20-1778 Stone v. United States In the United States Court of Appeals For the Second Circuit ________ AUGUST TERM 2021 ARGUED: SEPTEMBER 13, 2021 DECIDED: JUNE 21, 2022 No. 20-1778 DWAYNE STONE, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. ________ Appeal from the United States District Court for the Eastern District of New York. ________ Before: WALKER, NARDINI, and MENASHI, Circuit Judges. ________ Following a jury trial in the United States District Court for the Eastern District of New York, Dwayne Stone was convicted of (1) conspiracy to commit second-degree murder in aid of racketeering, (2) second-degree murder in aid of racketeering, and (3) using a firearm during and in relation to a crime of violence, in violation of 18 2 No. 20-1778 U.S.C. § 924(c). Eight years later, Stone filed a petition for habeas corpus under 28 U.S.C. § 2255, contending that his § 924(c) conviction and its accompanying sentence were unlawful. The district court (Glasser, J.) denied the petition but granted a certificate of appealability. On appeal, Stone argues that his § 924(c) conviction was unlawful because (1) it was possibly predicated on conspiracy to commit murder, an offense that no longer qualifies as a crime of violence, and (2) even if it were predicated on substantive murder, that offense also does not qualify as a crime of violence. We find no merit in these challenges. Accordingly, we AFFIRM the judgment of the district court. ________ DANIEL HABIB, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Petitioner- Appellant Dwayne Stone NICHOLAS AXELROD (Amy Busa, Ellen H. Sise, on the brief), Assistant United States Attorneys, for Mark J. Lesko, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Respondent-Appellee United States of America ________ JOHN M. WALKER, JR., Circuit Judge: Following a jury trial in the United States District Court for the Eastern District of New York, Dwayne Stone was convicted of (1) conspiracy to commit second-degree murder in aid of racketeering, (2) second-degree murder in aid of racketeering, and (3) using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Eight years later, Stone filed a petition for habeas corpus under 28 U.S.C. § 2255, contending that his § 924(c) conviction and its accompanying sentence were unlawful. The district court 3 No. 20-1778 (Glasser, J.) denied the petition but granted a certificate of appealability. On appeal, Stone argues that his § 924(c) conviction was unlawful because (1) it was possibly predicated on conspiracy to commit murder, an offense that no longer qualifies as a crime of violence, and (2) even if it were predicated on substantive murder, that offense also does not qualify as a crime of violence. We find no merit in these challenges. Accordingly, we AFFIRM the judgment of the district court. BACKGROUND In 2007, Stone was indicted for multiple offenses stemming from his affiliation with the “Folk Nation” gang operating in Brooklyn, New York. 1 As relevant …
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