14-2641-cr
USA v. Barrett


                               In the
            United States Court of Appeals
                      for the Second Circuit


                          AUGUST TERM 2015

                            No. 14-2641-cr

                     UNITED STATES OF AMERICA,
                              Appellee,

                                  v.

     DWAYNE BARRETT, AKA SEALED DEFENDANT 3, AKA TALL MAN,
                       Defendant-Appellant,

     FAHD HUSSAIN, AKA ALI, AKA MOE, TAMESHWAR SINGH, AKA
     SEALED DEFENDANT 5, SHEA DOUGLAS, JERMAINE DORE, AKA ST.
    KITTS, AKA BLAQS, TAIJAY TODD, AKA SEALED DEFENDANT 4, AKA
               BIGGS, DAMIAN CUNNINGHAM, AKA JABA,

                             Defendants. *



            On Appeal from the United States District Court
                for the Southern District of New York



                      ARGUED: JANUARY 22, 2016
                     DECIDED: SEPTEMBER 10, 2018



*The Clerk of Court is directed to amend the caption as set forth
above.
14-2641-cr
United States v. Barrett




Before: WINTER, RAGGI, and DRONEY, Circuit Judges.
                            ________________
        On appeal from a judgment entered in the United States District
Court for the Southern District of New York (Sullivan, J.) following a
jury trial, defendant challenges his conviction for using firearms in
the commission of violent crimes, see 18 U.S.C. § 924(c)(1)(A), in one
case causing death, see id. § 924(j).     Defendant argues that the
predicate felonies for these firearms offenses—substantive and
conspiratorial Hobbs Act robbery, see id. § 1951—are not “crime[s] of
violence” within the meaning of § 924(c)(3), a conclusion he maintains
is compelled by the Supreme Court’s decisions in Sessions v. Dimaya,
138 S. Ct. 1204 (2018), and Johnson v. United States, 135 S. Ct. 2551
(2015). Defendant’s argument as to substantive Hobbs Act robbery is
defeated by this court’s post-Dimaya decision in United States v. Hill,
890 F.3d 51 (2d Cir. 2018), which holds substantive Hobbs Act robbery
to be a categorical crime of violence under § 924(c)(3)(A).         His
argument as to conspiratorial Hobbs Act robbery fails for two
reasons. First, our precedent has long recognized that a conspiracy to
commit a crime of violence is itself a crime of violence, and
Dimaya/Johnson warrant no different conclusion because we need not
look beyond the elements of Hobbs Act robbery conspiracy to follow
our precedent here.        Second, and in any event, the § 924(c)(3)
definitions of a crime of violence apply only to the predicate offense
of a crime of pending prosecution, not a crime of prior conviction as in
Dimaya and Johnson. This means that any § 924(c)(3)(B) factfinding as
to the violent nature of the predicate offense and the risk of physical
force in its commission can be made by the trial jury in deciding the
defendant’s guilt, thus avoiding both the Sixth Amendment and due
process vagueness concerns at issue in Dimaya and Johnson. The fact



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United States v. Barrett


that the jury was not charged to make such findings here is harmless
error because the record of beatings, shootings, and murder in this
case admits no other conclusion but that the charged robbery
conspiracy was a violent crime under § 924(c)(3)(B).

        AFFIRMED.



                           KELLEY J. SHARKEY, ESQ., Brooklyn,
                           New York, for Defendant-Appellant.

                           MICHAEL D. MAIMIN, Assistant United
                           States Attorney (Amy R. Lester, Jessica A.
                           Masella, Karl Metzner, Assistant United
                           States Attorneys, on the brief), for Geoffrey S.
                           Berman, United States Attorney for the
                           Southern District of New York, New York,
                           New York, for Appellee.


REENA RAGGI, Circuit Judge:

        Defendant Dwayne Barrett stands convicted after a jury trial in
the United States District Court for the Southern District of New York
(Richard J. Sullivan, Judge) of conspiracy to commit Hobbs Act
robbery, see 18 U.S.C. § 1951 (Count One); using a firearm in the
commission of that conspiracy, see id. §§ 924(c)(1)(A) and 2 (Count
Two); two substantive Hobbs Act robberies, see id. §§ 1951 and 2
(Counts Three and Five); and using firearms in the commission of
those robberies, see id. §§ 924(c)(1)(A) and 2 (Counts Four and Six); in
one case causing death, see id. §§ 924(j) and 2 (Count Seven).
Sentenced to a total prison term of 90 years, Barrett now challenges
his conviction, arguing through counsel that (1) his Counts Two, Four,



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United States v. Barrett


Six, and Seven firearms convictions must be vacated and those
charges dismissed because the felonies in which the firearms were
used—substantive and conspiratorial Hobbs Act robbery—are not
“crime[s] of violence” within the meaning of § 924(c)(3), a conclusion
he maintains is compelled by the Supreme Court’s recent decisions in
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and Johnson v. United States,
135 S. Ct. 2551 (2015) 1; (2) his conviction must be vacated in its entirety
and a new trial ordered because cell phone and videotape evidence
was erroneously admitted at trial; and (3) in any event, his sentence
must be vacated and new sentencing ordered because the mandatory
consecutive sentencing provision of § 924(c)(1)(C) should not have
been applied to his § 924(j) Count Seven conviction. In supplemental
pro se briefs, Barrett raises additional evidentiary, sufficiency,
charging, and prosecutorial misconduct challenges.

        In a summary order filed today, we address all of Barrett’s
arguments except the first, i.e., his “crime of violence” challenge to the
Hobbs Act offenses underlying his §§ 924(c)(1)(A) & (j) convictions.
We here conclude that Barrett’s challenge to his Counts Four, Six, and
Seven convictions—predicated on substantive Hobbs Act robberies—
is defeated by United States v. Hill, 890 F.3d 51 (2d Cir. 2018), which,
post-Dimaya, holds substantive Hobbs Act robbery to be a categorical
crime of violence within the definition of § 924(c)(3)(A). Barrett’s
challenge to his Count Two conviction—predicated on a Hobbs Act
robbery conspiracy—fails for two reasons. First, our precedent has
long held that a conspiracy to commit a categorical crime of violence
is itself a categorical crime of violence. See, e.g., United States v. Patino,
962 F.2d 263, 267 (2d Cir. 1992). Dimaya and Johnson compel no


1Decision in this case was held pending the Supreme Court’s decision in Dimaya and this
court’s post-Dimaya decision in United States v. Hill, 890 F.3d 51 (2d Cir. 2018).


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United States v. Barrett


different conclusion because we need look only to the elements of
Hobbs Act robbery conspiracy as applied to § 924(c)(3)(A) together
with § 924(c)(3)(B) in following our precedent here. Second, and in
any event, a conduct-specific, rather than categorical, approach to
§ 924(c)(3)(B) is appropriate because the predicate offense defined by
that statute is an element of the crime of pending prosecution, not a
crime of prior conviction as in Dimaya and Johnson. This means that
the trial jury, in deciding guilt, can determine whether the predicate
offense “by its nature, involve[d] a substantial risk that physical force
. . . may be used” in committing the offense, 18 U.S.C. § 924(c)(3)(B),
thereby avoiding both the trial-by-jury and due process vagueness
concerns identified in Dimaya and Johnson. The fact that the jury was
not charged to make such findings here is harmless error because the
record of beatings, shootings, and murder in this case admits no other
conclusion but that the charged robbery conspiracy was a violent
crime under § 924(c)(3)(B). See, e.g., Neder v. United States, 527 U.S. 1,
15 (1999).

        Accordingly, the judgment of conviction is affirmed.

                           BACKGROUND

        Between August 2011 and January 2012, Barrett joined together
with others (the “Crew”) in a conspiracy to commit a series of
frequently armed, and invariably violent, robberies.          The Crew
generally targeted small business operators believed to be in
possession of cash or valuables.        Co-conspirator Fahd Hussain,
himself a Bronx storeowner, identified most of these targets for the
Crew. During the robberies, Crew members wore masks and gloves
to conceal their identities. They used guns, knives, baseball bats, and




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United States v. Barrett


their fists to threaten and coerce victims, physically injuring several
and killing one.

    I.       The Robberies

         To address Barrett’s § 924(c) challenge, we need only
summarize certain robberies and attempted robberies supporting his
Count One conviction for Hobbs Act robbery conspiracy. In doing so,
we indicate the two particular robberies supporting Barrett’s
substantive Hobbs Act convictions on Counts Three and Five, as well
as his § 924(c)(1) firearms convictions on Counts Two, Four, and Six,
and his § 924(j) firearms-murder conviction on Count Seven.

         1. Rauf Robbery: On August 22, 2011, Barrett and three other
Crew members traveled to Matamoras, Pennsylvania, where they
robbed Abdul Rauf, the owner of a local gas station and convenience
store, of approximately $46,000. In the course of the robbery, one
Crew member punched Rauf in the face.

         2. Tawfiq Robbery: On October 5, 2011, in the Bronx, Barrett and
another Crew member robbed Mubarak Tawfiq, a telephone calling
cards dealer, of more than $1,000 in cash but, after physically
struggling with the victim, abandoned the effort.

         3. Abdulkader Attempted Robbery: On October 10, 2011, also in
the Bronx, Crew members (this time, without Barrett) attempted to
rob convenience store owner Youssef Abdulkader. As the robbers
approached, one brandishing a knife, Abdulkader dropped his
cellphone and laptop computer and ran off.

         4. Goel Robbery: That same day, in New Rochelle, New York,
Crew members (again without Barrett) robbed Prashant Goel, a
telephone calling cards dealer, of approximately $6,000 in cash and

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United States v. Barrett


thousands of dollars’ worth of telephone calling cards. In committing
this robbery, Crew members smashed the windows of Goel’s car with
baseball bats, slashed the car’s tires with a knife, thrust the knife into
the car to threaten Goel, and punched him.

        5. Salahi Robbery: On October 29, 2011, in the Bronx, Barrett and
other Crew members robbed poulterer Ahmed Salahi of $15,000.
Crew members had followed Salahi to a mosque and, when he exited,
forced him at knifepoint into his car and drove him to his home.
While Salahi lay on the floor of his car, one Crew member held a knife
to his head, while another took Salashi’s keys and entered his home.
Inside were Salahi’s brother Kassim Salahi with his 8- and 10-year old
sons. Brandishing guns, Barrett and fellow Crew member Jermaine
Dore ordered Kassim Salahi and his children to lie on the floor and
not to make a sound. Meanwhile Crew members took the money they
had sought from a closet, whereupon they left the home. These events
informed Barrett’s Count Three substantive Hobbs Act conviction, as
well as his Counts Two and Four firearms convictions.

        6. Singh Attempted Robbery: On November 14, 2011, Barrett and
another Crew member attempted to rob gas station manager Jaspal
Singh of cash proceeds from that business. Upon noticing a black
Mercedes Benz trailing him from Mt. Vernon, New York, to the Bronx,
Singh called the police. When police stopped the vehicle, Barrett, who
was driving, consented to its search, resulting in the discovery of two
baseball bats, but no further police action.

        7. Cornwall Robbery: On December 5, 2011, in another Bronx
robbery committed without Barrett, Crew members robbed Fitzroy
Cornwall, who worked at Westchester Medical Center, of jewelry, his
wallet, and the money contained therein. In committing this robbery,



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United States v. Barrett


Crew members forcibly threw Cornwall to the ground and fired a
gunshot into the air.

        8. Dafalla Attempted Robbery and Murder: On December 12, 2011,
Barrett and Crew members Dore and Taijay Todd robbed and killed
Gamar Dafalla, events that support Barrett’s Count Two firearms
conviction, Count Five substantive Hobbs Act conviction, Count Six
firearms conviction, and Count Seven firearms-murder conviction.
The three Crew members, traveling in Barrett’s Mercedes, had
followed Dafalla to and from the Mt. Vernon site of a cash sale of
untaxed cigarettes. As Barrett waited in the car, Todd and Dore
approached the minivan in which Dafalla was traveling with Jamal
Abdulla and Zhao Liang. With both Dore and Todd brandishing
guns, the Crew members pulled Abdulla and Liang out of the
minivan, entered the vehicle, and drove off with Dafalla. As they did
so, Dafalla surreptitiously threw $10,000 in sale proceeds out the
window, where Abdulla recovered it. When Dore and Todd realized
what had happened, Dore shot and killed Dafalla.           Subsequent
ballistics examination showed that the firearm that killed Dafalla was
the same one discharged in the Cornwall robbery the previous week.
After Dore was arrested, Barrett retrieved and disposed of the murder
weapon, throwing it into the Hudson River.

        9. Althomory Robbery: Only hours after the Dafalla murder,
Barrett, Dore, and other Crew members struck again, this time
robbing Bronx tobacco salesman Mohammed Althomory of
approximately $15,000.     While one robber confronted Althomory
directly at gunpoint, another approached him from behind and,
wielding a knife, threatened to kill him if he yelled. The men then hit
Althomory with sufficient force to knock him down and cause




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United States v. Barrett


bleeding and made off with his money. This firearm use supports
Barrett’s Count Two conviction.

          10. Mohammed Robbery: On December 31, 2011, Barrett again
acted as the driver when Crew members robbed telephone calling
cards supplier Ayoub Mohammed of approximately $3,200. The
robbery, which took place in a Bronx parking garage, was captured
on video, which shows the robbers repeatedly punching Mohammed
in the head, face, and arms, both before and after throwing him to the
ground, whereupon they ran off with the bag containing his cash.

          11. Krco Robbery: On January 7, 2012, Barrett, Dore, and another
Crew member robbed Bronx wholesale bodega supplier Djujka Krco,
of approximately $1,800. Once again, Barrett acted as the driver,
while Dore and the other robber threatened Krco at knifepoint and hit
her. When she tried to run away, the robbers chased and grabbed her,
hitting her again before taking her money.

    II.      Procedural History

          Barrett stood trial together with Crew member Dore on the
seven counts of the Indictment. Four Crew members also named in
the original Indictment pleaded guilty before trial; another was tried
separately from Barrett and Dore and found guilty.            Two Crew
members and a number of robbery victims testified for the
prosecution, and extensive physical and documentary evidence was
adduced inculpating Barrett and Dore in the charged crimes.

          On March 19, 2013, a jury found both defendants guilty of all
seven counts of the Indictment. On July 16, 2014, the district court




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sentenced Barrett to an aggregate prison term of 90 years and an
aggregate supervised release term of five years. 2

        This timely appeal followed.

                                   DISCUSSION

        In his brief to this court, Barrett acknowledges that the trial
evidence showed him to have been “a member of a violent robbery
conspiracy,” during which “one man was killed, another was
abducted, and several more were held at gunpoint and assaulted.”
Def.’s Br. 3.         Barrett nevertheless argues that his four firearms
convictions—Counts Two, Four, Six, and Seven—must be vacated
and the charges dismissed because Hobbs Act robbery predicates for
those counts do not categorically satisfy the “crime of violence”
requirement of § 924(c)(1). The argument fails on the merits.




2The district court sentenced Barrett as follows:
        Count One (Hobbs Act robbery conspiracy): 20 years;
        Count Two (firearms use in course of Count One): 5 years (mandatory
        consecutive);
        Count Three (substantive Hobbs Act robbery): 15 years (concurrent to
        Count Five, otherwise consecutive);
        Count Four (firearms use in course of Count Three): 25 years (mandatory
        consecutive);
        Count Five (substantive Hobbs Act robbery): 15 years (concurrent to
        Count Three, otherwise consecutive);
        Count Six (firearms use in course of Count Five): 25 years (mandatory
        consecutive);
        Count Seven (firearms use in course of Count Five resulting in death): 25
        years (mandatory consecutive but merged with Count Six).
Dore was sentenced to a total prison term of 65 years, and this court has already affirmed
his judgment of conviction. See United States v. Dore, 586 F. App’x 42 (2d Cir. 2014).


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United States v. Barrett


    I.          The Relevant Statutes

         To explain our conclusion, we begin with the relevant statutory
texts.

         Section 924(c)(1) states the crime of conviction on challenged
Counts Two, Four, and Six. As pertinent here, it reads as follows:

         (A) . . . any person who, during and in relation to any
         crime of violence . . . for which the person may be
         prosecuted in a court of the United States, uses or carries
         a firearm or who, in furtherance of any such crime,
         possesses a firearm, shall, in addition to the punishment
         provided for such crime of violence . . .

         (i)      be sentenced to a term of imprisonment of not less
                  than 5 years;

         (ii)     if the firearm is brandished, be sentenced to a term
                  of imprisonment of not less than 7 years; and

         (iii)    if the firearm is discharged, be sentenced to a term
                  of imprisonment of not less than 10 years. . . .

         (C) 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 . . . .

18 U.S.C. § 924(c)(1).

         Section 924(j), which states the crime of conviction on
challenged Count Seven, reads in pertinent part as follows:

         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—


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United States v. Barrett


           (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 . . . .

Id. § 924(j).

           Section 924(c)(3) defines the “crime of violence” element of
§ 924(c)(1)(A) and, by incorporation, of § 924(j) as follows:

           For purposes of this subsection the term “crime of
           violence” means an offense that is a felony and—

           (A)      has as an element the use, attempted use, or
                    threatened use of physical force against the person
                    or property of another, or

           (B)      that by its nature, involves a substantial risk that
                    physical force against the person or property of
                    another may be used in the course of committing
                    the offense.

Id. § 924(c)(3).

           As this text makes plain, the § 924(c)(3)(A) definition is
traditionally categorical, identifying a crime of violence by reference
to an element that requires the actual, attempted, or threatened use of
force. 3         Barrett argues that neither Hobbs Act substantive nor
conspiratorial robbery satisfies this § 924(c)(3)(A) definition.                          He
further argues that § 924(c)(3)(B)’s residual definition, referencing an
offense that “by its nature” involves “a substantial risk” of physical
force, must be invalidated as unconstitutionally vague in light of
Sessions v. Dimaya, 138 S. Ct. 1204 (holding similar residual clause
definition          of     “crime      of     violence”        in    18     U.S.C.     § 16(b)

3   In contrast, a conduct-specific inquiry looks to the facts of the specific case.



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United States v. Barrett


unconstitutionally vague 4), and Johnson v. United States, 135 S. Ct. 2551
(reaching same conclusion regarding residual clause definition of
“violent felony” applied to prior conviction under Armed Career
Criminal Act (“ACCA”) 5).

        Before addressing these challenges, we set forth one further
statutory text, defining substantive and conspiratorial Hobbs Act
robbery:

        (a) Whoever in any way or degree obstructs, delays, or
        affects commerce or the movement of any article or
        commodity in commerce, by robbery or extortion or
        attempts or conspires to do so, . . . shall be . . . imprisoned
        not more than twenty years . . . .

        (b) As used in this section—

              (1) 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


4Title 18 U.S.C. § 16, which provides a general two-part definition of a “crime of violence,”
states as follows:
         The term “crime of violence” means—
         (a) an offense that has as an element the use, attempted use, or threatened
              use of physical force against the person or property of another, or
         (b) any other offense that is a felony and that, by its nature, involves a
              substantial risk that physical force against the person or property of
              another may be used in the course of committing the offense.
18 U.S.C. § 16.

5ACCA mandates an aggravated sentence for § 922(g) firearms crimes committed by
persons with three or more prior violent felony or serious drug convictions. It defines
“violent felony” to mean an offense that, among other things,
        (i)      has as an element the use, attempted use, or threatened use of
                 physical force against the person of another; or
        (ii)     is burglary, arson, or extortion, involves use of explosives, or
                 otherwise involves conduct that presents a serious potential risk
                 of physical injury to another.
18 U.S.C. § 924(e)(2)(B).


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              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.

18 U.S.C. § 1951.

    II.      Barrett’s Substantive Hobbs Act Robberies Are
             Categorical Crimes of Violence Under 18 U.S.C.
             § 924(c)(3)(A)

          Barrett first challenges his firearms conviction on Counts Four,
Six and Seven on the ground that substantive Hobbs Act robberies are
not crimes of violence under 18 U.S.C. § 924(c)(3)(A). This categorical
challenge is defeated by United States v. Hill, 890 F.3d 51. Hill holds
“that Hobbs Act robbery ‘has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another’” and, thus, is a categorical “crime of violence under 18 U.S.C.
§ 924(c)(3)(A).” Id. at 53, 60 (quoting 18 U.S.C. § 924(c)(3)(A)).

          The conclusion derives from the Hobbs Act’s definition of
robbery quoted supra at 13–14. The Hill defendant had argued that
the definition did not categorically satisfy § 924(c)(3)(A) because it
was possible to put a robbery victim “in ‘fear of injury’ to his person
or property, . . . without the ‘use, attempted use, or threatened use of
physical force’” and, thus, “the minimum conduct necessary to
commit a Hobbs Act robbery does not include the element necessary
to qualify such robberies as crimes of violence for the purpose of
§ 924(c)(3)(A).”           Id. at 57 (quoting first § 1951(b) and then
§ 924(c)(3)(A)) (emphasis in original).         This court rejected the
argument, observing, first, that the defendant had failed to show that



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in either “‘his own case or other cases,’” the Hobbs Act had ever been
applied in the absence of actual, attempted, or threatened force, so as
to demonstrate a “‘realistic probability’” that Hobbs Act robbery was
not categorically a violent crime. Id. at 59 (quoting Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007) (holding that to show predicate
conviction not categorically a crime of violence “requires more than
the application of legal imagination to . . . statute’s language”)). 6
Second, and in any event, the court explained that each of the fear-of-
injury hypotheticals advanced to support defendant’s argument, in
fact, entailed the “use, attempted use, or threatened use of physical
force,” 18 U.S.C. § 924(c)(3), as that term has been construed by the
Supreme Court. See United States v. Hill, 890 F.3d. at 58–60 (explaining
that “‘physical force’ . . . means simply ‘violent force—that is, force
capable of causing physical pain or injury to another person’”
(quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis in
original)).

         Following Hill’s holding, we conclude that the substantive
    Hobbs Act robberies for which Barrett stands convicted are
    categorical crimes of violence under 18 U.S.C. § 924(c)(3)(A) and,
    thus, support his § 924(c)(1)(A) convictions on Counts Four and Six,
    and his § 924(j) conviction on Count Seven.




6Hill certainly used violent—indeed, deadly—force when, in the course of a Hobbs Act
robbery, he shot and killed his target, a livery cab driver, in violation of 18 U.S.C. § 924(j)(1).
See United States v. Hill, 890 F.3d at 52–53.


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    III.     Barrett’s Conspiracy To Commit Hobbs Act Robbery
             Conspiracy Is a Crime of Violence Under 18 U.S.C.
             § 924(c)(3)

             A. Hobbs Act Robbery Conspiracy Is a Categorical Crime
                of Violence as Defined by § 924(c)(3)(A) Together with
                § 924(c)(3)(B)

        Barrett further challenges his firearms conviction on Count
 Two on the ground that a conspiracy to commit Hobbs Act robbery
 is not a crime of violence under 18 U.S.C. § 924(c)(3)(A) and
 § 924(c)(3)(B). Because the only crime at issue in Hill was substantive
 Hobbs Act robbery, this court had no occasion there to consider
 whether a Hobbs Act robbery conspiracy is also a crime of violence
 under the elements definition of § 924(c)(3)(A), or the residual
 definition of § 924(c)(3)(B).

        In fact, it has long been the law in this circuit that a conspiracy
 to commit a crime of violence is itself a crime of violence under 18
 U.S.C. § 924(c)(3). See United States v. Desena, 287 F.3d 170, 181 (2d
 Cir. 2002) (reaching conclusion with respect to conspiracy to commit
 assault in aid of racketeering); accord United States v. Acosta, 470 F.3d
 132, 136–37 (2d Cir. 2006) (reaching conclusion with respect to
 conspiracy to injure, threaten, or intimidate person in exercise of civil
 rights). Indeed, we have so held with particular reference to Hobbs
 Act robbery conspiracy, see United States v. Elder, 88 F.3d 127, 129 (2d
 Cir. 1996), among other crimes, see, e.g., United States v. Patino, 962
 F.2d at 267 (reaching conclusion with respect to kidnapping
 conspiracy). We have also so held in contexts other than § 924(c). See
 United States v. Doe, 49 F.3d 859, 866–67 (2d Cir. 1995) (recognizing
 Hobbs Act robbery conspiracy to be crime of violence under 18
 U.S.C. § 16 for purposes of allowing government to proceed against



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    juvenile as adult under Juvenile Delinquency Act); United States v.
    Chimurenga, 760 F.2d 400, 404 (2d Cir. 1985) (recognizing conspiracy
    to commit armed robbery as crime of violence for purposes of Bail
    Reform Act 7).

         The rationale was stated in Chimurenga, 760 F.2d at 404, and
    reiterated in Patino, on which subsequent cases rely.

         [C]onspiracy, by its very nature, is a collective criminal
         effort where a common goal unites two or more
         criminals. Such a meeting of the minds enhances the
         likelihood that the planned crime will be carried out.
         Thus, when a conspiracy exists to commit a crime of
         violence, . . . the conspiracy itself poses a “substantial
         risk” of violence, which qualifies it under Section
         924(c)(1) and Section 924(c)(3)(B) as a crime of violence.

    United States v. Patino, 962 F.2d at 267 (citation omitted). Applying
    this precedent here, we conclude that if a substantive offense is
    categorically a crime of violence under § 924(c)(3)(A)—as Hill holds
    Hobbs Act robbery to be—a conspiracy to commit that crime, by its
    “very nature” presents a substantial risk of physical force, so as also
    to be a violent crime under § 924(c)(3)(B). Id.

         In urging otherwise, Barrett argues that the cited precedent
    cannot survive Dimaya and Johnson. In Dimaya, an alien challenged a
    deportation order premised on a prior state conviction for first-


7The Bail Reform Act defines a “crime of violence” similarly to § 924(c)(3), as follows:
        (A) an offense that has as an element of the offense the use, attempted use,
        or threatened use of physical force against the person or property of
        another; [or]
        (B) any other offense that is a felony and that, by its nature, involves a
        substantial risk that physical force against the person or property of
        another may be used in the course of committing the offense.
18 U.S.C. § 3156(a)(4).


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United States v. Barrett


 degree burglary, which immigration authorities held to be a crime of
 violence under the residual definition in 18 U.S.C. § 16(b). See supra
 at 13 n.4. In holding that provision unconstitutionally vague, Dimaya
 relied on reasoning earlier employed in Johnson v. United States, 135
 S. Ct. at 2562–63, to invalidate ACCA’s residual definition of a crime
 of violence, specifically, the “hopeless indeterminacy” that resulted
 from tying a judicial assessment of risk to a crime’s hypothetical
 “ordinary case.”          Sessions v. Dimaya, 138 S. Ct. at 1213 (internal
 quotation marks to Johnson omitted).

        The identification of a crime’s “ordinary case” is “a distinctive
 form of . . . the categorical approach,” developed by the Supreme
 Court specifically for application to residual definitions of a crime of
 violence. Id. at 1211; see James v. United States, 550 U.S. 192, 207–08
 (2007) (identifying “proper inquiry” for categorical application of a
 residual definition to be “whether the conduct encompassed by the
 elements of the offense, in the ordinary case, presents a serious
 potential risk of injury to another” (emphasis added), and rejecting
 argument that ACCA’s residual clause required prior crime of
 conviction to create risk of physical injury in “all cases” (emphasis in
 original)).      In Dimaya, the Supreme Court held that construing
 § 16(b)’s residual definition of a crime of violence by reference to an
 “ordinary case” raised due process vagueness concerns because of
 “grave uncertainty” about (1) how judges should estimate the risk
 posed by a crime’s “ordinary case,” and (2) what “threshold level of
 risk” would make a crime a violent felony. Sessions v. Dimaya, 138
 S. Ct. at 1211, 1213–14. While the latter concern was not a problem
 in itself, it became so when layered on top of the first. See id. at 1215–
 16; Johnson v. United States, 135 S. Ct. at 2561 (reaching same
 conclusion regarding ACCA residual clause).



                                        18
14-2641-cr
United States v. Barrett


         Section 924(c)(3)(B)’s definition of a violent crime is similar to
    that of § 16(b). Thus, Barrett argues that, after Dimaya and Johnson, a
    court cannot look to an “ordinary case” of Hobbs Act robbery
    conspiracy to identify the offense as a categorical crime of violence
    under § 924(c)(3)(B). That may be so. 8 Nevertheless, Dimaya and
    Johnson do not require us to abandon our Patino/Chimurenga line of
    precedent here. That is because there is no need to identify an
    “ordinary case” of Hobbs Act robbery conspiracy to make a violent
    crime determination under § 924(c)(3). See Sessions v. Dimaya, 138
    S. Ct. at 1215–16 (observing that substantial risk standard posed
    constitutional concern only when applied to “‘judge-imagined
    abstraction,’—i.e., ‘an idealized ordinary case of the crime’. . . . It is
    then that the standard ceases to work in a way consistent with due
    process.” (quoting Johnson v. United States, 135 S. Ct. at 2558, 2561)).
    We can do so simply by applying the elements of that crime to
    § 924(c)(3)(A) together with § 924(c)(3)(B), in short, by following the
    traditional categorical approach.

         To explain, an element of any conspiracy is an agreement
    between two or more persons to commit an offense against the
    United States. See United States v. Jimenez Recio, 537 U.S. 270, 274


8  See United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018) (holding that Dimaya’s
conclusion that § 16(b) is unconstitutionally vague compels conclusion that § 924(c)(3)(B)
is also unconstitutionally vague because two statutes are “materially identical”); United
States v. Salas, 889 F.3d 681, 685 (10th Cir. 2018) (holding that, as in Dimaya and Johnson,
“ordinary-case requirement and an ill-defined risk threshold” compel conclusion that
§ 924(c)(3)(B) is unconstitutionally vague (internal quotation marks omitted)).
         Neither Eshetu nor Salas address whether continued reliance on an ordinary-case
standard makes sense for a predicate offense of a pending § 924(c)(1)(A) crime, or whether
the canon of constitutional avoidance mandates a different interpretation of the statute. In
Eshetu, the D.C. Circuit determined that it was bound by its own precedent to apply an
ordinary-case approach to § 924(c)(3)(B), “[w]hatever the clean-slate merits” of a different
approach by contrast. United States v. Eshetu, 898 F.3d at 37–38. Both points inform our
discussion, infra, at III.B.1.


                                            19
14-2641-cr
United States v. Barrett


 (2003) (“The Court has repeatedly said that the essence of a
 conspiracy is an agreement to commit an unlawful act.” (alteration
 and internal quotation marks omitted)); United States v. Praddy, 725
 F.3d 147, 153 (2d Cir. 2013) (“The essence of the crime of conspiracy,
 of course, is the agreement to commit one or more unlawful acts.”
 (emphasis in original) (internal quotation marks omitted)); United
 States v. Chimurenga, 760 F.2d at 404. Focusing first on the object
 offense part of the agreement element, a court properly considers
 whether that offense is a categorically violent crime under
 § 924(c)(3)(A). If it is not, that is the end of the categorical inquiry.
 But if the object offense is itself categorically violent—as Hill holds a
 Hobbs Act robbery to be, see supra at 14–15—a court then turns its
 attention to the agreement element’s requirement for two or more
 persons to join in a common scheme to achieve the object.

        As the Supreme Court has observed in explaining why
 conspiracy is punished as a distinct crime, “[c]oncerted action both
 increases the likelihood that the criminal object will be successfully
 attained and decreases the probability that the individuals involved
 will depart from their path of criminality.” Callanan v. United States,
 364 U.S. 587, 593 (1961). Applying that reasoning to conspiracies to
 commit categorically violent crimes, this court has held that the
 agreement element of conspiracy so heightens the likelihood that the
 violent objective will be achieved that the conspiracy itself can be
 held categorically to present a substantial risk of physical force. See
 United States v. Chimurenga, 760 F.2d at 404 (“The existence of a
 criminal grouping increases the chances that the planned crime will
 be committed beyond that of a mere possibility.             Because the
 conspiracy itself provides a focal point for collective criminal action,
 attainment of the conspirators’ objectives becomes instead a



                                   20
14-2641-cr
United States v. Barrett


    significant probability.” (emphasis in original)).                     In sum, the
    agreement element means, “in each case that the [Hobbs Act robbery
    conspiracy] crime covers,” the risk of force is present. Sessions v.
    Dimaya, 138 S. Ct. at 1211 (emphasis added) (distinguishing
    categorical approach based on elements from approach based on
    hypothetical “ordinary case”).

         Thus, we conclude that Dimaya and Johnson do not preclude
    reliance on our Patino/Chimurenga precedent here because we do not
    employ “ordinary case” analysis to determine if Hobbs Act robbery
    conspiracy is a violent crime as required by § 924(c)(1). Rather, we
    make that determination under traditional categorical analysis by
    reference only to the crime’s elements as applied to both
    § 924(c)(3)(A) and § 924(c)(3)(B). 9 Accordingly, we affirm Barrett’s
    conviction on Count Two.

             B. Barrett’s Hobbs Act Robbery Conspiracy Is a Crime of
                Violence on a Conduct-Specific Application of
                § 924(c)(3)(B)

                 1. A Conduct-Specific Approach to § 924(c)(3)(B) Is a
                 Reasonable Construction of the Statute that Avoids
                 Constitutional Concerns Identified in Dimaya and
                 Johnson

         Even if the elements of Hobbs Act robbery conspiracy did not
    thus establish it as a crime of violence on a traditional categorical
    application of § 924(c)(3)(A) and § 924(c)(3)(B), Barrett would not be


9To the extent our precedent has not always been clear in identifying a conspiracy’s object
offense as a violent crime under the elements definition of § 924(c)(3)(A), we do not pursue
the point. We conclude only that, where, as here, the elements establish an object offense
as a categorial crime of violence under § 924(c)(3)(A), the conspiracy itself—by virtue of its
agreement element—is a categorical crime of violence under § 924(c)(3)(B).



                                             21
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United States v. Barrett


 entitled to relief from his § 924(c)(1) conviction on Count
 Two. Section 924(c)(3)(B) can be applied to a defendant’s case-
 specific conduct, with a jury making the requisite findings about the
 nature of the predicate offense and the attending risk of physical
 force being used in its commission.                        Such a conduct-specific
 approach avoids both the Sixth Amendment right-to-trial and due
 process vagueness concerns identified in Dimaya and Johnson.

        Barrett argues that a conduct-specific approach is foreclosed by
 our precedent categorically identifying crimes of violence under
 § 924(c)(3)(B). See United States v. Ivezaj, 568 F.3d 88, 95 (2d Cir. 2009);
 United States v. Acosta, 470 F.3d at 134–35. But these cases followed
 that course before Dimaya and Johnson held that the accepted
 categorical       approach       to    residual      clauses—the          ordinary-case
 standard—was unconstitutionally vague.                       The parties agree that
 Dimaya “raises serious constitutional questions” as to the continued
 viability of a categorical approach to § 924(c)(3)(B). Gov. 2018 Supp.
 Br. 6; Def. 2018 Supp. Br. 4. Where an intervening Supreme Court
 decision thus casts doubt on our prior precedent, a panel of this court
 is not foreclosed from considering whether the statutory text might
 be construed in a different way to avoid the constitutional concerns
 identified by the Supreme Court. See generally In re Zarnel, 619 F.3d
 156, 168 (2d Cir. 2010). 10 Indeed, it is an “elementary rule” in
 construing acts of Congress that “every reasonable construction
 must      be     resorted     to,     in   order      to   save      a   statute      from
 unconstitutionality.” Skilling v. United States, 561 U.S. 358, 406 (2010)


10In deciding it was bound by its own precedent on this issue, the D.C. Circuit in Eshetu
was apparently applying a more stringent standard for overruling a prior panel decision.
See United States v. Eshetu, 898 F.3d at 38 (requiring an intervening Supreme Court decision
to establish that the prior panel decision “is clearly an incorrect statement of current law.”
(quoting United States v. Dorcely, 454 F.3d 366, 373 n.4 (D.C. Cir. 2006)).


                                             22
14-2641-cr
United States v. Barrett


 (emphasis and internal quotation marks omitted); see INS v. St. Cyr,
 533 U.S. 289, 300 (2001) (recognizing court’s obligation to identify
 statutory construction that avoids constitutional problems if it is
 “fairly possible” to do so (internal quotation marks omitted)).

        Following that mandate, we begin with the Supreme Court’s
 acknowledgment in both Dimaya and Johnson that no constitutional
 vagueness inheres in a substantial-risk definition of a crime of
 violence when applied to case-specific conduct.           See Sessions v.
 Dimaya, 138 S. Ct. at 1215 (observing that “‘we do not doubt’ the
 constitutionality of applying [a] ’substantial risk [standard] to real-
 world conduct’” (second brackets in original) (quoting Johnson v.
 United States, 135 S. Ct. at 2561)). Such a conduct-specific application
 is, in fact, well suited to § 924(c)(3)(B) because the statute applies only
 to the predicate offense of a pending § 924(c)(1)(A) charge. To return
 a guilty verdict on such a firearms charge, a jury must find that the
 defendant used the firearm during and in relation to a “crime of
 violence” as defined in § 924(c)(3). Before Dimaya and Johnson, it was
 thought that the identification of a predicate offense as a crime of
 violence was a question of law for categorical determination by the
 court. If, following Dimaya and Johnson, a court can no longer make
 such a determination of law under § 924(c)(3)(B)’s residual definition
 (because the categorical ordinary-case standard is unconstitutionally
 vague), then § 924(c)(3)(B) is reasonably construed to present a
 question of fact to be found by the trial jury according to the
 defendant’s “real-world conduct.”        Id. (internal quotation marks
 omitted); cf. United States v. Gaudin, 515 U.S. 506, 518–23 (1995)
 (holding that materiality element of fraud, long decided as question
 of law by courts, was question of fact that had to be submitted to
 jury). Submitting § 924(c)(3)(B) determinations to trial juries for



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United States v. Barrett


 conduct-specific            determinations      thus   avoids   not   only   the
 constitutional vagueness concerns that Dimaya and Johnson located
 in the categorical ordinary-case standard, but also the Sixth
 Amendment right-to-trial concern that originally prompted the
 Supreme Court to mandate a categorical approach to residual
 definitions of crimes of violence.

        The categorical approach was introduced in Taylor v. United
 States, 495 U.S. 575 (1990). At issue there was not ACCA’s residual
 clause, but one of the specified crimes of conviction that immediately
 precede        the        clause,   specifically,   burglary.   See   18   U.S.C.
 § 924(e)(2)(B)(ii) (quoted supra at 13 n.5). Concluding that ACCA
 referred to burglary in the generic sense, not as defined by each of
 the 50 states, the Supreme Court held that the government could not
 introduce evidence about the “particular facts” of a defendant’s prior
 crime to prove that his conviction was for generic burglary. Taylor v.
 United States, 495 U.S. at 600.               Instead, the Court mandated a
 “categorical approach” that “look[ed] only to the fact of conviction
 and the statutory definition,” i.e., the elements, of generic burglary.
 Id. at 602; see id. at 598–99 (identifying “elements” of generic burglary
 and holding that if defendant “is convicted of any crime . . . having
 the[se] basic elements,” he has been convicted of burglary for
 purposes of ACCA).

        In rejecting a conduct-specific approach, the Court cited the
 statutory text, which specifically referred to “convictions” rather
 than conduct, as well as legislative history, which had once included
 a generic definition of burglary in ACCA. Id. at 600–01. But more
 potent still were the perceived “practical difficulties and potential
 unfairness of a factual approach,” especially the specter of
 evidentiary hearings and judicial factfinding reaching beyond the


                                            24
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United States v. Barrett


 record of conviction and possibly “abridging [the defendant’s Sixth
 Amendment] right to a jury trial.” Id. at 601; accord Shepard v. United
 States, 544 U.S. 13, 25 (2005) (observing, in context of prior state
 conviction based on guilty plea, that subsequent judicial factfinding
 as to “what the defendant and state judge must have understood as
 the factual basis” implicated “Sixth and Fourteenth Amendments[‘]
 guarantee [that] a jury [will] stand[] between a defendant and the
 power of the State . . . to increase the ceiling of a potential sentence”).
 In short, constitutional avoidance informed the original categorical-
 approach mandate.         See Sessions v. Dimaya, 138 S. Ct. at 1217
 (acknowledging that Supreme Court adopted a categorical approach
 to identification of violent crimes “in part to avoid the Sixth
 Amendment concerns that would arise from . . . courts’ making
 findings of fact that properly belong to juries” (internal quotation
 marks and alteration omitted)); see id. at 1256 (Thomas, J., with
 Kennedy, Alito, JJ., dissenting) (observing that “categorical approach
 was never really about the best reading of the text. . . . [T]his Court
 adopted that approach to avoid a potential Sixth Amendment
 problem with sentencing judges conducting minitrials to determine
 a defendant’s past conduct.”).

        In James v. United States, 550 U.S. 192, the Supreme Court
 extended Taylor’s categorical approach to ACCA’s residual clause,
 but doing so required modification.            To make a categorical
 determination of when a statutorily unspecified crime—in that case
 attempted burglary—posed “a serious potential risk of physical
 injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii), James held that “the
 proper inquiry is whether the conduct encompassed by the elements
 of the offense, in the ordinary case, presents a serious potential risk of
 injury to another,” James v. United States, 550 U.S. at 208 (emphasis



                                    25
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United States v. Barrett


 added). Thus, unlike the traditional categorical approach, which
 considered how the elements of a crime apply in every case, the
 ordinary-case standard did not demand “that every conceivable
 factual offense covered by a statute . . . necessarily present a serious
 potential risk of injury before the offense can be deemed a violent
 felony.”       Id. at 207–08 (rejecting argument that “all cases” of
 attempted burglary must present that risk (emphasis in original)).
 Dissenting in James, Justice Scalia suggested that ACCA’s residual
 clause was unconstitutionally vague as applied to such a
 hypothetical “ordinary case.” Id. at 230 (Scalia, J., dissenting).

        Within a decade, that view would command a Supreme Court
 majority: “We are convinced that the indeterminacy of the wide-
 ranging inquiry required by the residual clause both denies fair
 notice to defendants and invites arbitrary enforcement by judges.”
 Johnson v. United States, 135 S. Ct. at 2557. In reaching this conclusion,
 the Supreme Court observed, as noted supra at 22–23, that it did “not
 doubt the constitutionality of laws that call for the application of a
 qualitative standard such as ‘substantial risk’ to real-world conduct.”
 Id. at 2561. The problem was with the application of that standard
 “to an idealized ordinary case of the crime.” Id.

        Because the elements necessary to determine the
        imaginary ideal are uncertain both in nature and degree
        of effect, this abstract inquiry offers significantly less
        predictability than one that deals with the actual, not
        with an imaginary condition other than the facts.

Id. (internal quotation marks omitted).

        The Johnson majority, however, declined to “save the residual
 clause from vagueness” by construing its risk requirement by
 reference to defendant’s actual conduct rather than an idealized case.


                                    26
14-2641-cr
United States v. Barrett


 Id.; see id. at 2577–80 (Alito, J., dissenting) (urging alternative
 construction). It explained that (1) the government had not argued
 for abandonment of a categorical approach in residual-clause cases,
 see id. at 2562; and (2) “good reasons” supported Taylor’s adoption of
 a categorical approach, specifically, (a) ACCA’s textual emphasis on
 convictions rather than conduct, and (b) “the utter impracticability
 of requiring a sentencing court to reconstruct, long after the original
 conviction, the conduct underlying that conviction,” id.

        Sessions v. Dimaya relied on Johnson to hold unconstitutionally
 vague § 16(b)’s residual clause—there being applied to a prior state
 burglary conviction supporting a deportation order. See 138 S. Ct. at
 1210–11. The problem, as in Johnson, was not that the residual clause
 identified crimes by reference to a substantial-risk standard but,
 rather, that a categorical identification of such risk depended on an
 idealized ordinary case. Dimaya observed that there was “‘no reliable
 way’ to discern what the ordinary version of any offense looked
 like,” without which “no one could tell how much risk the offense
 generally imposed.” Id. at 1214 (quoting Johnson v. United States, 135
 S. Ct. at 2558).          That, in turn, made it impossible to identify a
 categorical case of “‘substantial risk’ . . . in a way consistent with due
 process.” Id. at 1215–16 (quoting Johnson v. United States, 135 S. Ct. at
 2561).

        As      in    Johnson,    dissenters   suggested   abandoning   the
 constitutionally suspect ordinary-case standard in favor of a
 conduct-specific inquiry.           See id. at 1252–56 (Thomas, J., with
 Kennedy, Alito, JJ., dissenting) (“Instead of asking whether the
 ordinary case of an alien’s offense presents a substantial risk of
 physical force, courts should ask whether the alien’s actual
 underlying conduct presents a substantial risk of physical force.”). A


                                         27
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United States v. Barrett


 plurality declined to do so, citing four reasons. First, as in Johnson,
 the government had not urged such a construction of the residual
 clause. To the contrary, at “every step” of the Dimaya litigation, the
 government had “conceded . . . the correctness of [the ordinary-case]
 construction,” and this, despite “the Johnson dissent [having] laid out
 the opposite view.”              Id. at 1217. 11        Second, a conduct-specific
 construction would “generate its own constitutional questions,”
 specifically, “the Sixth Amendment concerns that would arise from
 sentencing courts’ making findings of fact that properly belong to
 juries.” Id. (internal quotation marks omitted). 12 Third, the phrase
 “by its nature” in § 16(b) “demands a categorical approach” because
 it “tells courts to figure out what an offense normally—or . . .
 ordinarily—entails, not what happened to occur on one occasion.”
 Id. at 1217–18 (internal quotation marks omitted). Finally, “the utter
 impracticability”          and       “daunting         difficulties       of     accurately
 reconstructing, often many years later, the conduct underlying a
 conviction” is as great under § 16(b) as under ACCA. Id. (internal
 quotation marks and alterations omitted).

        As this summary makes evident, the mandate for a categorical
 approach to residual definitions of violent crimes has developed in a
 singular context: judicial identification of what crimes (most often,
 state crimes) of prior conviction fit federal definitions of violent

11While the government’s concession informed the Court’s decision not to consider a
conduct-specific construction of § 16(b)’s residual clause, members of the majority
acknowledged that the government could not foreclose such consideration. See id.
(plurality opinion); see also id. at 1232–33 (Gorsuch, J., concurring in part) (observing that
“normally courts do not rescue parties from their concessions,” but expressing openness
“to different arguments about . . . proper reading of language like this . . . in another case”).

12The Dimaya plurality identified this constitutional concern despite the fact that the right
to a jury trial did not apply to the removal proceeding there at issue, explaining that
“§ 16(b) is a criminal statute, with criminal sentencing consequences” and had to be
interpreted consistently, whether encountered in a criminal or noncriminal context. Id.


                                              28
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United States v. Barrett


 crimes so as to expose a defendant to enhanced penalties or other
 adverse consequences in subsequent federal proceedings. In no case
 has the Supreme Court considered a residual definition of violent
 crime that, like § 924(c)(3)(B), defines a predicate offense for a crime
 of pending prosecution.

        The distinction is significant. As the cited cases repeatedly
 emphasize, post-conviction, a judicial identification of crimes of
 violence must be categorical because a conduct-specific factual
 inquiry at that point would raise Sixth Amendment concerns. A
 categorical approach to residual definitions, however, may not be
 possible even in that context because, as Dimaya/Johnson hold, the
 “ordinary         case”   standard   devised   for   that   purpose    is
 unconstitutionally vague. See id. at 1254 (Thomas, J., with Kennedy,
 Alito, JJ., dissenting) (“The Court’s attempt to avoid the Scylla of the
 Sixth Amendment steered it straight into the Charybdis of the Fifth.
 The ordinary-case approach that was created to honor the individual
 right to a jury is now, according to the Court, so vague that it
 deprives individuals of due process.”).

        Section 924(c)(3), however, is not concerned with prior
 convictions.         It pertains only to § 924(c)(1) crimes of pending
 prosecution. This means that a conduct-specific identification of a
 predicate offense as a crime of violence can be made without raising
 either of the constitutional concerns that have informed the Supreme
 Court’s categorical-approach jurisprudence. The Sixth Amendment
 concern is avoided because the trial jury, in deciding whether a
 defendant is guilty of using a firearm “during and in relation to any
 crime of violence,” 18 U.S.C. § 924(c)(1)(A), can decide whether the
 charged predicate offense is a crime of violence as defined in
 § 924(c)(3)(B), i.e., whether the felony offense “by its nature, involves


                                      29
14-2641-cr
United States v. Barrett


 a substantial risk that physical force against the person or property
 of another may be used in the course of committing the offense,” 18
 U.S.C. § 924(c)(3)(B). As for due process, we have already
 highlighted the Supreme Court’s acknowledgement in both Dimaya
 and Johnson that a finding of “substantial risk” of physical injury can
 be made based on “real-world conduct” without any of the
 vagueness concerns raised by ordinary-case review. See supra at 22–
 23, 26.

        Barrett nevertheless maintains that the statutory text precludes
 conduct-specific application, specifically, the phrase “by its nature,”
 which modifies the felony offenses qualifying as crimes of violence
 under § 924(c)(3)(B). We are not persuaded. To be sure, the Dimaya
 plurality construed similar language in 18 U.S.C. § 16(b) to
 “demand[] a categorical approach,” citing that as one of four reasons
 for not abandoning the categorical approach in favor of a conduct-
 specific inquiry. Sessions v. Dimaya, 138 S. Ct. at 1217. But the
 plurality had already concluded that such a substitution would not
 achieve       constitutional avoidance   because      a   conduct-specific
 application of § 16(b) to a crime of prior conviction would only
 replace one constitutional concern (vagueness) with another
 (abridgment of the right to trial by jury). See id.

        That is not the case here. While constitutional vagueness may
 preclude categorical application of § 924(c)(3)(B) after Johnson and
 Dimaya, a conduct-specific application raises no Sixth Amendment
 concerns because all relevant factfinding would be made by the trial
 jury. Thus, constitutional avoidance is not an impossibility here, as
 the plurality thought it was in Dimaya.




                                    30
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United States v. Barrett


        We recognize that the word “nature” as used in the phrase “by
 its nature” is commonly understood to mean “the basic or inherent
 features, character, or qualities of something,” Oxford Dictionary of
 English 1183 (3d ed. 2010); a “normal and characteristic quality,”
 Webster’s Third New International Dictionary 1507 (2002). We also
 recognize that the “something” whose nature is referenced in
 § 924(c)(3)(B) is the predicate “offense.”                    But nothing in these
 definitions        indicates      whether        the    offense       whose       inherent
 characteristics are to be considered is the generic crime or the
 particular one charged. In Nijhawan v. Holder, 557 U.S. 29 (2009), the
 Supreme Court recognized that words such as “crime,” “felony,” and
 “offense” can be used in both respects, “sometimes refer[ring] to a
 generic crime . . . and sometimes refer[ring] to the specific acts in
 which an offender engaged on a specific occasion.” Id. at 33–34.
 Thus, while both constructions are reasonable, because a generic—
 i.e., ordinary-case—construction raises a constitutional vagueness
 concern, while a conduct-specific approach does not, we heed the
 principle of constitutional avoidance and conclude that the
 identification of a crime of violence under § 924(c)(3)(B) is properly
 made by a jury on a conduct-specific basis. 13

        Nor is a different conclusion warranted because a court would
 decide whether a predicate offense was a crime of violence under
 § 924(c)(3)(A), while the jury would decide whether it was a crime of
 violence under § 924(c)(3)(B). Such divisions are not uncommon
 when related matters raise questions of both law and fact. See, e.g.,


13See Chapman v. United States, No. 1:03-cr-296-6(LMB), 2018 WL 3470304, at *12–13 (E.D.
Va. July 19, 2018) (concluding that, after Dimaya, constitutional avoidance compels
conduct-specific approach to § 924(c)(3)(B)); see also United States v. Blanco, 16 Cr. 408 (CS)
(S.D.N.Y.) (submitting question of whether predicate offense was crime of violence under
§ 924(c)(3)(B) to jury).


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United States v. Barrett


 United States v. Davis, 726 F.3d 357, 368 (2d Cir. 2013) (holding that
 whether crime took place within special maritime and territorial
 jurisdiction of United States requires two separate inquiries, one “a
 factual question for the jury,” other a “legal question that a court may
 decide on its own”). Indeed, because the § 924(c)(3) definitions of a
 crime of violence apply only in the context of a pending
 § 924(c)(1)(A) prosecution, both definitions are necessarily linked to
 a jury assessment of whether the alleged predicate crime of violence
 was, in fact, committed. See generally Johnson v. United States, 779 F.3d
 125, 129–30 (2d Cir. 2015) (holding that so long as proof is legally
 sufficient to allow jury to find that predicate § 924(c)(1)(A) offense
 was committed, defendant need not be separately charged with and
 convicted of that offense).

        Barrett argues that a conduct-specific approach would lead to
 inconsistent results, with certain crimes being found to satisfy the
 § 924(c)(3)(B) definition in some cases but not in others. But the
 distinction would be based on a jury finding of real-world conduct,
 which properly distinguishes among criminal cases charging the
 same crime.               See Johnson v. United States, 135 S. Ct. at 2561
 (recognizing that criminal culpability can depend on “matter of
 degree” (internal quotation marks omitted)).                            Indeed, it is far
 preferable for a jury to be able to distinguish between crimes, such as
 extortion threatening only reputational harm and extortion
 employing violent, even deadly, force, see 18 U.S.C. § 1951(a), than
 for it to be told, as a matter of law, that neither offense is a violent
 crime. 14


14Conduct-specific jury determinations avoid that feature of the categorical approach most
criticized by respected judges: compelling “willful blindness” to known facts. United States
v. Lewis, 720 F. App’x 111, 120 (3d Cir. 2018) (Roth, J., concurring); see United States v. Davis,



                                               32
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United States v. Barrett


        Accordingly, because a § 924(c)(3)(B) determination can be
 made by a trial jury based on a defendant’s real-world conduct
 without raising either due process or Sixth Amendment concerns,
 Dimaya and Johnson do not necessarily compel invalidation of
 Barrett’s conviction on Count Two.

             2. The Failure To Submit the § 924(c)(3)(B) Determination
             to the Jury in this Case Was Harmless Error

        Even if a conduct-specific § 924(c)(3)(B) determination can be
made by a jury, that was not done here. Nevertheless, we can affirm
Barrett’s Count Two conviction because the failure to submit a
§ 924(c)(3)(B) inquiry to the jury was harmless error beyond a
reasonable doubt.

        The Supreme Court has held that the “omission of an element”
from a jury charge “is subject to harmless-error analysis.” Neder v.
United States, 527 U.S. at 15; accord United States v. Agrawal, 726 F.3d
235, 257 (2d Cir. 2013). The relevant inquiry “is whether it appears
beyond a reasonable doubt” that the omission “did not contribute to
the verdict obtained.” Neder v. United States, 527 U.S. at 15 (internal
quotation marks omitted). In conducting that inquiry, a court does


875 F.3d 592, 595 (11th Cir. 2017) (opinion by Carnes, C.J.) (observing that categorical
approach carries judges “down the rabbit hole . . . to a realm where we must close our eyes
as judges to what we know as men and women”); United States v. Chapman, 866 F.3d 129,
138 (3d Cir. 2017) (Jordan, J., concurring) (stating that categorical approach “often asks
judges to feign amnesia,” to “ignore facts already known and instead proceed with eyes
shut”); United States v. Faust, 853 F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring)
(observing that categorical approach “can lead courts to reach counterintuitive results”);
United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring) (stating
that categorical approach has caused judges to “swap[] factual inquiries for an endless
gauntlet of abstract legal questions,” resulting in their “paradoxically finding even the
worst and most violent offenses not to constitute crimes of violence”). Even assuming that
this unsatisfactory feature is compelled by the Sixth Amendment for post-conviction
judicial identifications of crimes of violence, it need not obtain with respect to jury
identifications based on real-world conduct proved at defendant’s trial.


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not itself weigh the evidence.       It asks only “whether the record
contains evidence that could rationally lead to a contrary finding with
respect to the omitted element.” Id. at 19. If it could not, then the
omission is harmless beyond a reasonable doubt. See id.

        That is this case. As detailed in the fact section of this opinion,
violence was the very hallmark of the charged conspiracy. Each of
the eight robberies and three attempted robberies discussed supra at
6–9 used, attempted to use, or planned to use physical force. Victims
were routinely punched, sometimes with sufficient force to break
bones, draw blood, or result in a loss of consciousness. Victims’ lives
were threatened at knifepoint and gunpoint. Baseball bats were used
to shatter the glass windows of a victim’s car while he was in it and
then to threaten him with physical injury.          Guns were not only
brandished, but also discharged, in one case point blank to kill a
robbery target who had evaded the conspirators’ attempt to rob him
of cash that he was transporting. This real-world evidence can only
support a finding that the charged conspiracy, by its nature, involved
a substantial risk of the use of physical force. Indeed, no other
conclusion is rationally possible. Thus, the failure to submit the
§ 924(c)(3) inquiry to the jury is necessarily harmless error beyond a
reasonable doubt.

        Accordingly, we affirm Barrett’s conviction on Count Two
because (1) following our precedent by reference only to the elements
of a conspiracy to commit Hobbs Act robbery, that offense is a
categorical crime of violence as defined by § 924(c)(3)(A) together
with § 924(c)(3)(B); and (2) § 924(c)(3)(B) is not invalid after
Dimaya/Johnson because it can reasonably be construed to warrant
conduct-specific application by a trial jury, and the trial evidence here




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admits no rational finding but that the Hobbs Act robbery conspiracy
was a crime of violence under that statutory section.

                              CONCLUSION

        To summarize, we hold as follows:

      1. Our decision in United States v. Hill, 890 F.3d 51 (2d Cir. 2018),
  compels the conclusion that the predicate substantive Hobbs Act
  robberies supporting Barrett’s § 924(c)(1)(A) and (j) convictions on
  Counts Four, Six, and Seven are categorical crimes of violence as
  defined in 18 U.S.C. § 924(c)(3)(A).

      2. The predicate Hobbs Act robbery conspiracy supporting
  Barrett’s § 924(c)(1)(A) conviction on Count Two is a crime of
  violence because,

             a. our precedent recognizes a conspiracy to commit a
           categorical crime of violence as itself a categorical crime of
           violence, and we can apply that precedent here to
           § 924(c)(3)(A) together with § 924(c)(3)(B) by reference only to
           the elements of a Hobbs Act robbery conspiracy;

             b. § 924(c)(3)(B) is not unconstitutionally vague after
           Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and Johnson v. United
           States, 135 S. Ct. 2551 (2015), because it can be construed to
           warrant conduct-specific application by the jury that decided
           Barrett’s § 924(c)(1)(A) guilt, thereby avoiding both the due
           process and Sixth Amendment concerns noted in those cases;
           and

             c. although no § 924(c)(3)(B) inquiry was submitted to the
           jury in this case, the error was harmless beyond a reasonable


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United States v. Barrett


           doubt because the record evidence of beatings, shootings, and
           murder in the course of the robbery conspiracy admits no
           other rational finding but that the charged conspiracy was a
           crime of violence under that statutory definition.

        Accordingly, for the reasons stated in this opinion, as well as
the summary order filed today, we AFFIRM the judgment of
conviction.




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