UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2016

Submitted: January 27, 2017 Last Submission: September 19, 2019 Decided: March 16, 2021

Docket No. 15-1384-cr

UNITED STATES OF AMERICA,

Appellee,

— v. —

JOSE ANTONIO MARTINEZ, AKA YOYO,

Defendant-Appellant,

B e f o r e:

CABRANES and LYNCH, Circuit Judges.*

* Judge Ralph K. Winter, originally a member of this panel, died on December 8, 2020. This appeal has been decided by the two remaining members of the panel, who are in agreement. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998). Jose Antonio Martinez appeals from a judgment of the United States District Court for the Eastern District of New York (Garaufis, J.) sentencing him to 20 years in prison on his plea of guilty to participating in the affairs of a criminal enterprise, specifically, the “MS-13” street gang, through a pattern of racketeering consisting of, among other crimes, murder and a separate count of discharging a firearm during a crime of violence. Martinez appealed, initially arguing only that his sentence was substantively unreasonable. While his appeal was pending, the United States Supreme Court decided Johnson v. United States, 576 U.S. 591 (2015), holding that the “residual” clause of the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Then, in United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme Court reaffirmed its adherence to the categorical approach in the context of 18 U.S.C. § 924(c) and found the “residual” clause in § 924(c)(3)(B) unconstitutionally vague. In light of Davis, this Court then decided United States v. Barrett, 937 F.3d 126 (2d Cir. 2019), vacating a conviction under § 924(c)(3)(B) for using a firearm in the course of a conspiracy to commit a Hobbs Act robbery. Relying on Johnson, Davis, and Barrett, Martinez now argues, for the first time on appeal, that neither of the charged racketeering offenses are violent crimes and that his firearm conviction is therefore legally invalid. Finding no plain error, and rejecting his additional contention that his sentence is substantively unreasonable, we AFFIRM the judgment of the district court.

Susan Corkery and Audrey Spektor, Assistant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Bruce R. Bryan, Syracuse, New York, for Defendant-Appellant.

2 GERARD E. LYNCH, Circuit Judge:

On April 22, 2011, Jose Antonio Martinez, an associate of the violent La Mara Salvatrucha (“MS-13”) gang, pled guilty in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, J.) to all counts of a three-count superseding information charging him with substantive and conspiracy violations of the Racketeer-Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c) and (d), and discharging a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A), pursuant to a plea agreement calling for his cooperation with the authorities in their investigations. The pattern of racketeering underlying the substantive RICO charge included: (1) the murder, in violation of New York State law, of John Halley; (2) conspiracy to murder m