FINAL DECISION by the Second Circuit in BARRETT

Because the residual clause of 18 U.S.C.§  924(c)(3)(B)  is unconstitutionally vague, “conspiracy” to commit Hobbs Act robbery isn’t a qualifying 924(c) predicate, since Hobbs Act conspiracy doesn’t meet the elements clause of § 924(c)(c)(3)(A). United States v. Barrett, No. 14-2641-cr, __F.3d__, 2019 WL 4121728  (Aug. 30, 2019). 

The Supreme Court vacated the Second Circuit’s original judgment that affirmed Barrett’s conviction (see 903 F.3d 166). And it remanded the case to the Circuit for further consideration in light of United States v. Davis, 139 S. Ct. 2319 (June 24, 2019). See  Barrett v. United States, 139 S.Ct. 2774 (June 28, 2019) (“petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of United States v. Davis[.]”).

In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme Court struck down 18 U.S.C. § 924(c)(3)(B) — “§ 924(c)’s residual clause” —  as unconstitutionally vague. Id. at 2325, 2336.

In this case, Barrett was convicted after trial for multiple counts of  “conspiratorial and substantive Hobbs Act robbery” and related § 924(c) counts of using a firearm during and in relation to those robberies. In its decision today, the Second Circuit vacates “Barrett’s Count Two § 924(c) conviction for using a firearm in committing Hobbs Act robbery conspiracy … in light of Davis.” Barrett,  2019 WL 4121728 at *1.  Barrett’s “conviction for using a firearm in committing Hobbs Act robbery conspiracy must be vacated because the identification of that crime as one of violence depends on the § 924(c)(3)(B) residual clause definition, which Davis has now pronounced unconstitutionally vague.” Id. at *2.

The Circuit, however, affirmed those 924(c) convictions that were predicated on a  “substantive Hobbs Act robbery.” It states that the substantive Hobbs Act robbery “can be identified as a crime of violence under § 924(c)(3)(A)  applying the traditional, elements only, categorical approach not at issue in Davis.” See Barrett,  2019 WL 4121728 at *2  (citing United States v. Hill, 890 F.3d 51, 53, 60 (2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019)).

Also, in footnote 2 of the Opinion, the Circuit upholds Barrett’s conviction and sentence under § 924(j) “for causing death in the course of a violation of § 924(c),” stating that the district court didn’t err “in imposing a 25-year consecutive sentence for that crime because § 924(j) does not incorporate the penalty enhancements of § 924(c)(1)(C)(i), or the consecutive sentencing mandate of § 924(c)(1)(D)(ii).”

So, in summary, the Circuit holds:

1. Under Davis, § 924(c)(3)(B) is “unconstitutionally vague without qualification[.]” Barrett,  2019 WL 4121728 at *3.
2. “Conspiracy” to commit Hobbs Act robbery isn’t a qualifying 924(c) predicate.
3. Davis overturned the Circuit’s prior holding — in the vacated Barrett decision — that whether the predicate offense is a crime of violence (under 924(c)’s residual clause) was an issue that could be decided by a jury. Davis makes clear that an offense cannot not be identified “as a crime of violence under § 924(c) — even by a trial jury — on a case-specific basis. The decision must be made categorically.” Barrett,  2019 WL 4121728 at *1.
4. § 924(j) doesn’t incorporate the penalty enhancements of § 924(c)(1)(C)(i), or the consecutive sentencing mandate of § 924(c)(1)(D)(ii).

(Unmentioned by the opinion is Matthew B. Larsen of the Federal Defenders of New York who was counsel in the Supreme Court and co-counsel in the Circuit, and also deserves a big congratulations).