The Second Circuit issued an opinion this week containing some facially incorrect, and substantively troubling, dicta concerning tits recent decision in Barrett. See United States v. Fiskeu, No. 17-1222 (2d Cir. 2018) (Cabranes, Lynch, Carney) (appeal from Engelmayer, J., S.D.N.Y.), opinion available here.
The narrow, fact-specific holding of Fiseku is that under the “unusual circumstances” presented in the case, police officers did not act unreasonably when they briefly restrained the defendant in handcuffs while conducting a investigatory stop. Slip op. at 18. However, the defendant also raised an ineffective assistance claim because his defense attorney failed to argue that his crime of conviction, conspiracy to commit Hobbs Act robbery, was not a crime of violence within the meaning of U.S.S.G. 4B1.2. The Second Circuit declined to address this claim on direct review.
In so declining, the panel offered this footnote:
In a recent decision, we determined that conspiracy to commit Hobbs Act robbery meets the definition of a “crime of violence” in the Armed Career Criminal Act, 18 U.S.C. § 924(c)(3)(A). United States v. Barrett, — F.3d —, No. 14‐2641‐CR, 2018 WL 4288566, at *1 (2d Cir. Sept. 10, 2018). That provision is worded identically to the “force clause” provision in section 4B1.2(a)(1) of the Guidelines, and so Barrett offers persuasive authority that Fiseku’s crime of conviction similarly meets the Guidelines definition of a “crime of violence.” United States v. Walker, 595 F.3d 441, 443 n.1 (2d Cir. 2010). We have not officially so held, however, and we need not do so in this appeal.
Slip op. at 17 n.7.
This footnote is inaccurate in two important respects:
-The Armed Career Criminal Act (ACCA) is not codified at § 924(c)(3)(A). See 18 U.S.C. § 924(e).
-More seriously, Barrett did not hold that conspiracy to commit Hobbs Act robbery was a “crime of violence” with the meaning of § 924(c)’s force clause, 18 U.S.C. § 924(c)(3)(A). Rather, under two separate theories, it held that the offense can be a crime of violence under § 924(c)’s residual clause 18 U.S.C. § 924(c)(3)(B). First, it held that conspiracy to commit Hobbs Act robbery is a crime of violence under the residual clause because the predicate offense is a crime of violence under the force clause. See, e.g., Barrett, No. 14-2641, slip op. at 16 (concluding that conspiracy to commit Hobbs Act robbery is a crime of violence “by applying the elements of that crime to § 924(c)(3)(A) together with§ 924(c)(3)(B) (emphasis added). Second, it held that the residual clause can be applied by examining case-specific conduct, and that the defendant’s conduct in Barrett rendered his offense a crime of violence. See id. at 22 (“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.”) Thus, Barrett‘s conclusion with respect to conspiracy to commit Hobbs Act robbery relies on its threshold determination that the residual clause of § 924(c) is not constitutionally vague—a conclusion that three other Circuits have thus far rejected.
Practitioners should take care not to be mislead by this inaccurate characterization of Barrett!