United States v. Barrett
903 F.3d 166
| 2d Cir. | 2018Background
- Barrett was convicted after a jury trial in S.D.N.Y. of Hobbs Act robbery conspiracy, multiple substantive Hobbs Act robberies, and using firearms in relation to those offenses (including a §924(j) killing); sentenced to 90 years aggregate.
- The charged Crew committed multiple armed, violent robberies (beatings, knifepoint and gunpoint threats, a murder, and disposal of the murder weapon), with Barrett participating as robber and driver in several incidents.
- On appeal Barrett argued his §924(c) and §924(j) firearm convictions must be vacated because the predicate Hobbs Act offenses (substantive and conspiratorial) are not “crimes of violence” under 18 U.S.C. §924(c)(3), relying on Dimaya and Johnson.
- He raised additional evidentiary and sentencing challenges; the opinion resolves the §924(c) challenge addressed here.
- The Second Circuit affirmed: substantive Hobbs Act robbery is a categorical crime of violence under §924(c)(3)(A) (per United States v. Hill), conspiracy to commit Hobbs Act robbery is also a crime of violence, and any failure to submit a §924(c)(3)(B) finding to the jury was harmless given the overwhelming record of violence.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Barrett) | Held |
|---|---|---|---|
| Whether substantive Hobbs Act robbery is a "crime of violence" under §924(c)(3)(A) | Hobbs Act robbery necessarily includes use/threat of physical force and thus qualifies | Hobbs Act's "fear of injury" language could permit non-physical coercion, so it is not categorically violent | Substantive Hobbs Act robbery is a categorical crime of violence under §924(c)(3)(A) (affirmed) |
| Whether conspiracy to commit Hobbs Act robbery is a "crime of violence" under §924(c) | A conspiracy to commit a categorically violent offense itself poses a substantial risk and qualifies | Conspiracy cannot be treated as categorically violent post-Dimaya/Johnson | Conspiracy is a crime of violence: precedent treating conspiracies as violent applies; affirmed |
| Whether §924(c)(3)(B) (the residual clause) is unconstitutionally vague after Dimaya/Johnson and whether a conduct-specific approach is permissible | §924(c)(3)(B) can be construed to permit a conduct-specific, jury-resolved inquiry for a pending prosecution, avoiding vagueness and Sixth Amendment problems | Barrett argues the residual clause is vague under Dimaya/Johnson and forecloses applying it to his case | §924(c)(3)(B) can be applied on a conduct-specific basis by the trial jury for a pending §924(c) prosecution, avoiding the constitutional defects identified in Dimaya/Johnson |
| Whether the district court’s failure to instruct the jury to make a §924(c)(3)(B) finding was reversible error | Any omission was harmless because the evidence of beatings, shootings, and murder made it irrational to find the conspiracy was not a violent crime | Barrett contends omission was error warranting reversal | Omission was harmless beyond a reasonable doubt; conviction on Count Two is affirmed |
Key Cases Cited
- United States v. Hill, 890 F.3d 51 (2d Cir. 2018) (holds substantive Hobbs Act robbery is a categorical crime of violence under §924(c)(3)(A))
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidates a similar residual clause as unconstitutionally vague when applied categorically to prior convictions)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause unconstitutional for vagueness)
- Neder v. United States, 527 U.S. 1 (1999) (omitted jury-element errors are subject to harmless-error review)
- Taylor v. United States, 495 U.S. 575 (1990) (adopts categorical approach for determining whether prior convictions qualify under federal definitions)
- United States v. Patino, 962 F.2d 263 (2d Cir. 1992) (recognizes conspiracy to commit violent crime can itself be a crime of violence)
- United States v. Chimurenga, 760 F.2d 400 (2d Cir. 1985) (explains rationale that conspiracy increases likelihood objective will be achieved, supporting classification as substantial risk of violence)