Argued: January 22, 2016
Appeal from the United States District Court for the Southern
District of New York
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).
J. SHARKEY, ESQ., Brooklyn, New York, for
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.
Raggi, Circuit Judge.
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); (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
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
the judgment of conviction is affirmed.
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.
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
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.
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
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
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
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.
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.
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.
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.
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
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.
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.
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
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
timely appeal followed.
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.
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
(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).
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 ...