16-3715
Christopher Moore v. United States of America
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
12th day of November, two thousand twenty one.
Present: ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________________________
CHRISTOPHER MOORE,
Petitioner-Appellant,
v. 16-3715-pr
UNITED STATES OF AMERICA,
Respondent-Appellee.
_____________________________________________________
Appearing for Appellant: Daniel Habib, Yuanchung Lee, Federal Defenders of New York,
Inc. Appeals Bureau, New York, N.Y.
Appearing for Appellee: Lara Treinis Gatz, Amy Busa, Assistant United States Attorneys,
for Breon S. Peace, United States Attorney for the Eastern District
of New York, Brooklyn, N.Y.
Appeal from the United States District Court for the Eastern District of New York
(Feuerstein, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the opinion and order of said District Court be and it hereby is
AFFIRMED in part and VACATED in part.
Christopher Moore appeals from the September 6, 2016 opinion and order of the United
States District Court for the Eastern District of New York (Feuerstein, J.) denying his petition
pursuant to 28 U.S.C. § 2255. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.
Moore first argues that his conviction on Count 10 under 18 U.S.C. § 924(c), predicated
on murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) (“VICAR murder”),
should be vacated because VICAR murder is not a “crime of violence” under 18 U.S.C. §
924(c)(3)(A) after United States v. Davis, 139 S.Ct. 2319 (2019). Count Ten was premised on
Count One, which alleged:
On or about January 1, 2001, within the Eastern District of New York, the
defendants . . . CHRISTOPHER MOORE, . . ., for the purposes of
maintaining and increasing their positions in the Nètas, an enterprise engaged
in racketeering activity, did knowingly and intentionally murder Giovanni
Aguilar, an individual whom they believed to be a member of MS-13, in
violation of New York Penal Law Section 125.25(1).
Whether an offense is a “crime of violence” under 18 U.S.C. § 924(c) is a question of law
that this court reviews de novo. See United States v. Bordeaux, 886 F.3d 189, 192 (2d Cir. 2018).
The elements clause of § 924(c) defines a “crime of violence” by looking at whether the crime
“has as an element the use, attempted use, or threatened use of physical force against the person
of another . . . .” 18 U.S.C. § 924(c)(3)(A). “We look to [the statute of conviction] in identifying
the elements of a crime, but to federal law in determining ‘whether the consequences of the
conduct that those elements require[ ] . . . render[ ] conviction for that conduct a “[crime of
violence]” under federal law.’” United States v. Scott, 990 F.3d 94, 104 (2d Cir. 2021) (“Scott
II”) (citing Villanueva v. United States, 893 F.3d 123, 129 (2d Cir. 2018)). This process “triggers
a categorical inquiry to determine the minimum criminal conduct necessary to satisfy the
elements of a crime, without regard to whether the defendant himself engaged in more egregious
conduct.” Id. (citing United States v. Stitt, 39 S. Ct. 399, 405 (2018)). Moore argues that his
conviction for VICAR murder cannot be a Section 924(c)(3)(A) “crime of violence” because
VICAR murder may encompass reckless conduct and non-forceful felony murder. Moore
concedes that the indictment stated that he was charged for VICAR intentional murder in
violation of N.Y.P.L. § 125.25(1).
Moore relies on United States v. Bagaric and United States v. Diaz for the proposition
that a district court need not prove or charge the jury on the state law elements of RICO and
VICAR offenses, including murder, and may instead rely on “accurate generic definitions of the
crimes charged.” 706 F.2d 42, 63 (2d Cir. 1983); but see United States v. Carrillo, 229 F.3d 177,
2
185 (2d Cir. 2000) (discussing the implications of Bagaric and stating that despite Bagaric,
“district judges conventionally instruct juries on the elements of the state law offenses charged as
predicate acts”). Moore argues that because Bagaric and Diaz allow a jury instruction to include
the generic definition of murder, and because, in theory, this generic definition encompasses
reckless murder and felony murder, his conviction for VICAR murder is not a “crime of
violence” under Section 924(c)(3)(A).
But Moore’s reading of Bagaric and Diaz ignores the fact that this Court has narrowed
the holdings and the practical effect of those cases and called into question their viability. See
United States v. Carillo, 229 F.3d 177, 183-186 (2d Cir. 2000). Moreover, Moore’s arguments
fail even under the broadest reading of Bagaric and Diaz. Moore does not dispute that he was
charged under 18 U.S.C. § 1959(a)(1) with VICAR intentional murder in violation of NYPL §
125.25(1). Nor does he allege that the jury convicted him for behavior that was anything other
than intentional murder. 1 Instead, Moore’s contention—that a defendant could be charged with
VICAR intentional murder in violation of NYPL § 125.25(1) and yet be convicted for behavior
constituting reckless or felony murder—is purely hypothetical. As we have instructed, that is not
enough. See United States v. Hill, 890 F.3d 51, 56 (2d Cir. 2018) (to successfully claim that the
predicate statute’s definition sweeps more broadly than the definition of a “crime of violence,” a
defendant “must at least point to his own case or other cases in which the . . . courts did apply the
statute in the . . . manner for which he argues”) (internal quotation marks omitted). We therefore
hold that the district court correctly concluded that VICAR intentional murder constitutes a
“crime of violence” for purposes of 18 U.S.C. § 924(c)(3)(A). 2
Moore also argues—and the government concedes—that his convictions on Counts 11-12
and 14-16 should be vacated. Accordingly, we VACATE those convictions.
We have considered the remainder of appellant’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED in part and VACATED
in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1
As Moore acknowledges, our case law makes clear that intentional murder as defined in NYPL §
125.25(1) is itself a crime of violence. See Scott II, 990 F.3d at 100 (rejecting contention that New York
first-degree manslaughter is not a crime of violence in part because the logic of that contention “would
preclude courts from recognizing even intentional murder as a categorically violent crime”). Though
Moore argues that Scott II was wrongly decided, that case is authoritative in this Circuit, the Supreme
Court having denied further review of its holding, 2021 WL 4822682 (Oct. 18, 2021).
2
We express no views, however, on whether a conviction under 18 U.S.C. § 1959(a)(1) for VICAR
depraved-heart murder or felony murder constitutes a “crime of violence” for purposes of 18 U.S.C. §
924(c)(3)(A).
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Christopher Moore v. United States
Combined Opinion