Filed: Sep. 10, 2018
Latest Update: Mar. 03, 2020
Summary: 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
Summary: 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 f..
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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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United States v. Barrett
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).
10
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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.
12
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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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United States v. Barrett
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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United States v. Barrett
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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United States v. Barrett
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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United States v. Barrett
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).
17
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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
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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
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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
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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
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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
23
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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
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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
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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
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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.
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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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United States v. Barrett
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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United States v. Barrett
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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