Monday, September 10th, 2018

Second Circuit decides Barrett

On the heels of its Pereira-Gomez decision on Friday, the Second Circuit issued a new opinion in United States v. Barrett, which is available here.

In Barrett, the Circuit held that 18 U.S.C. 924(c)(3)(B) is not unconstitutionally vague because “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 Court held that the fact that Barrett’s jury did not make a finding regarding force was harmless error in light of the specific facts of his case.  The Circuit further held that a Hobbs Act Robbery conspiracy is a crime of violence because the object of the conspiracy, the Hobbs Act Robbery, is a crime of violence.  “[T]his court has held that the agreement element of conspiracy so heightens the likelihood that the violent objective will be achieved that the conspiracy itself can be held categorically to present a substantial risk of physical force,” and here concludes that Dimaya and Johnson do not alter Circuit precedent that supports the conclusion that a Hobbs Act conspiracy is a crime of violence.

The Second Circuit’s decision in Barrett is in conflict with decisions from other Circuits.  Counsel should continue to preserve the issues regarding 18 U.S.C. 924(c) and whether a conspiracy can be a crime of violence.  Stay tuned here for additional guidance and updates regarding petitions for rehearing.

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