Petition for Writ of Certiorari — Gurmeet Singh Dhinsa, Petitioner v. United States

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

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

11th day of January, two thousand twenty-two.

Gurmeet Singh Dhinsa,

Petitioner - Appellant,

ORDER

v.

Docket No: 21-194

United States of America,

Respondent - Appellee.

Appellant, Gurmeet Singh Dhinsa, filed a petition for panel rehearing, or, in the

alternative, for rehearing en banc. The panel that determined the appeal has considered the

request as a motion for reconsideration, and the active members of the Court have considered the

request for rehearing en banc.

IT IS HEREBY ORDERED that the motion and petition are denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

MANDATE

E.D.N.Y. - Bklyn

16-CV-3293

97-cr-672

Korman, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

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 27th day of October, two thousand twenty-one.

Present:

Amalya L. Kearse,

Raymond J. Lohier, Jr.,

Michael H. Park,

Circuit Judges.

Gurmeet Singh Dhinsa,

Petitioner-Appellant,

v.

21-194

United States of America,

Respondent-Appellee.

Appellant, pro se, moves for a certificate of appealability. Upon due consideration, it is hereby

ORDERED that the motion is DENIED and the appeal is DISMISSED because Appellant has not •

“made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see

also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

(u.

A True Copy

Cathwina O’Hagan Wj

jk

MANDATE ISSUED ON 1/18/2022

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

United States of America

MEMORANDUM & ORDER

97-cr-672 (ERK)

- against Gurmeet Singh Dhinsa

Defendant.

KORMAN, J.:

Petitioner Gurmeet Singh Dhinsa moves to vacate his conviction under 18

U.S.C. § 924(c) on the ground that one of the predicates for that conviction no

longer qualifies as a crime of violence.

BACKGROUND

The Second Circuit and I have previously detailed Dhinsa’s crimes at length,

and I need not fully recount them here. United States v. Dhinsa, 243 F.3d 635 (2d

Cir. 2001) (“Dhinsa F); Dhinsa v. Krueger, 238 F. Supp. 3d 421 (E.D.N.Y. 2017)

(“Dhinsa IF), vacated in part and remanded, 917 F.3d 70 (2d Cir. 2019) (“Dhinsa

IIF).

As relevant here, Dhinsa was “the self-professed leader of the ‘Singh

Enterprise,’ a vast racketeering organization built around a chain of fifty-one

gasoline stations that Dhinsa owned and operated throughout the New York City

metropolitan area under the name ‘Citygas.’

Dhinsa installed ‘pump-rigging’

technology that overcharged consumers for gas, generating tens of millions of

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dollars of excess revenues over a period of a decade. He protected the enterprise by

bribing public officials, purchasing weapons, and threatening, kidnapping, or

murdering individuals whom he viewed as threats to his operations.” Dhinsa III,

917 F.3d at 74 (internal quotation omitted).

The convictions at issue here arise from the murder of Manmohan Singh, who

worked at a Citygas station. “Numerous witnesses testified that throughout 1997,

Manmohan1 was actively searching for his brother, Kulwant, who had disappeared

from a Citygas station in 1995.

Manmohan suspected Dhinsa of kidnapping

Kulwant or otherwise contributing to Kulwant’s disappearance.” Dhinsa II, 238 F.

Supp. 3d at 424 (internal citation omitted).

Dhinsa then paid a hitman, Marvin

Dodson, to kill Manmohan because of Manmohan’s cooperation with the police. Id.

Dhinsa supplied Dodson with a gun. Id. “After accompanying Manmohan to an

office area at the station under the pretext that he needed a can of oil, Dodson ordered

Manmohan to kneel down near a bench and proceeded to fire two shots into the back

of Manmohan’s head, killing him.” Dhinsa I, 243 F.3d at 644. The Second Circuit

described the evidence against Dhinsa for his role in Manmohan’s murder as “direct

and overwhelming.” Id. at 660.

The majority of the people involved in this case share the same religious

affiliation, which requires the men to adopt the last name ‘Singh.’ To avoid

confusion, [I] will refer to [the petitioner] as Dhinsa and other persons by their

first name.” Dhinsa I, 243 F.3d at 642 n. 1.

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The jury convicted Dhinsa of several crimes relating to Manmohan’s murder,

including conspiracy to commit murder in aid of racketeering (Count 7), knowingly

and intentionally murdering Manmohan in aid of racketeering (based on seconddegree murder under New York Penal Law § 125.25) (Count 8), murder with the

intent to prevent Manmohan from communicating with federal law enforcement

(Count 9), and using a firearm during a crime of violence under 18 U.S.C. § 924(c)

(Count 10). Superseding Indictment at 16-18, ECF No. 534, Ex. A; Judgment, ECF

No. 440. The predicate crimes of violence underlying the conviction for Count 10

were the crimes charged in Counts 7, 8 and 9. See Superseding indictment at 18.

Counts 8, 9 and 10 were premised on accomplice liability. See ECF No. 528, Ex. at

6255-56, 6284, 6288-91.

In addition to the murder of Manmohan, Dhinsa was convicted of murdering,

threatening to murder or conspiring to murder various other individuals, along with

numerous other offenses. The Second Circuit affirmed most of the convictions,

including all convictions on the counts arising out of the murder of Manmohan. See

Dhinsa III, 917 F.3d at 75. Dhinsa is serving six concurrent life sentences, numerous

lesser sentences running concurrent with the life sentences, and a sixty-month term

on the § 924(c) conviction that runs consecutive to all other sentences. Dhinsa II,

238 F. Supp. 3d at 423.

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Dhinsa now seeks to vacate his conviction under 18 U.S.C. § 924(c) on the

ground that one of the predicates underlying that conviction—conspiracy to commit

murder in aid of racketeering—no longer counts as a crime of violence following

United States v. Davis, 139 S. Ct. 2319 (2019). The Second Circuit granted leave to

file a successive § 2255 motion. It “acknowledge[d] that Petitioner’s § 924(c)

conviction might still be supported by a valid predicate, even if other predicates are

no longer valid after . . . Davis.” Mandate, ECF No. 524. The Court of Appeals

concluded, however, that “the district court is better suited” to make that

determination in the first instance. Id.

DISCUSSION

“A prisoner in custody . . . claiming the right to be released upon the ground

that the sentence was imposed in violation of the Constitution or laws of the United

States . . . may move the court which imposed the sentence to vacate, set aside, or

correct the sentence.” 28 U.S.C. § 2255(a). Although vacatur of the § 924(c)

sentence would have no practical effect given Dhinsa’s multiple life sentences, the

Court of Appeals held that he nonetheless has standing to bring this challenge

because vacatur would entitle him to the return of the special assessment for that

conviction, even though Dhinsa’s counsel “conceded that special assessments are a

‘legal fiction’ within the context of collateral consequences, and that Dhinsa has no

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interest in actually obtaining a refund.” Dhinsa II, 238 F. Supp. 3d at 431; Dhinsa

III, 917 F.3d at 78-79.

Section 924(c) criminalizes carrying, brandishing or using a firearm during

and in relation to any “crime of violence.” A “crime of violence” is defined as a

felony that (A) has as an element the use, attempted use, or threatened use of physical

force against the person or property of another (the “elements” clause); or (B) 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 (the “residual”

clause). 18 U.S.C. § 924(c)(3). In Davis, the Supreme Court struck down the

residual clause as unconstitutionally vague. 139 S. Ct. at 2336.

Courts apply the “categorical approach” in determining whether an offense is

a crime of violence under the elements clause. United States v. Hill, 890 F.3d 51,55

(2d Cir. 2018).

Under the categorical approach, courts “evaluate whether the

minimum criminal conduct necessary for conviction under a particular statute

necessarily involves violence,” and not the facts of the underlying crime. United

States v. Hendricks, 921 F.3d 320, 327 (2d Cir. 2019) (internal quotation omitted).

If the statute of offense is ‘divisible’—i.e., it defines multiple separate crimes—we

apply the ‘modified categorical’ approach and look at a limited class of documents

from the record of conviction to determine what crime, with what elements, a

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defendant was convicted of.” Gray v. United States, — F.3d —, 2020 WL 6685302,

at *2 (2d Cir. Nov. 13, 2020) (internal quotation omitted).

The U.S. Attorney concedes that Count 7—conspiracy to commit murder in

aid of racketeering—does not qualify as a crime of violence under the elements

clause. I agree with the U.S. Attorney, however, that Count 10 continues to be

supported by a valid predicate. I have previously held that second-degree murder

under New York Penal Law § 125.25—which underlies Count 8’s charge of murder

in aid of racketeering—is a crime of violence under the elements clause. Rizzuto v.

United States, 2019 WL 3219156 (E.D.N.Y. July 17, 2019). As I explained, in

determining whether a racketeering offense qualifies as a crime of violence, “I would

look to the predicate offenses—here, murder—to determine whether a crime of

violence is charged.” Id. at *2 (internal quotation omitted). Section 125.25 is a

divisible statute and, as in Rizzuto, it is clear from Dhinsa’s indictment that he was

charged under subsection (1), which criminalizes intentional murder. Id. at *3;

Superseding Indictment at 17. Intentional murder necessarily involves the use of

force and is therefore a crime of violence. Rizzuto, 2019 WL 3219156, at *3-4; see

also United States v. Medunjanin, 2020 WL 5912323, at *4 (E.D.N.Y. Oct. 6,2020);

Boykin v. United States, 2020 WL 774293, at *7-8 (S.D.N.Y. Feb. 18, 2020).

Similarly, Dhinsa’s conviction for informant murder in Count 9 is a crime of

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violence, because the relevant subsection likewise criminalizes intentional murder.

See 18 U.S.C. § 1512(a)(1)(C); Superseding Indictment at 17-18.2

Dhinsa argues, however, that since his § 924(c) conviction was based on all

of Counts 7 through 9, that conviction cannot stand because Count 7 is not a crime

of violence. He is mistaken. “Courts in the Second Circuit have consistently held

that a § 924(c) conviction may survive even when one of multiple predicates has

been invalidated.”

Medunjanin, 2020 WL 5912323, at *6 (internal quotation

omitted). Rather, “[t]he correct rule is that if a jury is instructed on both valid and

invalid predicate offenses, the conviction stands if the verdict undoubtedly rests on

a valid predicate.” Sessa v. United States, 2020 WL 3451657, at *5 (E.D.N.Y. June

24, 2020) (internal quotation and alteration omitted); see United States v. Walker,

789 F. App’x 241, 244-45 (2d Cir. 2019) (upholding § 924(c) conviction because it

“rested on convictions for both conspiracy and substantive Hobbs Act robbery as the

predicate crimes of violence”) (emphasis in original).

Here, there is no question that Dhinsa’s § 924(c) conviction rested on valid

predicates. As explained above, both Counts 8 and 9 are crimes of violence. The

2

This analysis applies even though Dhinsa was convicted of Counts 8 and 9

under a conspiracy or aiding-and-abetting theory of liability. “A substantive

conviction of a categorical crime of violence involving a firearm is a valid

predicate for a § 924(c) conviction, regardless of what theory of liability it

proceeds on.” Sessa v. United States, 2020 WL 3451657, at *5 (E.D.N.Y. June

24, 2020) (internal citations omitted).

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V-

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jury convicted Dhinsa of these crimes and of violating § 924(c) based on “direct and

overwhelming evidence” of “Dhinsa’s involvement in Manmohan’s murder.”

Dhinsa /, 243 F.3d at 660. “When a jury is instructed on alternative theories of guilt

and returns a verdict that may rest on a legally invalid theory, it is subject to

harmless-error analysis.” Medunjanin, 2020 WL 5912323, at *6 (citing Skilling v.

United States, 561 U.S. 358, 414 (2010)). It is clear beyond any reasonable doubt

that the jury would have convicted Dhinsa of violating § 924(c) had it been instructed

that only Counts 8 and 9 were valid predicates. See United States v. Erbo, 2020 WL

6802946, at *3 (S.D.N.Y. Nov. 19, 2020) (upholding § 924(c) convictions “even in

the absence of the conspiracy predicates” where defendant was convicted of

substantive murder charges); Sessa, 2020 WL 3451657, at *5 (“No rational jury

would return a verdict of guilty on a § 924(c) charge predicated on two conspiracies

to commit murder with a firearm and the substantive offense of murder committed

with a firearm, and not return the same verdict if predicated only on the murder

committed with a firearm.”). The notion that Dhinsa’s conviction under § 924(c) was

predicated only on a conspiracy to commit murder, but not on his role in intentionally

committing that same murder, is absurd.

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CONCLUSION

Petitioner’s motion to vacate is denied. I also decline to issue a certificate of

appealability.

SO ORDERED.

Edward/7Z. Karmcuv

Brooklyn, New York

November 30, 2020

Edward R. Korman

United States District Judge

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