UNITED STATES OF AMERICA, Aрpellee, v. DWAYNE BARRETT, AKA SEALED DEFENDANT 3, AKA TALL MAN, Defendant-Appellant, FAHD HUSSAIN, AKA SEALED DEFENDANT 1, AKA ALI, AKA MOE, JERMAINE DORE, AKA SEALED DEFENDANT 2, AKA ST. KITTS, AKA BLAQS, TAIJAY TODD, AKA SEALED DEFENDANT 4, AKA BIGGS, TAMESHWAR SINGH, AKA SEALED DEFENDANT 5, AKA JERRY, SHEA DOUGLAS, DAMIAN CUNNINGHAM, AKA SEALED DEFENDANT 1, AKA JABA, Defendants.
No. 21-1379
United States Court of Appeals for the Second Circuit
DECIDED: MAY 15, 2024
AUGUST TERM 2023; ARGUED: SEPTEMBER 11, 2023
On appeal of an amended judgment entered on remand in the United States District Court for the Southern District of New York (Sullivan, J.), defendant Dwayne Barrett argues that (1) his initial appellate counsel was constitutionally ineffective in failing to mount a sufficiency challenge to his conviction on one count of substantive Hobbs Act robbery, and related firearms and murder counts, on the ground that the evidence demonstrated only attempted robbery; (2) in any event, after United States v. Taylor, 596 U.S. 845 (2022), Hobbs Act robbery cannot be identified as a categorical crime of violence; (3) his 50-year prison sentence is procedurally unreasonable based on the district court‘s (a) erroneous application of
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
MATTHEW B. LARSEN, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.
MICHAEL D. MAIMIN, Assistant United States Attorney (Hagan Scotten, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
REENA RAGGI, Circuit Judge:
Defendant Dwayne Barrett comes before this court for the third time to challenge a judgment of conviction entered in the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) after a jury trial at which Barrett was found guilty on multiple counts of conspiratorial and substantive Hobbs Act robbery; the use of firearms during such robberies; and, in one robbery, the murder of a robbery victim. See
For the reasons stated herein, this court rejects all of Barrett‘s arguments as without merit except for his consecutive
BACKGROUND
I. The December 12, 2011 Robbery, Firearms Use, and Murder
Between August 2011 and January 2012, Dwayne Barrett and various confederates “commit[ted] a series of frequently armed, and invariably violent, robberies.” Barrett I, 903 F.3d at 170. We assume familiarity with Barrett I‘s discussion of these robberies and here detail only those facts necessary to resolve this appeal.
One robbery, the first of two committed by Barrett and his confederates on December 12, 2011, is at the core of Barrett‘s claim that appellate counsel was constitutionally ineffective in failing to mount a sufficiency challenge to his conviction on Counts Five, Six, and Seven. In recounting facts pertinent tо that robbery, we necessarily view the evidence in the light most favorable to the government. See, e.g., United States v. Avenatti, 81 F.4th 171, 175 (2d Cir. 2023).
Trial evidence showed that on the morning of December 12, 2011, Barrett and two confederates, Jermaine Dore and Taijay Todd, used Barrett‘s Mercedes Benz to follow a minivan operated by livery driver Zhao Qiang Liang from a motel in the Bronx to a location in Mount Vernon, New York. There, the van‘s passengers, Gamar Dafalla and Jamal Abdulla, sold a waiting customer over one hundred cartons of untaxed cigarettes for $10,000 in cash.
When the transaction concluded, the minivan and its occupants travelled to a site a few blocks away where Dafalla counted the sales proceeds before giving $200 to his associate, Abdulla. Meanwhile, Barrett‘s Mercedes had followed the minivan to where it had stopped. While Barrett remained in the car, Dore and Todd approached the van. Opening the van‘s driver-side door, Dore pressed a gun against Zhao‘s head while, at the same time, Todd
Soon after, Abdulla reported the robbery to the police. Later that morning, officers located Zhao‘s minivan, its motor still running, abandoned on a quiet Bronx street approximately a mile away from the events just described. Inside, they found Dafalla‘s dead body and a stack of cash under a seat.
Within hоurs, Barrett joined Dore and another confederate in robbing a tobacco salesman of approximately $15,000. During that robbery, while Dore again confronted the victim with a gun, Barrett threatened the man‘s life with a knife, telling him not to move or “I will murder you.” Trial Tr. 685; see Barrett I, 903 F.3d at 171.
Thereafter, Barrett and Dore, each wearing latex gloves, wiped down Barrett‘s Mercedes with cleaning solution. After Dore‘s arrest later that same day on unrelated charges, Barrett went to the home of Dore‘s girlfriend to dispose of the gun used to kill Dafalla. Barrett and another confederate, “Duffel,” retrieved the gun and drove to the West Side Highway, where “Duffel” threw it into the Hudson River.
II. Indictment and Initial Sentencing
In the operative June 25, 2012 superseding indictment, the grand jury charged Barrett with conspiracy to commit Hobbs Act robbery,
At Barrett‘s July 16, 2014 sentencing, the district court determined that the law mandated a total minimum term of 55 years’ incarceration: five years for the
ruling as to Count Seven, the district court relied on a summary decision of this court, which stated that
III. First Appeal
On initial appeal, Barrett‘s counsel argued that (1) the district court erred in failing to suppress or in wrongfully admitting certain evidence; (2) his Count Seven
This court rejected Barrett‘s third counseled argument in a published opinion, see Barrett I, 903 F.3d at 169-70 (holding conspiratorial and substantive Hobbs Act robbery to be crimes of violence), and summarily rejected all remaining counseled and pro se arguments, see United States v. Barrett, 750 F. App‘x at 21. The court denied Barrett‘s subsequent requests for panel or en banc rehearing.
Present counsel then joined appellate counsel in petitioning thе Supreme Court for a writ of certiorari to review Barrett‘s challenges to those counts of conviction dependent on the meaning of “crime of violence” under
On remand, where Barrett was again represented by both appellate and present counsel, this court vacated Barrett‘s Count Two
IV. Resentencing
At Barrett‘s May 20, 2021 resentencing, the district court noted that, after Barrett‘s initial 2014 sentencing, Congress enacted the First Step Act of 2018,5 which, among other things, altered certain mandated prison terms set forth in
same time, the district court rejected Barrett‘s argument that the first-degree murder Sentencing Guideline, see
After considering all parties’ submissions and arguments, the district court sentenced Barrett to concurrent 20-year prison terms on each Hobbs Act robbery count (i.e., Counts One, Three, and Five), with a consecutive minimum five-year prison term on Count Four and a consecutive above-minimum 25-year term on Count Seven (with which it again deemed Count Six to have merged), for a total incarceratory sentence of 50 years.
In explaining its decision to sentence Barrett to a total prison term 40 years lower than its original 90-year sentence, the district court noted changes not only in relevant sentencing law but also in Barrett, specifically, his positive prison record and acceptance of responsibility. See, e.g., Resent‘g Tr. 51 (explaining that Barrett‘s “letter reflects . . . mature regret about the things [he] did and the harms [he] caused“); id. at 52–53 (“[I]t‘s a big reduction from 90, and it‘s largely as a result of what you‘ve done in the last seven years.“). At the same time, however, the court explained as follows:
There‘s just a limit . . . to how relevant [these mitigating factors] can be in a case like this . . . [where] crimes over such a long period of time involved such brutal violence, violence perpetrated or threatened against a man in front of his children in his home, violence on the street, violence that resulted in a man getting killed.
Id. at 50.9 In these circumstances,
the harms and the crimes themselves do require, not as a matter of the sentencing guidelines, not as a matter of mandatory minimums, but just as a matter of simple justice, they do require a significant sentence.
Id. at 51. The district court continued,
this was a serious crime. That‘s the reason why I‘m imposing a sentence of 50 years, which is . . . a long sentence, because these crimes were as brutal as any I‘ve ever seen. They persisted over such a long period of time after you had had prior convictions and continued even after the murder of a man during the course of a robbery. That does require punishment . . . . That‘s what drives this sentence.
Id. at 54. Focusing specifically on the Count Seven murder, the district court explained that, in its view,
to impose a sentence of less than 25 years on Count Seven would be, I think,
to disrespect the victim, Mr. Dafalla, and his family.
Id. at 52.
Nevertheless, the district court urged Barrett to continue working for self-improvement in prison. It observed,
that sometimes the law changes. You‘ve seen it. You‘ve benefited from it, and it could change again. It‘s not going to get worse for yоu, I doubt, unless you commit more crimes even in jail, but it may get better. You may even get another look down the road. You never know.
Id. at 53.
Following entry of the amended 2021 judgment, appellate counsel timely filed this notice of appeal, whereupon she then withdrew, leaving only present counsel representing Barrett.
DISCUSSION
I. Ineffective Assistance of Counsel
Barrett argues that appellate counsel was constitutionally ineffective in failing to argue that the trial evidence was legally insufficient to prove him guilty of the December 12, 2011 substantive Hobbs Act robbery charged in Count Five. Barrett maintains that it should have been obvious to counsel that the evidence admitted only a finding of attempted Hobbs Act robbery because, as a result of Dafalla throwing most of the “$10,000 out of the minivan and his partner, Abdulla, recover[ing] it,” there was never any actual “taking or obtaining” of that money by the robbers. Appellant Br. at 27 (quoting
At the outset, we note that Barrett did not raise this specific sufficiency argument in the district court. Instead, in moving for acquittal pursuant to Fed. R. Crim. P. 29(a), trial counsel generally argued that “the government has not met [its] burden of proof at this juncture in respect to the crimes charged in the indictment.” Trial Tr. 1717. Because this court has held that a “defendant need not specify the ground of [a Rule 29] motion in order to preserve a sufficiency claim for appeal,” United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983); accord United States v. Hoy, 137 F.3d 726, 729 (2d Cir. 1998), we conclude that the sufficiency challenge now urged by Barrett was adequately preserved for his appellate counsel to have raised it on direct appeal. Nevertheless, we reject as meritless Barrett‘s claim that appellate counsel was constitutionally ineffective in failing to raise the urged sufficiency challenge.
A. Standard of Review
“The Sixth Amendment guarantees the right to effective representation on direct appeal.” Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (citing Evitts v. Lucey, 469 U.S. 387, 396–97 (1985)). To succeed on a claim of ineffective appellate counsel, a defendant must satisfy both prongs of the test stated in Strickland v. Washington, 466 U.S. 668 (1984), i.e., he “must show that (1) counsel‘s performance was objectively deficient,
In most cases, this court prefers for ineffective assistance claims to be raised in a collateral motion for relief under
At the first step of Strickland analysis, we indulge “a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance, viewing the actions in light of the law and circumstances confronting counsel at the time.” Harrington v. United States, 689 F.3d at 129 (internal quotation marks and citations omitted). To overcome this presumption, a defendant bears a “heavy” burden because “[t]he determinative question . . . is not whether counsel ‘deviated from best practices or most common custom,’ but whether his ‘representation amounted to incompetence under prevailing professional norms.‘” Id. at 129–30 (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011) (observing that “[s]urmounting Strickland‘s high bar is never an easy task” (internal quotation marks omitted))).
As applied to appellate counsel, this standаrd imposes no duty “to raise every ‘colorable’ claim.” Jones v. Barnes, 463 U.S. 745, 754 (1983) (rejecting claim that counsel ineffectively appealed multi-count conviction by briefing only three of seven potential issues discussed with defendant). Indeed, the Supreme Court has observed that a competent appellate advocate must “examine the record with a view to selecting the most promising issues for review” because “[a] brief that raises every colorable issue runs the risk of burying good arguments in a verbal mound made up of strong and weak contentions.” Id. at 752–53. Thus, to demonstrate constitutional incompetence at the first step of Strickland analysis, Barrett must show that appellate counsel failed to raise a “significant and obvious” sufficiency challenge to his Hobbs Act robbery conviction “while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (“Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” (internal quotation marks omitted)).
Even if Barrett could make that showing, at Strickland‘s second step, he must demonstrate that he was prejudiced by counsel‘s failure, i.e., he must show a “reasonable probability that [the omitted challenge] would have succeeded.” Lynch v. Dolce, 789 F.3d at 311. Where, as here, the omitted challenge pertains to the sufficiency of the evidence, this second-step burden is particularly heavy because, even though our review is de novo, we will not find probable success if, “crediting every inference that could have been drawn in the government‘s favor and viewing the evidence in the light most favorable to the prosecution, ‘any rational trier of fact
Applying these deferential standards of review, we conclude that Barrett fails to carry his burden at either step of Strickland analysis. He was not denied effective assistance of appellate counsel.
B. Strickland Step One
1. Counsel Pursued Strong Arguments that Significantly Benefited Barrett
Barrett confronts a significant hurdle at the first step of Strickland analysis because appellate counsel pursued strong arguments that proved successful in securing significant benefits.
On direct appeal, Barrett‘s counsel argued, inter alia, that Hobbs Act conspiracy was not a categorical crime of violence and, thus, not a viable predicate for his Count Two
On that remand, appellate counsel‘s arguments were successful in securing not only vacatur of Barrett‘s conviction on Count Two, but also a 40-year reduction in the term of incarceration originally imposed. See supra at 11–13. In granting that relief, the district court commended appellate counsel as “a wonderful lawyer [who] has made terrific arguments and really [did] a masterful job of representing Mr. Barrett.” Resent‘g Tr. 52. This record hardly bespeaks the pursuit of weak arguments reflective of ineffective representation.
Indeed, appellate counsel‘s achievement of a significant sentence reduction for Barrett is all the more notable given that it was by no means inevitable. In United States v. Davis, the Supreme Court specifically stated that “defendants whose
Thus, Barrett cannot show that appellate counsel pursued clearly weak arguments on appeal.
2. The Urged Insufficiency Argument Is Not Strong
Barrett also cannot show that his urged insufficiency argument was obviously and significantly stronger than the arguments appellate counsel successfully pursued.
a. Barrett I
Barrett attempts to make that showing by citing a heading in the Factual Background section of Barrett I, which reads: “Dafalla Attempted Robbery and Murder.” Barrett I, 903 F.3d at 171. He submits that this demonstrates this court‘s recognition that the trial evidence as to Count Five proved only attempted, not completed, robbery. He is mistaken.
In Barrett I, this court was not presented with a sufficiency challenge to the evidence of substantive Hobbs Act robbery charged in Count Five. The quoted heading thus represents no legal conclusion on that point. It serves only as a signpost to introduce a summary of facts pertinent to crimes charged in Counts Five, Six, and Seven. In that context, the word “attempted” was used—perhaps inartfully—to preview facts showing that the robbers’ initial acquisition of the entirety of the cigarette sale proceeds at gunpoint was thereafter thwarted in part when Dafalla managed to throw much of the proceeds out the van window, an action for which he paid with his life. But nowhere in Barrett I did this court hold that the evidence was insufficient as a matter of law to permit a reasonable jury to find that, before Dafalla so acted, Barrett and his confederates had effected a robbery of the cigarette sale proceeds or that, even after Dafalla acted, they continued the robbery of that part of the proceeds still in the vehicle. Indeed, Barrett‘s attempt to read the Barrett I heading as suggesting a holding on insufficiency of the evidence is foreclosed by this court‘s decretal language in Barrett I and Barrett II, which unqualifiedly affirmed his Count Five conviction for substantive robbery, as well as his Count Six and Seven firearms and murder convictions fоr which that robbery served as the violent-crime predicate. See Barrett I, 903 F.3d at 185; Barrett II, 937 F.3d at 130.
Thus, Barrett cannot rely on Barrett I to demonstrate the strength of his sufficiency challenge at Strickland step one.
b. The Taking or Obtaining of Property
Hobbs Act robbery requires proof, inter alia, of an “unlawful taking or obtaining of personal property.”
In criminal law, the word “taking” means “[t]he act of laying hold upon an article, with or without removing the same. It implies a transfer of possession, dominion, or control.” BLACK‘S LAW DICTIONARY 1701 (3d ed. 1933); accord BLACK‘S LAW DICTIONARY 1755 (11th ed. 2019) (defining “taking” as “[t]he act of seizing an article, with or without removing it, but with an implicit transfer of possession or control“); see also 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW (“LAFAVE“) § 19.3 (3d ed. 2017) (stating as to “larceny,” “taking occurs when the offender secures dominion over the property“).13 Here, evidence showed that Barrett‘s confederates held guns at two victims’ heads when demanding the cigarette sale proceeds, with the result that one victim promptly turned over approximately $200 in such proceeds. That, by itself, was sufficient to permit a jury to find the taking of property required for robbery. See
Still further evidence showed that the robbers then forcibly ejected these two victims from the van before themselves taking possession of that vehicle and driving off with the demanded money and Dafalla inside. Viewed in the light most favorable to the government, this evidence would have permitted a reasonable jury to find that, at the moment the armed robbers did so, they had effectively taken control of the van, all the money contained therein, and Dafalla. While Barrett might have argued that Dafalla‘s ability to throw money out the van window raised a reasonable doubt as to whether the robbers obtained control over this property, the jury was not compelled to reach that conclusion. Evidence that the robbers promptly shot Dafalla dead when they realized what he had done would have permitted the jury to conclude that Dafalla was very much mistaken if he thought that he retained any control over money in the van after the robbers took possession.
Thus, appellate counsel cannot be said to have overlooked an obviously strong sufficiency challenge to the government‘s proof of a taking.
c. Specific Intent and Asportation
In urging otherwise, Barrett maintains that a jury could not find the taking or obtaining of property necessary for robbery in the absence of evidence showing that the robbers acted with the specific intent to keep the property permanently and successfully carried the property to a place of safety. Appellate counsel cannot be faulted for failing to so argue because Hobbs Act robbery does not require proof of specific intent or asportation.
Barrett‘s urged specific intent and asportation requirements for robbery derive from common law. See generally 3 LAFAVE § 20.3.14 But common law is not dispositive here because Hobbs Act robbery is a statutorily defined, not a common law, crime. See
The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to
his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
In urging otherwise, Barrett suggests that specific intent and asportation are implicit in the Hobbs Act‘s use of the undefined words “taking” and “obtaining.” We are not persuaded.
At common law, “taking” is an element of robbery distinct from both intent and carrying away. See supra at 26 n.14. This undermines Barrett‘s claim that “taking” in the Hobbs Act means both “taking” and “carrying away.” Appellant‘s Reply Br. at 3 (internal quotation marks omitted). Moreover, the Supreme Court, in focusing on the text of the federal bank robbery statute,
As for specific intent, such a requirement goes to the mens rea part of a crime. A requirement that property be taken or obtained goes to the actus reus part of the crime. Thus, even if we were to assume arguendo that, in the Hobbs Act, Congress employed the words “taking” and “obtaining” as they are understood at common law, that does not mean that Congress intended for those actus reus elements to convey a specific mens rea requirement.
No different conclusion is compelled here by United States v. Nedley, 255 F.2d 350 (3d Cir. 1958), on which Barrett relies. In that case, the Third Circuit held that “‘[r]obbery’ under the Hobbs Act[] is common law robbery” and, thus, requires proof of (1) “forcible taking and carrying away” and (2) “intent[] to permanently keep the property so taken.” Id. at 357 (emphasis added). Nedley, of course, is not controlling authority in this circuit. But more, it is no longer controlling authority even in the Third Circuit. Last year, in United States v. Stevens, 70 F.4th 653 (3d Cir. 2023), that court specifically rejected Nedley‘s reliance on the “common law to import two additional elements” into the Hobbs Act‘s “statutory definition of ‘robbery,‘” id. at 655. The elements rejected in Stevens are those Barrett unsuccessfully urges here: (1) “a specific intent to steal and to permanently deprive the owner or possessor of his property” and (2) “not merely the taking but also a carrying away of that property.” Id. (internal quotation marks omitted).16
Moreover, even without defining “robbery,” Congress has demonstrated its ability to include or exclude specific intent and asportation requirements in robbery statutes where it deems that warranted. In addressing bank robbery, Congress did not require specific intent or asportation when bank property is taken “by force and violence, or by intimidation.”
This reinforces the conclusion we draw from the text of the Hobbs Act. Because Congress there provided a statutory definition for robbery that prohibits taking “by means of actual or threatened force, or violence, or fear of injury,”
While this court has previously stated as much in a summary order, see United States v. Tobias, 33 F. App‘x 547, 549 (2d Cir. 2002) (stating that Hоbbs Act robbery “necessarily implies knowing and willful conduct“), some of our sister circuits have so held in precedential opinions. See United States v. García-Ortiz, 904 F.3d 102, 108 (1st Cir. 2018) (holding that Hobbs Act robbery provides for “implicit mens rea element of general intent—or knowledge—as to the actus reus of the offense” (internal quotation marks omitted)); United States v. Stevens, 70 F.4th at 660 [3d Cir.] (holding “Hobbs Act robbery is a general-intent crime“); United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002) (“We have held that the only mens rea required for a Hobbs Act robbery conviction is that the offense be committed knowingly.” (internal quotation marks omitted)). We join them today in here holding that to prove a defendant guilty of Hobbs Act robbery, it is sufficient for the government to show that, in taking or obtaining property in the manner proscribed by that statute, a defendant acted knowingly and voluntarily, i.e., not mistakenly, accidentally, or merely negligently; and that he did so willfully, i.e., with a general awareness of the unlawfulness of his acts. See LEONARD B. SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS: CRIMINAL ¶ 3A.01 (2011) (“Scienter” instruction); id. ¶ 50.01, Instruction 50-3 (including knowledge requirement in elements of Hobbs Act robbery). That is what the district court charged here, and Barrett does not challenge its Hobbs Act robbery instruction or the sufficiency of the evidence to prove such general intent.
Thus, because Hobbs Act robbery does not require proof of either specific intent or asportation, Barrett cannot show that appellate counsel overlooked an obviously strong sufficiency argument on that ground.
C. Strickland Step Two
Barrett‘s urged sufficiency challenge fails to establish ineffective assistance for a second reason: even if Hobbs Act robbery required proof of specific intent and asportation—which it does not—the evidence here was sufficient to permit a reasonable jury to find both. Thus, Barrett cannot show that he was prejudiced by appellate counsel‘s failure to argue insufficiency.
Specifically, the evidence here was sufficient to permit a reasonable jury to conclude that, at the moment Barrett‘s armed confederates first drove off in the van with the cigarette sale proceеds inside, their intent was to take that money permanently. Indeed, Barrett does not suggest otherwise. The fact that Dafalla‘s subsequent actions frustrated that intent does not mean that the robbers did not act with that intent upon the initial taking. Similarly, the fact that after killing Dafalla, the
As for asportation, Barrett misstates that requirement to demand that property be carried away to a place of safety. In fact, asportation requires only “some slight movement away” of the stolen property. 3 LAFAVE § 19.3; see WHARTON‘S CRIMINAL LAW § 26:15 (“[A]ny carrying away movement, however slight, is sufficient.“); United States v. Barlow, 470 F.2d 1245, 1250 (D.C. Cir. 1972) (stating that asportation is satisfied by defendant removing taken property “slightest distance” from original location); Smith v. United States, 291 F.2d 220, 221 (9th Cir. 1961) (holding that asportation element of
In urging otherwise, Barrett cites cases involving crimes allegedly committed in the course of robberies (or other crimes) in which courts rejected defense arguments that the predicate crimes had concluded before the charged crimes occurred. See, e.g., United States v. Reid, 517 F.2d at 965 (rejecting challenge to
Thus, a sufficiency challenge to evidence of specific intent and asportation would not have succeeded, both because Hobbs Act robbery does not require such proof and because, in any event, the evidence here was sufficient to permit a reasonable jury to find such intent and asportation. This necessarily means that Barrett cannot demonstrate the prejudice required at the second step of Strickland analysis. See Harrington v. United States, 689 F.3d at 130.
Because Barrett thus fails to carry his burden at either step of Strickland analysis, we reject as meritless his ineffective assistance of counsel challenge to his conviction on Counts Five, Six, and Seven.
II. Substantive Hobbs Act Robbery Is a Crime of Violence
In Barrett II, this court stated that substantive Hobbs Act robbery can serve as a predicate crime of violence under
In Taylor, the Supreme Court held that attempted Hobbs Act robbery does not qualify as a categorical crime of violence, see 596 U.S. at 851, but the Court there said nothing to suggest that the same conclusion applies to substantive Hobbs Act robbery. See also United States v. Davis, 139 S. Ct. at 2336 (holding Hobbs Act conspiracy not a catеgorical crime of violence because
After Barrett filed his supplemental brief, this court published its decision in United States v. McCoy, 58 F.4th 72 (2d Cir. 2023). There, too, the defendants argued that Taylor undermined precedent recognizing substantive Hobbs Act robbery as a categorical crime of violence. See, e.g., United States v. Hill, 890 F.3d at 56–60. McCoy, however, roundly rejected that argument, holding that “nothing in Taylor‘s language or reasoning . . . undermines this [c]ourt‘s settled understanding
It is, of course, “a longstanding rule that a panel of our [c]ourt is bound by the decisions of prior panels until such times as they are overruled either by an en banc panel of our [c]ourt or by the Supreme Court.” United States v. Peguero, 34 F.4th 143, 158 (2d Cir. 2022) (internal quotation marks omitted). Thus, we are bound by McCoy to reject Barrett‘s argument that substantive Hobbs Act robbery is not a categorical crime of violence.20
In an effort to avoid this conclusion, Barrett argues that McCoy should not control here because the court there never considered the hypothetical Hobbs Act robberies he posits and, thus, “‘is not a binding precedеnt on th[at] point.‘” Appellant‘s Supp. Reply Br. at 3 (quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952)). He is mistaken.
L.A. Tucker Truck Lines and other cases cited by Barrett reflect only the principle that precedent is not binding when it “cannot fairly be read as resolving, or even considering, the question presented in [the instant] case.” Direct Mktg. Ass‘n v. Brohl, 575 U.S. 1, 12 n.1 (2015); see Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 113 (2d Cir. 1988) (noting earlier panel‘s ”sub silentio” resolution of issue that “never was briefed, argued, or decided” is “not binding precedent” (internal quotation marks omitted)); Pellegrino v. N.Y. State United Tchrs., 843 F. App‘x 409, 411 (2d Cir. 2021) (observing L.A. Tucker Truck Lines expresses “only the commonplace principle that precedent is not binding when it is not on point or does not resolve the question at issue in the instant case” (internal quotation marks and citations omitted)). Barrett has not cited any authority that permits us to disregard precedent that squarely rules on an issue simply because an earlier panel may not have considered additional arguments now proffered by a party. To the contrary, we are bound by prior panel rulings, even where the panel did not consider the instant party‘s “specific argument,” so long as there is “no way to reconcile [the prior] holding. . . with [the instant party‘s] proposed
That is the case here. Barrett urges this panel to hold that substantive Hobbs Act robbery is not a crime of violence. Such a ruling cannot coexist with McCoy‘s holding that it is. Accordingly, because this panel cannot overrule McCoy, we must reject Barrett‘s argument that substantive Hobbs Act robbery is not a categorical crime of violence. See United States v. Baker, 49 F.4th at 1358 [10th Cir.] (rejecting attempt to circumvent prior panel‘s holding that Hobbs Act robbery is crime of violence based on new arguments not considered by prior panel because “that holding is the law of this Circuit regardless of what might have happened had other arguments been made to the panel that decided the issue first” (emphasis in original) (internal quotation marks omitted)).
In sum, because Barrett‘s argument that substantive Hobbs Act robbery is not a crime of violence is foreclosed by McCoy, we do not address it further. Instead, following McCoy, we affirm Barrett‘s conviction on Counts Four, Six, and Seven because the Hobbs Aсt robbery predicates for those counts are categorically crimes of violence.
III. Sentence Challenge
A. Procedural Reasonableness
1. Application of Guideline § 2A1.1
Barrett argues that his 50-year sentence is procedurally unreasonable because the district court erred in applying Sentencing Guideline § 2A1.1 (First Degree Murder) rather than § 2B3.1 (Robbery) in calculating his recommended Sentencing Guidelines range. A district court commits procedural error if it improperly calculates the Sentencing Guidelines range. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc); accord United States v. Clarke, 979 F.3d 82, 99 (2d Cir. 2020). We “review[] a district court‘s application of the Guidelines de novo,” although we review its “factual determinations underlying a . . . Guidelines calculation . . . for clear error.” United States v. Cramer, 777 F.3d 597, 601 (2d Cir. 2015).
On de novo review, we conclude that the district court correctly applied § 2A1.1 in calculating Barrett‘s recommended Guidelines
range. Guideline
Application Note 1 to
In urging otherwise, Barrett cites United States v. Irving, 554 F.3d 64 (2d Cir. 2009), to argue that
Further, because the applicable Guidelines specifically instructed the district court to use the Statutory Index to identify the relevant offense guideline, Barrett‘s argument that his “real conduct” takes this case outside
In any event, Barrett‘s heartland argument is mistaken. He submits that
2. Mandatory Consecutive § 924(j) Sentence
Barrett argues that the district court committed procedural error when it concluded on remand, as it had at Barrett‘s original sentencing, that
a. Standard of Review
Controlling precedent states that, “[w]here we identify procedural error in a sentence, but the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for resentencing.” United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (internal quotation marks omitted). This rule places thе burden on the government to make the requisite clear showing. See United States v. Mason, 692 F.3d 178, 184 (2d Cir. 2012). If, however, the defendant forfeited a procedural challenge by failing to preserve it, it becomes his burden to demonstrate “plain error” by showing “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (internal quotation marks omitted); see United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). Finally, if a party fails to preserve a challenge to procedural error “as a tactical matter,” then we will identify “true waiver . . . negat[ing] even plain error review.” United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007) (internal quotation marks omitted). Generally, for us to identify true waiver, a defendant must “not only [have] failed to object to what [he] now describe[s] as error,” but also have “actively solicited” the error “in order to procure a perceived sentencing benefit.” Id.
In arguing that Barrett waived any objection to the application of
To explain, both at sentencing in the district court and on direct appeal to this court, Barrett argued that
Accordingly, and now with the benefit of Lora, we review the district court‘s mistaken application of
b. Record Ambiguity Precludes Finding the Lora Error Harmless
The government argues that Barrett‘s sentence is not infected by Lora error because, even if the district court was mistaken in looking to
There is more force to the government‘s argument that, even without misunderstanding
Other statements demonstrate that the district court imposed that 25-year sentence on Count Seven consecutively not just to satisfy a (mis)perceived statutory mandate, but to achieve the total 50-year sentence it thought necessary to address
[T]his was a serious crime. That‘s the reason why I‘m imposing a sentence of 50 years, which is . . . a long sentence, because these crimes were as brutal as any I‘ve ever seen. They persisted over such a long period of time after you had had prior convictions and continued even after the murder of a man during the course of a robbery. That does require punishment . . . . That‘s what drives this sentence.
There‘s just a limit . . . to how relevant [these mitigating factors] can be in a case like this . . . [where] crimes over such a long period of time involved such brutal violence, violence perpetrated or threatened agаinst a man in front of his children in his home, violence on the street, violence that resulted in a man getting killed.
Were these the district court‘s only statements pertinent to the challenged sentence, we might well conclude that the record clearly demonstrates that, even with the benefit of Lora, it would have imposed a 25-year consecutive sentence on Count Seven and a total 50-year sentence. See United States v. Jass, 569 F.3d at 68. But two ambiguous remarks by the district court give rise to some uncertainty about that conclusion. See United States v. Feldman, 647 F.3d 450, 459 (2d Cir. 2011) (stating that appellate court “cannot assume, without unambiguous indication to the contrary, that the sentence would be the same” even absent identified error).
First, at Barrett‘s initial sentencing, after construing
c. Double Jeopardy Does Not Bar Separate Sentences on Counts Six and Seven
Anticipating such a remand, Barrett argues that double jeopardy bars the district court from resentencing him on both Counts Six and Seven because the
In explaining that conclusion, we begin with the Double Jeopardy Clause, which guarantees that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”
As this court recently observed, whether one crime is a lesser-included offense of another is “not necessarily the determinative inquiry . . . in considering whether the same or overlapping conduct may be prosecuted or punished under two different statutes” consistent with the Double Jeopardy Clause. Id. at 102. Rather, “[a] court must first ‘determine whether the legislature . . . intended that each violation be a separate offense.‘” Id. at 103 (quoting Garrett v. United States, 471 U.S. 773, 778 (1985)). In short, the “‘touchstone’ of multiple punishments analysis ‘is whether Congress intended to authorize separate punishments for the offensive conduct under separate statutes.‘” Id. (quoting United States v. Chacko, 169 F.3d 140, 146 (2d Cir. 1999)).
In determining Congress‘s intent, the elements test identified in Blockburger v. United States, 284 U.S. 299 (1932), is often helpful: “[W]here the same act or transaction
To determine if Congress intended to authorize cumulative punishments, a court first looks to statutory text. See Garrett v. United States, 471 U.S. at 779-80 (starting with statutory language in determining whether Congress authorized cumulative punishments); see generally Oklahoma v. Castro-Huerta, 597 U.S. 629, 642-43 (2022) (stating that “Congress expresses its intentions through statutory text,” and that “Court may not replace the actual text with speculation as to Congress’ intent” (internal quotation marks omitted)). In the text of
As to the first point, the text of
As to the second point, the statutory text states that, “[n]otwithstanding any other provision of law . . . no term
Nevertheless, for some time, courts, including our own, accepted the government‘s concessions or otherwise concluded that cumulative
The Supreme Court‘s decision in Lora upsets this understanding of
Section 924(j) was not at issue in Gonzales. Rather, the Supreme Court there considered whether Congress intended for
Consistent with Gonzales‘s construction of
Thus, based on the texts of
That conclusion finds further support in statutory structure. As the Supreme Court observed in Lora, Congress specifically chose to locate
Common sense also supports the conclusion. See Garrett v. United States, 471 U.S. at 779, 785 (considering statutory “language, structure, and legislative history” together with “common sense” in determining whether Congress intended to authorize cumulative punishments for overlapping offenses); accord United States v. Aquart, 92 F.4th at 104–06. Construing
Here again, Lora is instructive. The Supreme Court there recognized not only that Congress had created distinct sentencing schemes for
The same reasoning applies to
Nor is a different conclusion warranted by language in
Congress‘s intent in affording courts broad discretion in sentencing a defendant on a
As applied to this case, this conclusion means that to correct the identified procedural error in Barrett‘s sentence, the district court, on remand, must resentence him on Count Seven following the sentencing regimen established by
B. Substantive Unreasonableness36
Barrett submits that his 50-year sentence is substantively unreasonable because such a lengthy term is unnecessary to protect the public in light of his rehabilitation, ineffective in providing correctional treatment, and more severe than the sentences imposed on his confederates. We are not persuaded.
To succeed on a substantive unreasonableness claim, a defendаnt bears a “heavy” burden because this court does not itself attempt to identify “a ‘right’ sentence,” but instead “defer[s] to the district court‘s exercise of judgment” so long as the challenged sentence can be located “within the range of permissible decisions available to a sentencing court.” United States v. Messina, 806 F.3d 55, 65-66 (2d Cir. 2015) (internal quotation marks omitted). It is particularly difficult for a defendant to make that showing when, as here, he challenges a below-Guidelines sentence. See id. at 66.
Barrett cannot show that a 50-year sentence fell outside the range of permissible sentences available to the district court. Barrett and his confederates committed “a series of frequently armed, and invariably violent, robberies,” in the course of one of which Dafalla was murdered. Barrett I, 903 F.3d at 170–71. While Barrett argues to this court, as he did to the district court, that he did not personally shoot Dafalla, the district court reasonably assigned him responsibility for that murder based on his active efforts to cover up the killing and his participation in the violence that attended other prior and subsequent robberies. That included a robbery
Barrett‘s argument that confederates received more lenient sentences warrants no different conclusion. The law does not require a district court to “consider or explain sentencing disparities among codefendants.” United States v. Alcius, 952 F.3d 83, 89 (2d Cir. 2020). In any event, Barrett is not similarly situated to confederates receiving more lenient sentences who either pleaded guilty, were not convicted of murder, participated in less violence or fewer robberies, had less serious criminal histories, or some combination thereof. See United States v. Lee, 653 F.3d 170, 175 (2d Cir. 2011) (concluding defendant not similarly situated to co-defendant because of role in offense); United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006) (observing sentencing difference justified where defendant did nоt plead guilty, unlike co-defendant), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007); United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008) (concluding defendant not similarly situated to co-defendant who pleaded guilty to less serious crimes).
Insofar as Barrett‘s remaining arguments appear to question the particular weight afforded to various aggravating and mitigating factors, that matter is “firmly committed to the discretion of the sentencing judge.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal quotation marks omitted). On resentencing the district court recognized Barrett‘s improvement in prison and accorded that factor considerable weight in reducing his sentence. Nevertheless, the court explained that such improvement could not outweigh the seriousness of the crimes committed. See supra at 13–14. That decision was well within the district court‘s discretion.
In sum, the challenged 50-year sentence for a recidivist defendant convicted of multiple violent robberies, in one of which a victim was murdered, is “within the range of permissible decisions.” United States v. Messina, 806 F.3d at 66 (internal quotation marks omitted). We therefore reject as meritless Barrett‘s argument that his sentence is substantively unreasonable.
CONCLUSION
To summarize:
- Barrett‘s appellate counsel was not constitutionally ineffective in failing to argue that the evidence was insufficient to prove the Hobbs Act robbery necessary to support his conviction on Counts Five, Six, and Seven.
- Circuit precedent compels the conclusion that Hobbs Act robbery is a categorical crime of violence. See United States v. McCoy, 58 F.4th 72 (2d Cir. 2023).
- The district court did not commit a procedural sentencing error in applying
U.S.S.G. § 2A1.1 to calculate Barrett‘s recommended Sentencing Guidelines range. - Lora v. United States, 599 U.S. 453 (2023), decided after Barrett was resentenced in 2021, compels the conclusion that the district court committed procedural error in applying
§ 924(c) ‘s minimum and consecutive sentence mandates to Barrett‘s§ 924(j) sentence on Count Seven. On remand, the district court must impose separate sentences under§ 924(c) on Count Six and under§ 924(j) on Count Seven consistent with Lora and this opinion. - Barrett‘s below-Guidelines total prison sentence of 50 years is not substantively unreasonable.
Accordingly, we VACATE the district court‘s May 21, 2021 amended judgment of conviction only as to its sentence, and we REMAND for resentencing consistent with the Supreme Court‘s decision in Lora v. United States, 599 U.S. 453 (2023), and this opinion. In all other respects, the May 21, 2021 amended judgment is AFFIRMED.
Notes
At the same time,[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm . . . shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years.
This second mandatory minimum was amended in 2018 by the First Step Act. See infra at 11–12.In the case of a second or subsequent conviction under this subsection, the person shall—
(i) be sentenced to a term of imprisonment of not less than 25 years[.]
Section
Section[N]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.
A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall—
(1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life; and
(2) if the killing is manslaughter (as defined in section 1112), be punished as provided in that section.
In the case of a violаtion of this subsection that occurs after a prior conviction under this subsection has become final, the person shall—
(i) be sentenced to a term of imprisonment of not less than 25 years[.]
The defendant and his co-conspirators committed a string of armed robberies of small businesses. During the robberies, they wore masks and gloves. They were armed with guns, knives, and baseball bats. They injured several people during
Id.all six elements of larceny—a (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of anothеr (6) with intent to steal it—plus two additional elements: (7) that the property be taken from the person or presence of the other and (8) that the taking be accomplished by means of force or putting in fear.
§ 924(c)(1)(A)(i) -(iii) mandates a sentence of “not less than 5 years” if, during “any crime of violеnce or drug trafficking crime,” a firearm is “use[d] or carrie[d]“; “not less than 7 years” if during such a crime a firearm is “brandished“; and “not less than 10 years” if during such a crime a firearm is “discharged.”§ 924(c)(1)(B)(i) -(ii) mandates a sentence of “not less than 10 years” if the firearm used in a§ 924(c) crime is “a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon“; and “not less than 30 years” if the firearm is a “machinegun,” “destructive device,” or is “equipped with a firearm silencer or firearm muffler.”§ 924(c)(1)(C)(i) -(ii) mandates a sentence of “not less than 25 years” if a§ 924(c) crime is committed “after a prior conviction under this subsection has become final“; and a “life” sentence if the firearm used in such a successive crime is a “machinegun,” “destructive device,” or “is equipped with a firearm silencer or firearm muffler.”§ 924(c)(1)(D)(i) expressly prohibits a court from “plac[ing] on probation any person convicted of a violation of this subsection.”
§ 924(c)(1)(A) states in pertinent part that its prescribed mandatory minimum sentences “shall” be imposed “in addition to the punishment provided for [the predicate] crime of violence or drug trafficking crime” supporting the§ 924(c) conviction.§ 924(c)(1)(D)(ii) states that no sentence imposed “under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.”
The concern identified by the Supreme Court is not limited to its hypothetical. Indeed, it is always impossible for a court sentencing under
Nor is the concern minimized by the suggestion that double jeopardy does not preclude separate sentences for a