A petition for rehearing, available here, has been filed in United States v. Barrett, No. 14-2641 (2d Cir. 2018), which held that § 924(c)(3)’s residual clause is not unconstitutionally vague and that conspiracy to commit Hobbs Act robbery is not a crime of violence. Practitioners with Johnson petitions pending in district courts should, in appropriate cases, consider requesting stays pending the resolution of this petition.
In addition, the First Circuit has recently held that 924(c)’s residual clause is not void for vagueness. See United States v. Douglas, No. 18-1129 (1st Cir. Oct. 12, 2018), opinion available here. There is now a 3-3 circuit split on this question:
Three Circuits have held that § 924(c)(3)(B) is unconstitutional in light of Dimaya. See United States v. Davis, 903 F.3d 483 (5th Cir. 2018); United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681 (10th Cir. 2018). Three Circuits have upheld the residual clause. See Douglas , ___ F.3d ____, 2018 WL 4941132; United States v. Ovales, 905 F.3d 1231, 2018 WL 4830079 (11th Cir. Oct. 4, 2018); United States v. Barrett, 903 F.3d 166, 2018 WL 4288566 (2d Cir. Sept. 10, 2018).
N.B. The Federal Defenders are co-counsel in Mr. Barrett’s appeal.