Id. § 924(c)(3).
6 Lin argues that the extortion underlying his section 924(j) conviction, as it
7 was committed, was not a “crime of violence.” We disagree.
8 Section 924(c)(3)(B) is not unconstitutionally vague because it applies to a
9 defendant’s case‐specific conduct, “with a jury making the requisite findings
10 about the nature of the predicate offense and the attending risk of physical force
11 being used in its commission.” United States v. Barrett, 903 F.3d 166, 178 (2d
12 Cir. 2018). If the conduct‐specific determination was not made by the jury, we
13 review the omission of the element from the jury charge for harmless error. Id.
14 at 184. We reverse if “the record contains evidence that could rationally lead to
15 a contrary finding with respect to the omitted element.” Id. (quoting Neder v.
16 United States, 527 U.S. 1, 15 (1999)).
17 Violence was integral to Lin’s extortion scheme; no rational juror would
18 have concluded otherwise. The jury heard that Lin extorted $2,000 a month
19 from Huo Guang Chen by threatening him with violence. And when Chen later
20 ceased the payments on instruction from Chan Qin Zhou, Lin ordered Zhou
21 killed, and then ordered Chen to resume payments. Accordingly, Lin’s
22 extortion “involve[d] a substantial risk that physical force against the person or
23 property of another may be used in the course of committing the offense,” 18
24 U.S.C. § 924(c)(3)(B), and the failure to submit the section 924(c)(3) inquiry to the
25 jury is harmless error beyond a reasonable doubt.
26 For the foregoing reasons, and finding no merit in Lin’s other arguments,
27 we hereby AFFIRM the judgment of the district court.
28 FOR THE COURT:
29 CATHERINE O’HAGAN WOLFE, CLERK
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