United States v. Ventura

United States v. Ventura

Opinion

 [*577]  SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Defendant-Appellant Kevin Ventura appeals from an August 20, 2015 judgment of the United States District Court for the Southern District of New York (Koeltl, J.) convicting him, after a jury trial, of five charges related to several murders, and sentencing him principally to two life terms plus forty-five years imprisonment. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.

a. Federal Arson Under 18 U.S.C. § 924(c)(3)

Ventura argues that his conviction on Count One, for committing murder  [*578]  through the use of a firearm, in violation of 18 U.S.C. § 924(j), must be overturned [**2]  because, he argues, federal arson is not a crime of violence under 18 U.S.C. § 924(c)(3). ] Ventura did not object below; however, any error here would be attributable to the later-decided Johnson v. United States, 135 S.Ct. 2551, 192 L. Ed. 2d 569 (2015). Accordingly, our review is either for plain error, or modified plain error. See United States v. Botti, 711 F.3d 299, 308-09 (2d Cir. 2013). Even applying the modified standard, vacatur is not warranted because any error here did not affect Ventura's substantial rights. In Count One, the government charged that Ventura used or carried a firearm, causing the death of Montanez, in connection with either of two predicate offenses: federal arson (as a crime of violence) or conspiracy to distribute marijuana (as a drug crime). To convict Ventura, the jury only needed to find that Ventura committed one (or both) of these predicate crimes. At trial, Ventura admitted to engaging in drug trafficking. Further, certain questions from the jury during deliberations indicate that the jury was considering the drug trafficking predicate on Count One, instead of the arson predicate. See Trial Tr. at 1661. We therefore conclude that any error here would not have affected Ventura's substantial rights, because he has not pointed to any error that would have led the jury to a different verdict on [**3]  Count One. Thus Ventura fails to meet either plain error standard.

b. Ex Post Facto Claims

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