The Supreme Court agreed on June 3 to hear an appeal from Salvatore “Fat Sal” Delligatti, an alleged Genovese crime family associate who is challenging a gun crime conviction that added five years to his prison sentence.
Two years ago, the court made it more difficult for prosecutors to pursue enhanced prison sentences for a “crime of violence.”
The court ruled that an attempted Hobbs Act robbery isn’t necessarily a crime of violence and therefore, the perpetrator shouldn’t have received a longer sentence.
The Supreme Court granted the petition for certiorari, or review, in Delligatti v. United States, in an unsigned order.
No justices dissented, and the court didn’t explain its decision. At least four of the nine justices must vote to grant the petition for it to advance to the oral argument stage.
The section authorizes enhanced punishments for using a firearm in connection with a “crime of violence” as defined in 18 U.S. Code.
As predicates for the charge, the government relied on four of the other charged offenses.
Mr. Delligatti moved to dismiss before the trial, arguing that none of the charged predicates qualified as crimes of violence—either under the use-of-force clause or under the so-called residual clause of Section 924(c)(3)(B).
The federal district court denied his motion, finding that the other offenses were valid predicates under both clauses.
Mr. Delligatti was convicted by a federal jury in New York of all charges in March 2018. He received a sentence of 300 months imprisonment, which included a consecutive sentence of 60 months for the conviction under Section 924(c).
The U.S. Court of Appeals for the Second Circuit affirmed the conviction.
Prosecutors said Mr. Delligatti was involved in a plot to kill a local “bully” who was “terrorizing” a gas station that was a frequent hangout for his associates.
He is said to have hired members of the Crips gang through a third party to carry out the contract killing and provided a revolver for that purpose.
Police learned of the plan and prevented the gang members from carrying it out.
Mr. Delligatti argues that the firearms possession count under the Hobbs Act doesn’t count as a crime of violence.
While his appeal was pending, the Supreme Court ruled in United States v. Davis (2019) that the relevant section of the Hobbs Act was unconstitutional.
Then, three years later, the Second Circuit held in United States v. Laurent that conspiracy offenses do not satisfy the use-of-force clause.
This means that “most of the charged predicate offenses could no longer support Mr. Delligatti’s conviction under [the section],” according to the petition.
The government argued that the conviction for attempted murder in aid of racketeering, which was based on a charge of attempted second-degree murder under New York state law, supported the enhanced sentence.
Mr. Delligatti then argued that the state offense wasn’t a crime of violence because it could be committed “by way of affirmative acts or omissions.”
The Second Circuit rejected the defense argument, saying it was inconsistent with circuit precedent.
The circuit court held that the argument “carried to its logical—or illogical—conclusion, would preclude courts from recognizing even intentional murder under N.Y. Penal Law ... as a categorically violent crime.”
“Because Delligatti’s conviction for attempted murder in aid of racketeering ... is premised on the predicate crime of attempted murder under New York law, which constitutes a crime of violence as defined in the elements clause of section 924(c), we conclude that Delligatti’s conviction for attempted murder in aid of racketeering ... is necessarily a crime of violence,” the court held.
While Mr. Delligatti’s appeal was pending, the U.S. Court of Appeals for the Third Circuit took up the same issue in a different case, although it denied the government’s request to review a conviction.
Judges from the Third Circuit who didn’t concur in the judgment stated that crimes that can be committed by “total inaction” do not meet the use-of-force requirement even when they cause “serious bodily injury,” because a defendant’s inaction “exerts no physical force at all on the victim.”
The Supreme Court should take up Mr. Delligatti’s appeal because the federal courts of appeal “are intractably divided on the question of whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force,” the petition stated.
Although the Second Circuit’s decision “in this case is correct,” not all circuits agree that “crimes that can be committed by acts of omission, including murder and aggravated assault, satisfy the elements clause of Section 924(c)” or similarly worded clauses in other federal statutes.
The Supreme Court should grant the petition because “the conflict is one of exceptional importance that warrants this Court’s review. And this case presents a suitable vehicle for addressing it,” Ms. Prelogar wrote.
The Supreme Court is expected to hear Delligatti v. United States in its new term that begins in October.
