Stone v. United States

20-1778
Stone v. United States

In the
United States Court of Appeals
For the Second Circuit
________

AUGUST TERM 2021

ARGUED: SEPTEMBER 13, 2021
DECIDED: JUNE 21, 2022

No. 20-1778

DWAYNE STONE,
Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,
Respondent-Appellee.
________

Appeal from the United States District Court
for the Eastern District of New York.
________

Before: WALKER, NARDINI, and MENASHI, Circuit Judges.
________

Following a jury trial in the United States District Court for the
Eastern District of New York, Dwayne Stone was convicted of (1)
conspiracy to commit second-degree murder in aid of racketeering,
(2) second-degree murder in aid of racketeering, and (3) using a
firearm during and in relation to a crime of violence, in violation of 18
2 No. 20-1778

U.S.C. § 924(c). Eight years later, Stone filed a petition for habeas
corpus under 28 U.S.C. § 2255, contending that his § 924(c) conviction
and its accompanying sentence were unlawful. The district court
(Glasser, J.) denied the petition but granted a certificate of
appealability. On appeal, Stone argues that his § 924(c) conviction
was unlawful because (1) it was possibly predicated on conspiracy to
commit murder, an offense that no longer qualifies as a crime of
violence, and (2) even if it were predicated on substantive murder,
that offense also does not qualify as a crime of violence. We find no
merit in these challenges. Accordingly, we AFFIRM the judgment of
the district court.

________

DANIEL HABIB, Federal Defenders of New York,
Inc., Appeals Bureau, New York, NY, for Petitioner-
Appellant Dwayne Stone

NICHOLAS AXELROD (Amy Busa, Ellen H. Sise, on
the brief), Assistant United States Attorneys, for
Mark J. Lesko, Acting United States Attorney for
the Eastern District of New York, Brooklyn, NY, for
Respondent-Appellee United States of America

________

JOHN M. WALKER, JR., Circuit Judge:

Following a jury trial in the United States District Court for the
Eastern District of New York, Dwayne Stone was convicted of (1)
conspiracy to commit second-degree murder in aid of racketeering,
(2) second-degree murder in aid of racketeering, and (3) using a
firearm during and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c). Eight years later, Stone filed a petition for habeas
corpus under 28 U.S.C. § 2255, contending that his § 924(c) conviction
and its accompanying sentence were unlawful. The district court
3 No. 20-1778

(Glasser, J.) denied the petition but granted a certificate of
appealability. On appeal, Stone argues that his § 924(c) conviction
was unlawful because (1) it was possibly predicated on conspiracy to
commit murder, an offense that no longer qualifies as a crime of
violence, and (2) even if it were predicated on substantive murder,
that offense also does not qualify as a crime of violence. We find no
merit in these challenges. Accordingly, we AFFIRM the judgment of
the district court.

BACKGROUND

In 2007, Stone was indicted for multiple offenses stemming
from his affiliation with the “Folk Nation” gang operating in
Brooklyn, New York. 1 As relevant here, the indictment charged
Stone, under 18 U.S.C. § 1961, with participating in a racketeering
enterprise that included the conspiracy to murder and murder of
Jamel Washington (Count 1, Racketeering Act 7). Based on the same
operative facts, the indictment also charged Stone, under 18 U.S.C.
§ 1959, with (1) conspiracy to murder in aid of racketeering in
violation of N.Y. Penal Law §§ 105.15, 125.25(1) (Count 11), and (2)
murder in aid of racketeering in violation of N.Y. Penal Law
§§ 125.25(1) and 20.00 (Count 12). 2 Stone was also charged with using
a firearm “during and in relation to crimes of violence, to wit, the
crimes charged in Counts [11] and [12],” in violation of 18 U.S.C.
§ 924(c) (Count 13). 3

At trial, the jury heard evidence that Stone and another Folk
Nation member approached Washington, a rival gang member, who

1United States v. Nieves, 354 F. App’x 547, 549–50 (2d Cir. 2009); App. at
85–112.
2 N.Y. Penal Law § 105.15 criminalizes second-degree conspiracy; N.Y.

Penal Law § 125.25(1) criminalizes second-degree murder.
3 App. at 103–04.
4 No. 20-1778

was in the vicinity of Folk Nation territory. Stone then asked for and
received a firearm from his Folk Nation associate, and shot
Washington multiple times in the head and back, killing him.

At the close of the trial, the district court instructed the jury that
the crimes charged in Counts 11 and 12—conspiracy to commit
second-degree murder in aid of racketeering and second-degree
murder in aid of racketeering—were both “crimes of violence” as
related to the Count 13 firearm charge. 4 The district court, however,
did not give a specific instruction requiring the jury to unanimously
agree on which crime—Count 11, Count 12, or both—served as the
predicate for the Count 13 conviction. The jury found Stone guilty of
Counts 1, 11, 12, and 13 of the indictment, and found all the
racketeering acts alleged in the indictment proven, including Act
Seven, which charged Stone with conspiracy to murder Washington
and the murder of Washington. 5 On the Count 13 firearm charge, the
jury returned only a general verdict of guilty. The district court
sentenced Stone to, in relevant part, a prison term of 292 months on
Count 1, concurrent terms of mandatory life imprisonment on Counts
11 and 12, and to a term of 300 months’ imprisonment on Count 13,
to run consecutively to the other sentences.

In 2013 Stone filed a petition for habeas corpus under 28 U.S.C.
§ 2255, contending that his two mandatory life sentences were barred
by Miller v. Alabama, 6 because he was a juvenile when he committed
the offenses. The district court granted his petition and in 2014
resentenced Stone to 120 months’ imprisonment, running
concurrently, on Counts 1, 11, and 12, and reimposed the sentence of
300 months’ imprisonment on Count 13, to run consecutively to the

4 App. at 184.
5 Stone was also found guilty of other offenses that are not relevant to

this appeal. Nieves, 354 F. App’x at 550.
6 567 U.S. 460 (2012).
5 No. 20-1778

new sentences. 7 Stone’s projected release date is in June 2040.

In 2016, Stone filed a second § 2255 petition, arguing that his
Count 13 conviction under § 924(c) violated the Fifth Amendment’s
Due Process Clause. The motion was supplemented in 2019 following
the Supreme Court’s decision in United States v. Davis. 8 The district
court denied the petition in May 2020, but in July issued a certificate
of appealability to this court in accordance with 28 U.S.C. § 2253(c)(2).
This appeal followed.

DISCUSSION

Under § 2255, a movant may petition the 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, . . . [the sentencing]
court was without jurisdiction to impose such sentence, . . . the
sentence was in excess of the maximum authorized by law, or [the
sentence] is otherwise subject to collateral attack.” 9 We review de novo
a district court’s denial of a § 2255 petition. 10

On appeal, Stone argues that the jury was impermissibly
allowed to convict him of the Count 13 § 924(c) charge based on a
finding that he used a firearm in connection with a murder conspiracy
offense because murder conspiracy is not a “crime of violence” within
the meaning of § 924(c). He contends, in the alternative, that his
conviction and sentence under § 924(c) should be vacated even if it
was premised on a substantive murder offense because that offense

This court affirmed the new sentence. United States v. Stone, 621 F.
7

App’x 61, 63 (2d Cir. 2015).
8 139 S. Ct. 2319 (2019).

9 28 U.S.C. § 2255(a).

10 See Kassir v. United States, 3 F.4th 556, 561 (2d Cir. 2021).
6 No. 20-1778

also does not qualify as a crime of violence. We disagree with both
points.

I. Section 924(c) Conviction Predicated on Either Conspiracy
to Murder or Substantive Murder or Both

Section 924(c) provides for mandatory minimum sentences for
“any person who, during and in relation to any crime of violence . . .,
uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm.” 11 A crime of violence is defined in § 924(c)(3) as
“an offense that is a felony and—(A) has 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.” 12 In Davis, the
Supreme Court found the “residual” clause of the statute,
§ 924(c)(3)(B), to be unconstitutionally vague. Accordingly, only
felony offenses that have as “an element the use, attempted use, or
threatened use of physical force” under § 924(c)(3)(A) are valid
predicate crimes of violence to sustain a § 924(c) conviction.

Count 13 charged Stone with “knowingly and intentionally
us[ing] and carry[ing] a firearm during and relation to crimes of
violence, to wit, the crimes charged in Counts Eleven [conspiracy to
murder in aid of racketeering] and Twelve [murder in aid of
racketeering],” and “knowingly and intentionally possess[ing] a

11 18 U.S.C. § 924(c)(1)(A).
12 Id. § 924(c)(3)(A)–(B).
7 No. 20-1778

firearm in furtherance of such crimes of violence” in violation of
§ 924(c). 13

We recently held that conspiracy to commit murder in aid of
racketeering does not categorically qualify as a crime of violence. 14 As
described infra in Section II, however, murder in aid of racketeering
remains a categorical crime of violence. 15 Thus, the question
presented in this habeas corpus appeal is as follows: when a § 924(c)
conviction is predicated on either or both of two crimes, one of which
does not qualify as a crime of violence and one of which does, must
the conviction be vacated?

The Supreme Court has held that “[a] conviction based on a
general verdict is subject to challenge if the jury was instructed on
alternative theories of guilt and may have relied on an invalid one.” 16
However, the Court has also held that “habeas petitioners are not
entitled to habeas relief based on trial error unless they can establish
that it resulted in actual prejudice.” 17 To determine whether a habeas
petitioner was actually prejudiced or the error was harmless, “a
reviewing court finding such [instructional] error should ask whether
the flaw in the instructions ‘had substantial and injurious effect or
influence in determining the jury’s verdict.’” 18 There has been
“considerable debate about the exact contours of harmless-error
analysis in the collateral context—specifically, ‘how convinced,’ on

13 App. at 103–04.
14 United States v. Pastore, -- F. 4th --, 2022 WL 2057424, at *3 (2d Cir. June
8, 2022).
15 See United States v. Scott, 990 F.3d 94, 100–01 (2d Cir. 2021) (en banc).

16 Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008).

17 Davis v. Ayala, 576 U.S. 257, 267 (2015) (internal quotation marks

omitted); see also Santana-Madera v. United States, 260 F.3d 133, 140 (2d Cir.
2001) (noting that harmless-error analysis applies on collateral review).
18 Pulido, 555 U.S. at 58 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623

(1993)).
8 No. 20-1778

collateral review, ‘a reviewing court must be before it can declare a
federal constitutional error harmless.’” 19 But one thing is clear:
“[w]ithout prejudicial error, there is no basis for collateral relief.” 20

We must therefore determine whether Stone was prejudiced by
the district court’s incorrect instruction to the jury that conspiracy to
commit murder qualified as a crime of violence. “The usual
methodology for determining whether the harmlessness of a
constitutional trial error is established with the requisite degree of
certainty is to examine the record as a whole to determine if a rational
jury, absent the error, would have arrived at the same verdict . . . .” 21
Stone, however, asks the court to forego this method, and argues that
the court should instead apply the so-called “categorical approach”
to determine whether a Yates 22 error in the § 924(c) context is harmless
because that is “the only approach[] that this Court endorses in
resolving the question [of] whether a ‘crime of violence’ can support
a § 924(c) conviction.” 23

Under the categorical approach, courts identify the minimum
conduct necessary for conviction under a particular statute, looking
only to the statutory elements of the offense and not to the particular
underlying facts in a defendant’s case, and determine whether the
offense fits within a generic federal standard. 24 For example, the

19Kassir, 3 F.4th at 564 (quoting Peck v. United States, 106 F.3d 450, 454
(2d Cir. 1997)).
20 Id.

21 Peck, 106 F.3d at 455.

22 Yates v. United States, 354 U.S. 298, 312 (1957) (holding that there is

constitutional error when two different theories are submitted to a jury that
returns a general verdict of guilty and at least one of the theories was legally
insufficient).
23 Appellant’s Br. at 29.

24 United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018); Nijhawan v. Holder,

557 U.S. 29, 34–36 (2009).
9 No. 20-1778

categorical approach is used to determine such questions as whether
a defendant’s state or federal law conviction qualifies as a “crime of
violence” as defined in § 924(c) 25 and in the Armed Career Criminal
Act (“ACCA”), 26 and whether a conviction qualifies as a “crime
involving moral turpitude” as defined in the Immigration and
Nationality Act 27. Courts identify the elements of the statutory
offense of which the defendant has been convicted, and compare
them to the generic federal definition of a “crime of violence” or a
“crime involving moral turpitude.” In doing so, courts look at only
the minimum conduct criminalized by the statutory offense, and
consider whether that conduct is encompassed by the generic
offense. 28 If the minimum conduct criminalized by a statutory offense
is not covered by the generic offense, there is no categorical match,
and the statutory offense does not qualify as the generic offense such
as, in the above examples, a crime of violence or a crime involving
moral turpitude. 29

Stone urges this court to use the categorical approach here.
Specifically, he contends that we must look at the minimum criminal
conduct identified in the offense to which the § 924(c) violation
pertains and see if that offense qualifies as a crime of violence.
Because conspiracy to murder was charged as a predicate for Count
13, and is not a crime of violence, Stone argues that the minimum
conduct he was found to have committed is not categorically a crime
of violence, and so the entire § 924(c) conviction must be vacated.

Stone’s argument misses the fundamental distinction between
the reasons why courts employ the categorical approach in some

25 See United States v. Davis, 139 S. Ct. 2319, 2327–29 (2019).
26 See Mathis v. United States, 579 U.S. 500, 517–19 (2016).

27 See Mendez v. Mukasey, 547 F.3d 345, 348 (2d Cir. 2008).

28 Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013).

29 Williams v. Barr, 960 F.3d 68, 78 (2d Cir. 2020).
10 No. 20-1778

circumstances, and a harmlessness or prejudice inquiry in others. The
categorical approach, first articulated by the Supreme Court in Taylor
v. United States, 30 guides how a court may permissibly consider a
defendant’s previous or other convictions for the purpose of either
determining whether the defendant committed a separate offense
(e.g., a § 924(c) offense), or applying an enhanced prison term as
authorized by statute or the United States Sentencing Guidelines. 31
The categorical approach follows from Congress’s use of “uniform
categorical definitions to identify predicate offenses,” 32 and it “serves
‘practical’ purposes: It promotes judicial and administrative
efficiency by precluding the relitigation of past convictions in
minitrials conducted long after the fact.” 33 The categorical approach
also avoids the procedural and Sixth Amendment concerns that may
arise in employing a factual approach to determine whether a
defendant’s conviction for one offense can form an element of a
separate offense or the basis of a sentencing enhancement. 34 By
contrast, this Court’s review of constitutional trial errors for
harmlessness or prejudice is directed at the question of whether the
defendant received “a fair trial [if] not a perfect one.” 35

The distinction between the two inquiries is critical and
necessarily guides our decision as to the appropriate method for

495 U.S. 575 (1990).
30

See 3 Charles Alan Wright, Arthur R. Miller & Sarah N. Welling, Fed.
31

Prac. & Proc. Crim. § 549 (4th ed. 2022).
32 Taylor, 495 U.S. at 591.

33 Moncrieffe, 569 U.S. at 200–01.

34 See Taylor v. United States, 495 U.S. 575, 600–01 (1990).

35 3B Wright & Miller, Fed. Prac. & Proc. Crim. § 853; see also id. § 855 (“A

constitutional error of the trial type . . . would require reversal on direct
review unless it could be said to have been harmless beyond a reasonable
doubt. But on collateral attack by habeas corpus, relief can be given for
such an error only if it ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” (quoting Brecht, 507 U.S. at 638)).
11 No. 20-1778

evaluating Stone’s challenge in the circumstances presented in this
case. Under § 924(c), a court employs the categorical approach to
determine whether the defendant committed a crime of violence at
all. Here, by contrast, Stone does not challenge his conviction for
murder in aid of racketeering under N.Y. Penal Law § 125.25 (Count
12), and the parties agree that we are bound to hold that such a
conviction is a “crime of violence” under § 924(c)(1)(A). 36 Thus, the
question we must answer is not whether Stone committed a crime of
violence—he plainly did. Instead, our inquiry is focused on whether
Stone was prejudiced by the erroneous jury instruction stating that
his § 924(c) conviction could be predicated on either or both of two
crimes, only one of which remains a constitutionally valid predicate.
The cases relied on by Stone applying the categorical approach reflect
the concerns at the heart of that doctrine, 37 but these concerns are not
present here, on habeas review, where any determination that Stone’s
§ 924(c) conviction rested upon a valid predicate will not result in
increased sentencing exposure. Rather, on appeal from the denial of
a § 2255 motion, we review the whole record to determine whether
Stone received a fair, if imperfect, trial. We thus decline to import the
categorical method to a determination of prejudice upon a § 924(c)
conviction predicated in part on an invalid crime of violence.

Accordingly, in 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 the
alternative charged predicate that would sustain a lawful conviction”

See Scott, 990 F.3d at 125.
36

37 See, e.g., United States v. Dantzler, 771 F.3d 137, 139 (2d Cir. 2014)

(determination whether offenses were committed “on occasions different
from another” for purposes of application of sentencing under the Armed
Career Criminal Act requires the categorical approach).
12 No. 20-1778

beyond a reasonable doubt. 38 For example, in United States v.
Eldridge, 39 a defendant’s § 924(c) conviction was predicated on either
or both of two offenses, one of which no longer qualified as a crime of
violence after Davis. The court, in deciding whether the defendant
was prejudiced by the error, examined the record to determine
whether the jury would have returned a guilty verdict if it had been
instructed to use only the still-valid predicate for the § 924(c) charge. 40
It concluded that any error with the invalid predicate was harmless
“given the strength of the evidence supporting the [valid] predicate
and the link between [the defendant’s] brandishing of the gun and
that crime.” 41 This court has performed the same analysis on multiple
other occasions. 42

Here, the error of instructing the jury on the now-invalid
predicate was harmless to Stone because the jury found facts
“satisfying the essential elements of guilt” on the valid predicate of
substantive murder in aid of racketeering “that would [have]
sustain[ed] a lawful conviction” on the firearm offense. 43 Because
Count 13 directed the jury to look to Count 12 (the substantive murder

United States v. Laurent, 33 F.4th 63, 86 (2d Cir. 2022).
38

2 F.4th 27 (2d Cir. 2021).
39

40 Id. at 38.

41 Id. at 36.

42 See, e.g., Laurent, 33 F.4th at 87; United States v. White, 7 F.4th 90, 104

(2d Cir. 2021) (determining that the § 924(c) conviction should stand if an
indictment alleged two predicate crimes of violence for the § 924(c) count,
one of which had since been determined to be an invalid predicate, if there
was evidence that a defendant committed the still-valid predicate offense);
United States v. Dussard, 967 F.3d 149, 156–58 (2d Cir. 2020) (determining
that a defendant was not prejudiced by a § 924(c) conviction predicated on
an invalid crime of violence offense after looking at the record and
determining that there was sufficient evidence to support the conviction
based on a different offense).
43 Laurent, 33 F.4th at 86.
13 No. 20-1778

in aid of racketeering charge) as a predicate crime of violence, in
returning a guilty verdict on Count 13 the jury could have actually
found that he used a firearm in relation to that crime. Even without
that possibility, however, there is ample evidence in the record that a
properly instructed jury would have found that to be the case beyond
a reasonable doubt. First, the jury convicted Stone of the substantive
murder of Jamel Washington. 44 Second, the uncontroverted evidence
at trial was that Stone killed Washington with a gun that he had
borrowed for that purpose. 45 We are convinced that the jury, if
properly instructed as to Count 13, would have found beyond a
reasonable doubt that Stone “committed the crime of violence in the
murder of [Washington], and that the crime was committed by the
use of a firearm.” 46

Stone was therefore not prejudiced by the invalid jury
instruction that conspiracy to murder in aid of racketeering qualified
as a crime of violence, given his conviction of murder in aid of
racketeering and uncontroverted evidence that he used a gun to
commit that crime.

II. Section 924(c) Conviction Predicated on Substantive
Murder

Stone alternatively argues that his § 924(c) conviction should be
vacated even if it was predicated only on his § 1959 conviction for
murder in aid of racketeering in violation of N.Y. Penal Law
§ 125.25(1). He argues that a defendant may be convicted under
§ 125.25(1), murder in the second degree, based on a culpable

44 App. at 196–97.
45 App. at 256–57.

46 Laurent, 33 F.4th at 89.
14 No. 20-1778

omission, and therefore the statute does not categorically involve the
“use” of force as required for a crime of violence.

This Court, sitting en banc in United States v. Scott, rejected this
very argument. 47 We held that first-degree manslaughter under N.Y.
Penal Law § 125.20(1) necessarily involves the use of force, regardless
of whether the offense could be committed by omission, and so is
categorically a violent felony. 48 To hold otherwise would “preclude
courts from recognizing even intentional murder as a categorically
violent crime because, presumably, it is just as possible for a
defendant to cause a person’s death by omission when the
defendant’s specific intent is to kill, see N.Y. Penal Law § 125.25(1)
(second-degree murder), as when his specific intent is to cause serious
physical injury, see id. § 125.20(1) (first-degree manslaughter).” 49

47 Scott addressed whether first-degree manslaughter in New York
qualifies as a violent felony under the ACCA. 900 F.3d 98–99. A violent
felony for purposes of the ACCA is a crime that, among other things, “has
as an element the use, attempted use, or threatened use of physical force
against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added).
That provision thus employs language identical to that used in
§ 924(c)(3)(A), except that in the latter, “crime of violence” is defined to
include crimes having as an element the actual, attempted, or threatened
use of physical force “against the person or property of another.” 18 U.S.C.
§ 924(c)(3)(A) (emphasis added); see also United States v. Hill, 890 F.3d 51, 57
n.8 (2d Cir. 2018). Force against property is not at issue here. Accordingly,
whether an offense qualifies as a violent felony under the ACCA in Scott is
binding precedent here, when the crime of violence is against another
person.
48 Scott, 990 F.3d at 99–101; see also id. at 127 (Menashi, J., concurring in

part and concurring in the judgment) (agreeing that “first-degree
manslaughter in violation of section 125.20(1) of the New York Penal Law
is a violent felony . . . because it has as an element the use of physical force
against the person of another even though it may be committed by
omission”) (internal quotation marks, alterations, and citation omitted).
49 Id. at 100 (majority opinion).
15 No. 20-1778

As Stone concedes, the elements of first-degree manslaughter
and second-degree murder differ only with respect to the intent
element—whether the defendant had the intent either to cause
serious physical injury (manslaughter) or to cause death (second-
degree murder). 50 Because the intent element played no part in the
Scott court’s analysis of whether first-degree manslaughter is a violent
felony, its reasoning binds us with respect to whether second-degree
murder is a crime of violence. Thus, second-degree murder is
categorically a crime of violence under § 924(c).

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the
district court.

50 Appellant’s Br. at 36.