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 2 14-2641-cr 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 ...
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