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United States v. Barrett

United States Court of Appeals, Second Circuit

September 10, 2018

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.

          Argued: January 22, 2016

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

         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 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.

          Before: Winter, Raggi, and Droney, Circuit Judges.

          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, 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 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 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 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, 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 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 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.

          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 ...

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