Case Information
cr In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No.
U NITED S TATES OF A MERICA ,
Appellee ,
D WAYNE B ARRETT , AKA S EALED D EFENDANT 3, AKA T ALL M AN , Defendant Appellant , F AHD H USSAIN , AKA A LI , AKA M OE , T AMESHWAR S INGH , AKA S EALED D EFENDANT 5, S HEA D OUGLAS , J ERMAINE D ORE , AKA S T . K ITTS , AKA B LAQS , T AIJAY T ODD , AKA S EALED D EFENDANT 4, AKA
B IGGS D AMIAN C UNNINGHAM AKA J ABA Defendants .
On Appeal from District Southern District New York
A RGUED : J ANUARY 22, D ECIDED : A UGUST
Before: W INTER R AGGI D RONEY Circuit Judges
________________ United States
On appeal from judgment entered United States District for Southern District New York (Sullivan, J. ) following jury trial, defendant challenged his conviction for using firearms commission violent crimes, see U.S.C. 924(c)(1)(A), one causing death, see 924(j). Defendant argued felonies for firearms offenses—substantive conspiratorial robbery, see 1951—are “crime[s] violence” within meaning 924(c)(3), conclusion he maintained compelled by Sessions Dimaya S. Ct. (2018), Johnson S. (2015). This court rejected argument for explained 2018). Our judgment affirming defendant’s conviction been Court, remanded for further consideration (2019). Upon consideration, concludes for firearms commission must vacated, but his continues warrant affirmance all respects.
A FFIRMED IN PART V ACATED IN PART AND R EMANDED . KELLEY J. SHARKEY, ESQ., Brooklyn, New York, Defendant Appellant . MICHAEL D. MAIMIN, Assistant Attorney (Amy R. Lester, Jessica A. Masella, Karl Metzner, Assistant Attorneys, brief ), Geoffrey Berman, Attorney Southern District New York, New York, New York, Appellee *3 14 2641
United States v. Barrett
R EENA R AGGI Circuit Judge :
In affirmed defendant Dwayne Barrett’s conviction after trial in District Court for Southern District of New York (Richard J. Sullivan, Judge ) multiple counts of conspiratorial and substantive Hobbs Act robbery and related counts of using firearm during and in relation robbery crimes. 18 U.S.C. §§ 924(c), 924(j), 1951; Barrett 903 F.3d 166 (2d 2018). now our judgment and remanded further consideration light (2019). Barrett (2019). Having given that consideration, we vacate Barrett’s Two 924(c) conviction firearm committing Hobbs Act robbery conspiracy—the count conviction Barrett challenges light For stated our opinion, and summary order filed day, see Barrett F. App’x 2018), we Barrett’s all respects and remand resentencing our partial vacatur.
We obliged vacate because precludes us from concluding, did our original opinion, robbery conspiracy qualifies violence. At outset, note there question but committed his co conspirators was violent, even murderous. 170–71, (detailing how “hallmark charged conspiracy,” *4 14 2641
United States v.
with robbers routinely “guns, knives, baseball bats, and their fists,” break victims’ bones, render them unconscious, and “in one case point blank kill a robbery target”). There also question, however, that, Davis , 139 S. Ct. 2319 (2019), the Supreme Court held a could not be identified as a violence under 924(c)—even trial jury—on case specific basis. The decision must made categorically. In so holding, the Supreme Court acknowledged specific approach 924(c), particularly the statute’s residual clause, see 18 U.S.C. 924(c)(3)(B), would avoid both the Sixth Amendment and vagueness concerns have doomed other, similarly worded residual clauses, see v. Davis , S. Ct. at 2327 (citing Sessions v. Dimaya , 138 S. Ct. 1204 (2018); Johnson , S. Ct. (2015)). Nevertheless, Court held text, context, history could support an approach. See at 2327–33.
In Barrett, had relied, at least part, specific approach recognize charged 924(c)(3)(B). F.3d 178–84. decision hardly quixotic. circuit courts have done same. Douglas F.3d (1st 2018), (2019); Ovalles (11th 2018) ( en banc ). And itself, four members Supreme Court reached conclusion. 2336–55 (Kavanaugh, J., with Roberts, C.J., Thomas Alito, JJ., dissenting). Still, four represents minority viewpoint within Court. Insofar instructed us reconsider appeal obliged follow majority’s holding (1) “commands approach,” 2328; (2) form applied *5 14 2641 v. Barrett
residual clauses, i.e. , the “ordinary case” inquiry identified in James U.S. 192, 208 (2007), “§ 924(c)(3)(B) is unconstitutionally vague,” Davis at 2336.
Invited brief the effect of Davis ’s holding on appeal, the prosecution the defense agree that Barrett’s Count for firearm committing must be because identification of that one of violence depends § residual clause definition, which pronounced unconstitutionally vague.
Neither party argues that requires vacatur of Four, Six, or Seven § convictions. This is not surprising. offense each crimes is substantive robbery, which identified § 924(c)(3)(A) applying traditional, only, not issue Hill F.3d 51, 53, (2d 2018), cert. denied (2019). Thus, stated our original opinion, we again convictions Counts Four, Six, Seven. 174. ‐ ‐ Barrett As to Two conviction, however, compels vacatur. The Supreme Court’s unequivocal rejection of a case specific approach § precludes further reliance on murderous violence of robbery conspiracy identify offense as a crime of violence under § 924(c)(3)(B).
Our original Barrett decision was not, however, based only on a now discredited specific application of § 924(c)(3)(B). Our first ground affirming was determination conspiracy could categorically identified of violence reference its elements, thereby avoiding vagueness concerns ordinary ‐ form categorical analysis rejected Johnson, Dimaya 176–77. Barrett ’s elements based conclusion, however, depended both 924(c)(3)(A) 924(c)(3)(B). reasoned where conspiracy’s object (here, robbery) establish it categorical violence 924(c)(3)(A), agreement element categorically establishes “substantial risk” 924(c)(3)(B). did not discuss, much less expressly reject, hybrid approach Davis. This hardly surprising; matter not before it. Nevertheless, gives us reason think longer rely order construing 924(j) incorporate penalty enhancements. Other panels recently reached conclusion, again summarily. Ventura, No. 2675, WL 3814729, *2 Aug. 2018); Nina F. App’x 27, (2d 2018). While urges us reject Young ’s, Ventura ’s, Nina ’s reasoning, persuaded. F. App’x 23. Two. As the government
observes, “[d]espite the obvious logic” court’s elements analysis, “it still necessarily depends” in part § 924(c)(3)(B), which Davis leaves “no longer valid in any form.” Gov’t Supp. Br. at (quoting Davis ’s holding “that § 924(c)(3)(B) is unconstitutionally vague,” and its pronouncement that “a vague law is law at all,” 2336)). conclusion is only reinforced language in Davis referencing “ordinary case” inquiry as required approach applying residual clauses as § 924(c)(3)(B). (observing that “ACCA’s residual clause required judges use form what we’ve called ‘categorical approach’ determine whether an offense qualified violent felony” (emphasis added)); (stating “[f]or years, almost everyone understood § 924(c)(3)(B) require exactly [ordinary case] approach Court found problematic residual clauses ACCA and 16” (emphasis added)). Might Supreme have made “requirement” observations without considering possibility an identify commit categorically violent 924(c)(3)(A) itself categorically violent 924(c)(3)(B)? Perhaps. But possibility does support affirmance here.
If there anything makes clear, it is Court’s substantially similar residual clause definitions violent ACCA, 16(b), unconstitutionally vague, its aversion new arguments attempt avoid conclusion. (rejecting government’s attempt, aftermath Court’s decisions holding ACCA 16(b) residual clauses unconstitutionally vague, ‐ “abandon[] its longstanding position” 924(c)(3)(B) requires ordinary case analysis urge “new case specific approach”).
Thus, however much this court may have thought it possible avoid an unconstitutionally vague application 924(c)(3)(B) —either by consideration conspiracy, or case specific consideration violent nature Barrett’s conspiracy—we understand foreclose both rationales decision. having there construed (1) admit specific application, (2) unconstitutionally vague without qualification when applied categorically, court longer rely any extent what “no law all,” uphold conviction.
Accordingly, reasons stated herein, VACATE Two. At time, stated our earlier opinion summary order, AFFIRM all respects. REMAND district resentencing our partial vacatur.
[1] assume familiarity with our earlier opinion order, which detail facts crimes quote statutes relevant his convictions.
[2] In upholding Seven § 924(j) causing death course violation § 924(c), we summarily rejected his argument that district court erred imposing year consecutive sentence because 924(j) does incorporate penalty enhancements 924(c)(1)(C)(i), or consecutive sentencing mandate 924(c)(1)(D)(ii). Because fourth panel reach conclusion summarily, government asks publish precedential opinion part our summary order construing 924(j) incorporate 924(c)’s sentencing enhancements. Gov’t Supp. Br. 6. grant request here repeating what said our summary order: In sentencing 924(j), district cited Young F. App’x 93–94 2014), non precedential summary