14‐2641‐cr
United States 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: AUGUST 30, 2019



Before: WINTER, RAGGI, and DRONEY, Circuit Judges.
                               ________________



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14‐2641‐cr
United States v. Barrett

        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 challenged 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 argued 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
maintained was compelled by Sessions v. Dimaya, 138 S. Ct. 1204
(2018), and Johnson v. United States, 135 S. Ct. 2551 (2015). This court
rejected this argument for reasons explained in United States v. Barrett,
903 F.3d 166 (2d Cir. 2018). Our judgment affirming defendant’s
conviction has now been vacated by the Supreme Court, and the case
remanded for further consideration in light of United States v. Davis,
139 S. Ct. 2319 (2019). Upon such consideration, the court concludes
that Barrett’s Count Two conviction for using firearms in the
commission of Hobbs Act robbery conspiracy must be vacated, but
that his conviction continues to warrant affirmance in all other
respects.

         AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                           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.

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United States v. Barrett




REENA RAGGI, Circuit Judge:

        In 2018, this court affirmed defendant Dwayne Barrett’s
conviction after trial in the United States District Court for the
Southern District of New York (Richard J. Sullivan, Judge) for multiple
counts of conspiratorial and substantive Hobbs Act robbery and
related counts of using a firearm during and in relation to these
robbery crimes. See 18 U.S.C. §§ 924(c), 924(j), 1951; United States v.
Barrett, 903 F.3d 166 (2d Cir. 2018). The Supreme Court has now
vacated our judgment and remanded for further consideration in
light of United States v. Davis, 139 S. Ct. 2319 (2019). See Barrett v.
United States, 139 S. Ct. 2774 (2019). Having given that consideration,
we now vacate Barrett’s Count Two § 924(c) conviction for using a
firearm in committing Hobbs Act robbery conspiracy—the only count
of conviction that Barrett challenges in light of Davis. For the reasons
stated in our 2018 opinion, and the summary order filed that same
day, see United States v. Barrett, 750 F. App’x 19 (2d Cir. 2018), we
affirm Barrett’s conviction in all other respects and remand for
resentencing in light of our partial vacatur.1

        We are obliged to vacate Barrett’s Count Two conviction
because Davis precludes us from concluding, as we did in our original
opinion, that Barrett’s Hobbs Act robbery conspiracy crime qualifies
as a § 924(c) crime of violence. At the outset, we note that there can
be no question but that the particular Hobbs Act robbery conspiracy
committed by Barrett and his co‐conspirators was violent, even
murderous.          See United States v. Barrett, 903 F.3d at 170–71, 184
(detailing how violence was “hallmark of the charged conspiracy,”

1We assume familiarity with our earlier opinion and order, which detail the facts of
Barrett’s crimes and quote the statutes relevant to his convictions.


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United States v. Barrett

with robbers routinely using “guns, knives, baseball bats, and their
fists,” to break victims’ bones, render them unconscious, and “in one
case point blank to kill a robbery target”). There is also no question,
however, that, in Davis, 139 S. Ct. 2319 (2019), the Supreme Court held
that a crime could not be identified as a crime of violence under
§ 924(c)—even by a trial jury—on a case‐specific basis. The decision
must be made categorically.          In so holding, the Supreme Court
acknowledged that a case‐specific approach to § 924(c), particularly
to the statute’s residual clause, see 18 U.S.C. § 924(c)(3)(B), would
avoid both the Sixth Amendment and vagueness concerns that have
doomed other, similarly worded residual clauses, see United States v.
Davis, 139 S. Ct. at 2327 (citing Sessions v. Dimaya, 138 S. Ct. 1204
(2018); Johnson v. United States, 135 S. Ct. 2551 (2015)). Nevertheless,
the Court held that the text, context, and history of § 924(c) could not
support such an approach. See id. at 2327–33.

        In Barrett, this court had relied, at least in part, on a case‐specific
approach to recognize the charged Hobbs Act robbery conspiracy as
a crime of violence under § 924(c)(3)(B). See United States v. Barrett,
903 F.3d at 178–84. The decision was hardly quixotic. Two other
circuit courts have done the same. See United States v. Douglas, 907
F.3d 1 (1st Cir. 2018), vacated, 139 S. Ct. 2775 (2019); Ovalles v. United
States, 905 F.3d 1231 (11th Cir. 2018) (en banc). And in Davis itself, four
members of the Supreme Court reached the same conclusion. See
United States v. Davis, 139 S. Ct. at 2336–55 (Kavanaugh, J., with
Roberts, C.J., Thomas and Alito, JJ., dissenting). Still, four represents
a minority viewpoint within the Supreme Court. Insofar as the Court
has now instructed us to reconsider Barrett’s appeal of conviction in
light of Davis, we are obliged to follow the majority’s holding that
(1) § 924(c)(3)(B) “commands the categorical approach,” id. at 2328;
and (2) under the particular form of categorical approach applied to


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United States v. Barrett

residual clauses, i.e., the “ordinary case” inquiry identified in James v.
United States, 550 U.S. 192, 208 (2007), “§ 924(c)(3)(B) is
unconstitutionally vague,” United States v. Davis, 139 S. Ct. at 2336.

        Invited to brief the effect of Davis’s holding on this appeal, the
prosecution and the defense agree that Barrett’s Count Two
conviction for using a firearm in committing Hobbs Act robbery
conspiracy must be vacated because the identification of that crime as
one of violence depends on the § 924(c)(3)(B) residual clause
definition, which Davis has now pronounced unconstitutionally
vague.

        Neither party argues that Davis requires vacatur of Barrett’s
Count Four, Six, or Seven § 924(c) convictions. This is not surprising.
The predicate offense for each of these crimes is substantive Hobbs Act
robbery, which can be identified as a crime of violence under
§ 924(c)(3)(A) applying the traditional, elements only, categorical
approach not at issue in Davis. See United States v. Hill, 890 F.3d 51,
53, 60 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019). Thus, for the
reasons stated in our original opinion, we again affirm Barrett’s
convictions on Counts Four, Six, and Seven. See United States v.
Barrett, 903 F.3d at 174.2


2In upholding Barrett’s Count Seven § 924(j) conviction for causing death in the course of
a violation of § 924(c), we summarily rejected his argument that the district court erred in
imposing a 25‐year consecutive sentence for that crime because § 924(j) does not
incorporate the penalty enhancements of § 924(c)(1)(C)(i), or the consecutive sentencing
mandate of § 924(c)(1)(D)(ii). Because this is the fourth panel to reach that conclusion
summarily, the government asks that we publish in a precedential opinion that part of our
summary order construing § 924(j) to incorporate § 924(c)’s sentencing enhancements. See
Gov’t Supp. Br. at 6. We grant that request by here repeating what we said in our summary
order:

        In sentencing Barrett under § 924(j), the district court cited United States v.
        Young, 561 F. App’x 85, 93–94 (2d Cir. 2014), a non‐precedential summary



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United States v. Barrett

         As to Barrett’s Count Two conviction, however, Davis compels
vacatur. The Supreme Court’s unequivocal rejection of a case‐specific
approach to § 924(c)(3)(B) precludes further reliance on the particular
murderous violence of Barrett’s robbery conspiracy to identify that
offense as a crime of violence predicate under § 924(c)(3)(B).

         Our original Barrett decision to affirm was not, however, based
only on a now‐discredited case‐specific application of § 924(c)(3)(B).
Our first ground for affirming Barrett’s Count Two conviction was a
determination that Hobbs Act robbery conspiracy could be
categorically identified as a crime of violence by reference only to its
elements, thereby avoiding the vagueness concerns of the ordinary‐
case form of categorical analysis rejected in Johnson, Dimaya, and now
Davis.      See id. at 176–77.             Barrett’s elements‐based conclusion,
however, depended on both § 924(c)(3)(A) and § 924(c)(3)(B). We
reasoned that where the elements of a conspiracy’s object crime (here,
Hobbs Act robbery) establish it as a categorical crime of violence
under § 924(c)(3)(A), the agreement element of a conspiracy
categorically establishes the “substantial risk” of violence under
§ 924(c)(3)(B). See id.

         The Supreme Court did not discuss, much less expressly reject,
this hybrid categorical approach in Davis. This is hardly surprising;
the matter was not before it. Nevertheless, Davis gives us reason to
think that we can no longer rely on such a categorical approach to


         order construing § 924(j) to incorporate the § 924(c) penalty enhancements.
         Other panels of this court recently reached the same conclusion, again
         summarily. See United States v. Ventura, No. 15‐2675, 2018 WL 3814729, at
         *2 (2d Cir. Aug. 10, 2018); United States v. Nina, 734 F. App’x 27, 36 (2d Cir.
         2018). While Barrett urges us to reject Young’s, Ventura’s, and Nina’s
         reasoning, we are not persuaded.

United States v. Barrett, 750 F. App’x at 23.


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14‐2641‐cr
United States v. Barrett

affirm Barrett’s conviction on Count Two.                    As the government
observes, “[d]espite the obvious logic” of this court’s elements
analysis, “it still necessarily depends” in part on § 924(c)(3)(B), which
Davis leaves “no longer valid in any form.” Gov’t Supp. Br. at 3
(quoting Davis’s holding “that § 924(c)(3)(B) is unconstitutionally
vague,” and its pronouncement that “a vague law is no law at all,”
139 S. Ct. at 2323, 2336)).               The conclusion is only reinforced by
language in Davis referencing the “ordinary case” inquiry as the
required categorical approach in applying residual clauses such as
§ 924(c)(3)(B). See United States v. Davis, 139 S. Ct. at 2326 (observing
that “ACCA’s residual clause required judges to use a form of what
we’ve called the ‘categorical approach’ to determine whether an
offense qualified as a violent felony” (emphasis added)); id. (stating
that “[f]or years, almost everyone understood § 924(c)(3)(B) to require
exactly the same [ordinary‐case] categorical approach that this Court
found problematic in the residual clauses of the ACCA and § 16”
(emphasis added)).             Might the Supreme Court have made these
“requirement” observations in Davis without considering the
possibility of using an elements‐only approach to identify a
conspiracy        to       commit     a    categorically   violent   crime   under
§ 924(c)(3)(A)         as    itself   a    categorically   violent   crime under
§ 924(c)(3)(B)?            Perhaps.       But the possibility does not support
affirmance of Count Two here.

        If there is anything Davis makes clear, it is the Supreme Court’s
conviction that the substantially similar residual clause definitions for
a violent crime in ACCA, in § 16(b), and in § 924(c)(3)(B) are
unconstitutionally vague, and its aversion to new arguments that
attempt to avoid that conclusion. See id. at 2327 (rejecting
government’s attempt, in aftermath of Court’s decisions holding
ACCA and § 16(b) residual clauses unconstitutionally vague, to


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United States v. Barrett

“abandon[] its longstanding position” that § 924(c)(3)(B) requires
ordinary‐case categorical analysis and to urge “new case‐specific
approach”).

        Thus, however much this court may have thought it possible to
avoid an unconstitutionally vague application of § 924(c)(3)(B) in
Barrett—either by a categorical consideration of only the elements of
the predicate Hobbs Act robbery conspiracy, or by a case‐specific
consideration         of    the   violent       nature   of   Barrett’s   particular
conspiracy—we understand Davis to foreclose both these rationales
for decision.              The Supreme Court having there construed
§ 924(c)(3)(B) (1) not to admit case‐specific application, and (2) to be
unconstitutionally vague without qualification when applied
categorically, this court can no longer rely to any extent on what is
now “no law at all,” id. at 2323, to uphold Barrett’s Count Two
conviction.

        Accordingly, for the reasons stated herein, we VACATE
Barrett’s conviction on Count Two. At the same time, for the reasons
stated in our earlier opinion and summary order, we AFFIRM
Barrett’s conviction in all other respects. We REMAND this case to
the district court for resentencing in light of our partial vacatur.




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