Petition for Writ of Certiorari — Kifano Jordan, Petitioner v. United States

No. ______________

In the Supreme Court of the United States

__________

KIFANO JORDAN, PETITIONER

V.

UNITED STATES OF AMERICA

__________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

__________

PETITION FOR A WRIT OF CERTIORARI

__________

JAMESA J. DRAKE

Counsel of Record

DRAKE LAW LLC

P.O. Box 56

Auburn, ME 04212

(207) 330-5105

jdrake@drakelawllc.com

Question Presented

Petitioner’s conviction on Count Two depends on whether the

attempted violation of New York’s second-degree murder statute,

N.Y.P.L. § 125.25(1), qualifies as a “crime of violence” for purposes of 18

U.S.C. § 924(c)(3)(A).

Thus, the question presented is:

Should this case be remanded for review and decision by the Second

Circuit Court of Appeals after this Court’s anticipated decision in United

States v. Pastore, 83 F.4th 113 (2d Cir. 2022), cert. granted sub nom.

Delligatti v. United States, 2024 U.S. LEXIS 2423 (U.S. June 3, 2024)?

i

Related Proceedings

United States District Court (S.D.N.Y.):

United States v. Jordan, No. 1:18-cr-00834

(September 6, 2019)

United States Court of Appeals (2d Cir.):

United States v. Jordan, No. 19-3032-cr(L);

19-3365-cr (Con); 19-4070-cr (Con) (February 6, 2024)

ii

Table of Contents

Opinion below ...................................................................................... 1

Jurisdiction .......................................................................................... 1

Statutory Provisions Involved ............................................................ 2

Statement of the Case ......................................................................... 3

I.

Historical facts ....................................................................... 3

II.

Procedural history ................................................................. 3

Reasons for Granting the Writ ........................................................... 5

I.

The Second Circuit’s reasoning in Pastore was wrong ........ 6

II.

If Pastore was wrongly decided, then Petitioner’s

case, which hinges on Pastore, was also wrongly

decided ................................................................................... 9

Conclusion............................................................................................ 9

Table of Authorities

Cases

Lawrence v. Chater, 516 U.S. 163 (1996) ................................................. 6

United States v. Jordan, 2024 U.S. App. LEXIS 2649

(Feb. 6, 2024) .................................................................................. 1, 4, 5, 9

United States v. Pastore, 36 F.th 423 (2d Cir. 2022) ............................... 4

United States v. Pastore, 83 F.4th 113 (2d Cir. 2022), cert. granted sub

nom. Delligatti v. United States, 2024 U.S. LEXIS 2423

(U.S. June 3, 2024) ......................................................................... 5, 7, 8

United States v. Pastore, 83 F.4th 113 (2d Cir. 2023) ............................. 4

iii

United States v. Scott, 990 F.3d 94 (2d Cir. 2021) (en banc) ............... 8, 9

United States v. Taylor, 142 S.Ct. 2015 (2022) .................................... 4, 6

Statutes

18 U.S.C. § 924 ........................................................................................... 2

18 U.S.C. § 924(2) ....................................................................................... 3

18 U.S.C. § 924(c) ....................................................................................... 9

18 U.S.C. § 924(c)(3)(A) .............................................................................. 7

18 U.S.C. § 924(c)(A)((ii) ............................................................................ 3

18 U.S.C. §§ 924(c)(A)(i) ............................................................................. 3

28 U.S.C. § 1254(1) ..................................................................................... 1

N.Y. Penal Law § 125.25(1) ....................................................................... 4

iv

In the Supreme Court of the United States

__________

KIFANO JORDAN, PETITIONER

V.

UNITED STATES OF AMERICA

__________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

__________

PETITION FOR A WRIT OF CERTIORARI

__________

Opinion Below

The summary order and judgment of the court of appeals is

reported at 2024 U.S. App. LEXIS 2649.

Jurisdiction

The summary order and judgment of the court of appeals was

entered on February 6, 2024. The court of appeals denied a timely filed

pro se petition for rehearing, or, in the alternative, for rehearing en banc

on May 14, 2024. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

1

Statutory Provisions Involved

Section 924 of Title 18 of the United States Code provides:

(c)(1)(A) Except to the extent that a greater minimum

sentence is otherwise provided by this subsection or by

another provision of law, any person who, during and in

relation to any crime of violence or drug trafficking crime

(including a crime of violence or drug trafficking crime that

provides for an enhanced punishment if committed by the use

of deadly or dangerous weapon or device) for which the person

may be prosecuted in a court of the United States, uses or

carries a firearm, or who, in furtherance of any such crime,

possesses a firearm, shall, in addition to the punishment

provide for such crime of violence or drug trafficking crime –

(i) be sentenced to a term of imprisonment of not less

than 5 years;

(ii) if the firearm is brandished be sentenced to a term

of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term

of imprisonment not less than 10 years.

*****

(3) For purposes of this subsection the term “crime of

violence” means an offense that is a felony and –

(A) has as 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.

2

Statement of the Case

Petitioner pleaded guilty to, inter alia, Count Two of the

information, which alleged that he brandished and discharged a firearm

during and in relation to a crime of violence, namely attempted murder

in aid of racketeering, in violation of 18 U.S.C. §§ 924(c)(A)(i) – (ii) and

2.1 The district court sentenced Petitioner to an aggregate carceral term

of 180 months, to be followed by five years of supervised release.

I.

Historical facts

Regarding Count Two, Petitioner admitted that on April 21, 2018,

he fired a weapon at a motor vehicle that had been following his car.

Petitioner said that he did this to protect himself from gang rivals.

II.

Procedural history

In the district court, Petitioner failed to argue that Count Two was

predicated on an offense that did not meet § 924(c)(1)(A)’s definition of a

“crime of violence.” He made that challenge for the first time on appeal.

Count One of the two-count information accused Petitioner of possessing a

firearm during and in relation to a crime of violence, namely assault with a dangerous

weapon in aid of racketeering, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.

Petitioner pleaded guilty to both Counts One and Two. On Count One, the district

court imposed 60 months’ prison. On Count Two, the district court imposed the

mandatory minimum term of 120 month’s prison, and it ordered the prison terms to

run consecutively.

1

3

Throughout the duration of the appeal, Petitioner maintained that

his conviction on Count Two did not qualify as a crime of violence, and

that the Second Circuit’s conclusion to the contrary in Pastore was at

odds with this Court’s decision in United States v. Taylor, 142 S.Ct. 2015

(2022). Petitioner’s opening brief was filed in the interregnum between

the Second Circuit’s original and amended decisions in Pastore. United

States v. Pastore, 36 F.th 423 (2d Cir. 2022); United States v. Pastore, 83

F.4th 113 (2d Cir. 2023). At oral argument, Petitioner acknowledged that

the amended Pastore decision dictated the outcome under the law of the

circuit doctrine, but he specifically noted that he was not conceding the

point and would continue to press in this Court the issue of whether an

attempted violation of New York’s second-degree murder statute

qualifies as a crime of violence.

In its summary order, the Second Circuit observed that Count Two

was predicated on an attempted violation of the first subdivision of New

York’s second-degree murder statute, N.Y. Penal Law § 125.25(1), and it

rejected Petitioner’s argument that this statute was not a “crime of

violence.” United States v. Jordan, 2024 U.S. App. LEXIS 2649, *10-11

(Feb. 6, 2024). The court’s reasoning is set forth in its entirety below:

4

Because Count Two must have been predicated on an

attempted violation of N.Y.P.L. § 125.25(1), we conclude that

the district court did not err, let alone plainly err, in accepting

[Petitioner’s] plea to that offense. We have already decided

that an attempted violation of that statute constitutes a crime

of violence. United States v. Pastore, 83 F.4th 113, 119-20 (2d

Cir. 2023). [Petitioner] contends that Pastore’s reasoning

does not survive the Supreme Court’s decision in United

States v. Taylor, 596 U.S. 845, 142 S.Ct. 2015, 213 L. Ed. 2d

349 (2022), which held that an attempted Hobbs Act robbery

does not qualify as a crime of violence, see id. at 2020-21. But

Jordan’s argument is foreclosed by our precedent. We

addressed the impact of Taylor in our amended opinion in

Pastore and determined that Taylor did not undermine the

conclusion that an attempted violation of N.Y.P.L. § 125.25(1)

constitutes a crime of violence.

Id. at *10-11 (full citation to Pastore added).

Now, of course, the Second Circuit’s decision in Pastore is under

review in this Court. See United States v. Pastore, 83 F.4th 113 (2d Cir.

2022), cert. granted sub nom. Delligatti v. United States, 2024 U.S.

LEXIS 2423 (U.S. June 3, 2024).

Reasons for Granting the Writ

Petitioner does not seek plenary review in this case at the present

time. Instead, Petitioner respectfully suggests that this Court hold this

petition in abeyance pending the anticipated decision in Delligatti, and

5

then decide whether to deny the petition, grant plenary review, or vacate

the judgment of the court of appeals and remand the case to that court

for further consideration in light of Delligatti. Such a procedure comports

with this Court’s guidance in Lawrence v. Chater, 516 U.S. 163, 167-68

(1996) (per curiam):

Where

intervening

developments,

or

recent

developments that we have reason to believe the court below

did not fully consider, reveal a reasonable probability that the

decision below rests upon a premise that the lower court

would reject if given the opportunity for further consideration,

and where it appears that such a redetermination may

determine the ultimate outcome of the litigation, a GVR order

is, we believe, potentially appropriate.

Id. at 167-68.

Because this Court has already granted review in Delligatti,

Petitioner dispenses with an argument about why the issues presented

herein merit Supreme Court review. Instead, Petitioner explains why

the Second Circuit’s legal analysis was wrong and how it impacted the

ultimate outcome of the litigation.

I.

The Second Circuit’s reasoning in Pastore was wrong.

In United States v. Taylor, 142 S.Ct. 2015, 2020-21 (2022), this

Court held that attempted Hobbs Act robbery is not a crime of violence.

6

This is so because a completed Hobbs Act robbery involves the taking of

property “by means of actual or threatened force,”

such that an

attempted Hobbs Act robbery could be committed through the attempted

threat of force, which would not categorically involve the “use attempted

use, or threatened use of physical force” as required for a § 924(c)(3)(A)

conviction. Ibid.

But the Second Circuit reasoned that attempted second-degree

murder is distinguishable from an attempted Hobbs Act robbery because,

“unlike Hobbs Act robbery, the crime of second-degree murder cannot be

committed through the mere threat of force and must instead involve the

actual use of force.” Pastore, 83 F.4th at 121. According to the Second

Circuit, “a conviction for attempted murder categorically means that the

defendant took a substantial step toward the use of physical force – and

not just a substantial step toward the threatened use of physical force.”

Id. (cleaned up).

Of course, the defendant in Pastore protested – correctly – that

attempted murder could be committed “by way of affirmative acts or

omissions” and therefore it was not, categorically, a crime of violence. Id.

(emphasis in the original). The Second Circuit disagreed, countering that

7

“whether a defendant acts by commission or omission, in every instance,

it is his intentional use of physical force against the person of another

that causes death.” Id. (citing United States v. Scott, 990 F.3d 94, 123

(2d Cir.), cert. denied, 142 S.Ct. 387 (2021) .

This is precisely the logic that has splintered the courts of appeals,

and that this Court will address in Delligatti. Illustrating the division,

and the arguments generally made on either side, both the petition for

certiorari and the government’s brief in opposition discuss the reasoning

in splintered Scott opinion at length. Scott is the bedrock upon which the

amended Pastore decision is based.

See Pastore, 83 F.4th at 121

(“Delligatti…argues that attempted murder is not a crime of violence

because it can be committed ‘by affirmative acts or omissions.’ This

argument fails in light of our recent en banc decision in Scott.”) (internal

citation omitted; emphasis in the original).

Judge Pooler, dissenting in Scott and joined in relevant part by

Judges Leval and Carney, have it right.

“[A] crime committed by

omission – definitionally, no action at all – cannot possibly be a crime

involving physical, violent force.” Scott, 993 F.3d at 138. Judge Leval

also had it right in his dissenting opinion in Scott, which was joined in

8

relevant part by four other judges, when he reasoned that the rule of

lenity applies because the use-of-force claim “does not clearly apply to a

crime that can be committed by doing nothing at all.” Id. at 133.

II.

If Pastore was wrongly decided, then Petitioner’s case,

which hinges on Pastore, was also wrongly decided.

A decision in the Petitioner’s favor in Delligatti will have direct and

important consequences for the Petitioner here.

The Second Circuit

clearly and expressly ruled against the Petitioner in the instant case

based entirely on its reasoning in Pastore and Scott, and its conclusion

that attempted murder in violation of New York law is a valid predicate

crime of violence under section 924(c). See Jordan, 2024 U.S. App. LEXIS

2649, *10-11. If this Court concludes otherwise, causing the vacatur of

Jordan’s conviction and sentence on Count Two, he will be spared a

consecutive 120-month prison sentence.

Conclusion

The petition for a writ of certiorari should be granted.

9

Respectfully submitted,

JAMESA J. DRAKE

Counsel of Record

DRAKE LAW LLC

August 2024

P.O. Box 56

Auburn, ME 04212

(207) 330-5105

jdrake@drakelawllc.com

10

Index of Appendix

United States v. Jordan,

2024 U.S. App. LEXIS 2649 (Feb. 6, 2024) ........................................ A1

A1

A2

A3

A4