PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 15-1609
                      ____________

            UNITED STATES OF AMERICA

                            v.

                   RONALD GALATI,

                                   Appellant


      On Appeal from the United States District Court
                for the District of New Jersey
         (D. C. Criminal No. 1-14-cr-00173-001)
      District Judge: Honorable Joseph H. Rodriguez

               Argued on April 28, 2016
    Before: MCKEE, Chief Judge, JORDAN and ROTH,
                    Circuit Judges

            (Opinion filed: December 19, 2016)


 Honorable Judge McKee was Chief Judge at the time this
appeal was argued. Judge McKee completed this term as
Chief Judge on September 30, 2016.
Brett G. Sweitzer, Esquire         (Argued)
Federal Community Defender Office for
the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

                     Counsel for Appellant



Mark E. Coyne, Esquire            (Argued)
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
                     Counsel for Appellee



                         O P I N I ON



ROTH, Circuit Judge

       After an eight day trial, a jury found that Ronald Galati
had participated in a murder-for-hire scheme that culminated
with the intended victim, Andrew Tuono, being shot in his
hand, pelvis, and lower back. Galati was charged and
convicted under 18 U.S.C. §§ 924(c) and 924(o) for aiding
and abetting the use of a firearm during and related to a crime




                               2
of violence and conspiring to do the same. Galati appeals
these convictions and asks us to find that using interstate
commerce facilities in the commission of a murder-for-hire,
in violation of 18 U.S.C. § 1958, is not a “crime of violence.”
Following our decision in United States v. Robinson,1 we will
look at all of Galati’s contemporaneous convictions in
determining whether or not he has aided and abetted the
discharge of a firearm during a crime of violence. Based on
the facts found by the jury, Galati committed a crime of
violence. Accordingly, we will affirm his convictions.

                                    I.

       On November 30, 2013, two masked gunmen fired
shots outside the Atlantic City home of Andrew Tuono. Both
Tuono and Tiffany Galati, Tuono’s girlfriend and Ronald
Galati’s daughter, were present at the time of the shooting.
While Tiffany was unharmed, Tuono was struck in his hand,
pelvis, and lower back. As the gunmen fled, they were
quickly apprehended by police. After their apprehension, the
gunmen claimed they had been hired Ronald Galati to kill
Tuono. On April 2, 2014, a grand jury in the District of New
Jersey returned an indictment charging Galati and Jerome
Johnson with one count of soliciting murder for hire resulting
in personal injury, in violation of 18 U.S.C. § 1958; one count
of causing a firearm to be discharged in the commission of a
crime of violence and aiding and abetting the same, in
violation of 18 U.S.C. §§ 2 and 924(c); and two counts of
conspiring to commit the aforementioned offenses, in
violation of 18 U.S.C. §§ 924(o) and 1958.


1
    --- F.3d. --- (3d Cir. 2016).




                                    3
        At trial, Johnson and the two gunmen, who had pled
guilty, testified against Galati. According to the gunmen,
Galati provided information as to where Tuono could be
found and promised to pay if he were killed. Johnson
testified that Galati telephoned Johnson on the day of the
planned murder to tell him that Tuono was in Atlantic City.
Johnson promptly drove the gunmen from Philadelphia to
Atlantic City.

       The jury returned a verdict finding Galati guilty on all
counts. Galati appealed.

                              II.

       The only issue Galati has raised on appeal is whether
he was wrongly convicted under 18 U.S.C. § 924(c) of aiding
and abetting the discharge of a firearm during a crime of
violence and under 18 U.S.C. § 924(o) of conspiring to do the
same.2 The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. §
1291.

                             III.

      Galati’s conviction under 18 U.S.C. § 924(c) required
a showing that he aided and abetted the knowing and willful

2
  In his reply brief, Galati claims that the District Court
erroneously sentenced him to an uncharged, aggravated count
of violating 18 U.S.C. § 1958. Because this was not raised in
Galati’s first brief, we consider the issue waived, and we note
that even if the issue had been properly raised, the alleged
error did not affect Galati’s aggregate sentence.




                              4
discharge of a firearm during and in relation to a “crime of
violence.”     He now advances the argument that his
participation in a murder-for-hire scheme in violation of 18
U.S.C. § 1958 is not a crime of violence and therefore his
conviction under § 924(c) cannot stand. Because Galati did
not raise any objections below, we will review for plain
error.3

        Section 924(c) offers two alternative definitions for
“crime of violence.” The first definition encompasses crimes
that have “the use, attempted use, or threatened use of
physical force against the person or property of another” as
one of their elements (the “elements clause”).4 The second
definition covers crimes that involve “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”).5 Galati argues that violation of 18 U.S.C.
§ 1958 is not a crime of violence under the elements clause
and that the residual clause is void for vagueness in light of
the Supreme Court’s decision in Johnson v. United States.6

       We recently explored the boundaries of what
constitutes a “crime of violence” under § 924(c) in United
States v. Robinson.7      Robinson involved a defendant
convicted of Hobbs Act robbery, in violation of 18 U.S.C. §

3
  United States v. Saada, 212 F.3d 210, 223 (3d Cir. 2000).
4
  18 U.S.C. § 924(c)(3)(A).
5
  Id. § 924(c)(3)(B).
6
   135 S. Ct. 2551 (2015) (invalidating a clause defining
“violent felony” under the Armed Career Criminal Act, 18
U.S.C. § 924(e)(1)).
7
  --- F.3d --- (3d Cir. 2016).




                              5
1951, who had concurrently been charged with brandishing a
firearm during a crime of violence under § 924(c). Robinson
argued, as Galati has here, both that his charged offense was
not a crime of violence under the elements clause and that the
residual clause was void for vagueness. In affirming the
District Court’s conviction, we held that whether a particular
crime is a “crime of violence” under the elements clause of §
924(c) depends on the findings of the jury both as to the
predicate offense and the contemporaneous § 924(c) offense.
Because a jury had found beyond a reasonable doubt both that
Robinson had committed Hobbs Act robbery—an element of
which is the use of “actual or threatened force, or violence, or
fear of injury . . . to person or property” 8—and that Robinson
had brandished a firearm in the course of committing Hobbs
Act robbery, we held that Robinson had properly been found
to have committed a crime of violence. Accordingly, we
declined to reach the defendant’s challenge to the validity of
the residual clause.

       Galati’s case bears striking resemblance to Robinson’s.
Both defendants argued that the minimum conduct prohibited
by their offenses did not have “the use, attempted use, or
threatened use of physical force against the person or property
of another” as an element. However, in both cases, a jury
determined that a firearm had been used in the commission of
the offense, and in both cases the use of a firearm indicates
the use, attempted use, or threatened use of physical force in
the commission of the offense. Thus, on the facts found by
the jury, we agree with the District Court that Galati
committed a “crime of violence.”


8
    18 U.S.C. § 1951(b)(1).




                               6
       As we stated in Robinson, determining whether a
particular crime is a crime of violence under § 924(c) requires
us to look at all the offenses before the jury to the extent that
these offenses shed light on whether physical force was used,
attempted, or threatened in committing the predicate offense.
The jury found that Galati had either caused another to
knowingly or intentionally travel in interstate commerce or
use any facility of interstate commerce with the intention of
committing murder-for-hire, or had done so himself. Further,
the jury found that this activity resulted in personal injury to
Andrew Tuono.

       While Galati claims that the element of personal injury
was not charged in his indictment, this is irrelevant for the
purposes of determining whether or not he has committed a
crime of violence. As we have previously observed,
prosecution under § 924(c) requires that the government
prove the defendant committed a qualifying offense but does
not require that the defendant be charged or convicted of such
an offense.9 Whether the matter was properly charged or not,
the jury in this case found that Galati’s participation in the
murder-for-hire scheme resulted in personal injury. Finally,
the jury concluded that Galati aided and abetted the discharge
of a firearm in connection with the aforementioned activity.
Thus, the question before us is not whether violation of 18
U.S.C. § 1958 is a crime of violence, but whether violation of
18 U.S.C. § 1958 that results in personal injury and during
which a firearm is discharged is a crime of violence. The
discharge of a firearm, coupled with resulting personal injury,
qualifies as a use of physical force. Therefore, we hold that
Galati committed a crime of violence as defined in 18 U.S.C.

9
    United States v. Lake, 150 F.3d 269, 275 (3d Cir. 1998).




                                7
§ 924(c)(3)(A), and we decline to reach his challenge to the
residual clause.10

                              IV.

       Galati’s effort to cast his involvement in a scheme that
ended with a man being shot as lacking the use of physical
force is creative, but his arguments defy our recent precedent.
Accordingly, we will affirm the convictions.




10
   Appellant argues that our recent decision in Baptiste v.
Attorney Gen., No. 14-4476, 2016 WL 6595943, at *7 (3d
Cir. Nov. 8, 2016) forecloses our application of 18 U.S.C. §
924(c)’s residual clause. Although we do not rely on the
residual clause to resolve this case, we note that Baptise is not
necessarily applicable here. In Baptiste, the Court considered
whether the defendant’s prior state conviction constituted a
predicate violent offense. Our inquiry here, however, asks
whether a federal offense that was contemporaneously tried
with § 924(c) possession may properly serve as a predicate
offense. Resolution here is distinguishable because it does
not require consideration of a prior state conviction.




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