14

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USA v. Barrett



## In **the**



# United **States Court**  **of Appeals** 

**for the**  **Second Circuit** 

A UGUST T ERM 2015

No. 14

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- cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

D WAYNE B ARRETT

, AKA S EALED D EFENDANT 3, AKA T ALL M AN

, Defendant

- Appellant

,

F AHD H USSAIN

, AKA A LI

, AKA M OE

, T AMESHWAR S INGH

, AKA

S EALED D EFENDANT 5, S HEA D OUGLAS

, J ERMAINE D ORE

, AKA S T

.

K ITTS

, AKA B LAQS

, T AIJAY T ODD

, AKA S EALED D EFENDANT 4, AKA

B IGGS

, D AMIAN C UNNINGHAM

, AKA J ABA

,

Defendants

. *

On Appeal from the United States District Court

for the Southern District of New York

A RGUED : J ANUARY 22, 2016

D ECIDED : S EPTEMBER 10, 2018

* The Clerk of Court is directed to amend the caption as set forth

above.14

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United States v. Barrett

2 Before: W INTER

, R AGGI

, and D RONEY

, Circuit Judges

.

________________ On 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. § 9 24(c) (1) (A)

, in one

case causing death, s ee id. § 924 (j)

. Defendant argues that the

predicate felonies for these firearms offenses

— s ubstantive 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 decision s 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 c onspiratorial Hobbs Act robbery fails for two

reasons. First, our precedent has long recognize d that a conspira cy to

commit a crime of violence i s itself a crime of violence

, and

Dimaya / Johnson warrant no different conclusion because we need not

look beyo nd 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

forc e in its commission can be made by the trial jury in deciding the

defendant’s guilt, thus av oiding both the Sixth Amendment and due

process vagueness concerns at issue in Dimaya and Johnson

. The fact14

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United States v. Barrett

3 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 admit s no other conclusion but that the charged robbery

conspiracy was a violent crime under § 924(c)(3)(B)

.

A FFIRMED

.

KELLEY J. SHARKEY, ESQ.

, Brooklyn,

New York, for Defendant

- Appellant

.

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

.

R EENA R AGGI

, Circuit Judge :

D efendant 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 c onspirac y to commit Hobbs Act

robbery, see 18 U.S.C. § 1951 (Count One) ; using a firearm in the

co mmission of th at conspiracy

, see id. § § 924(c)(1)(A) and 2 (Count

Two) ; two substantive Hobbs Act robber ies, 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

, argu ing through counsel that (1) his Count s Two, Four,14

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United States v. Barrett

4 Six, and Seven firearms convictions must be vacated and those

charges dismissed because the felonies in which the firearms were

used

— substantive and c onspiratorial 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 decision s in

Sessions v. Di m aya

, 138 S. Ct. 1204 (2018)

, and Johnson v. United States

,

135 S. Ct. 2551 (2015) 1 ; (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 c onviction

. In supplemental

pro se brief s

, Barrett raises additional evidentiary

, sufficiency,

charging, and prosecutorial misconduct challenges

.

In a 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 Count s 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

, h olds substantive Hobbs Act robbery to be a categorical

crime of violence within the definition o f § 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 c rime of violence

. See, e.g.

, United States v. Patino

,

962 F.2d 263, 267 (2d Cir. 1992). D imaya and Johnson c ompel no

1 Decision in this case was held pending the Supreme Court’s decision in Dimaya and this

court’s post

- Dimaya decision in United States v. Hill

, 890 F.3d 51 (2d Cir. 2018).14

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United States v. Barrett

5 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 c onduct

- specific, rather than categorical, app roach 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, c an determine whether the predicate

offense “by its nature, involve [d] a substantial risk that physical forc e

. . . may be used” in committing the offense, 18 U.S.C. § 924(c)(3)(B),

thereby avoiding both the trial

- by

- jury a nd due process vagueness

concerns identified in Dimaya and Johnson

. The fact that the jury was

not charged to make such findings here is har mless 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 ( 1999 ).

Accordingly, the judgment of conviction is affirmed.

BACKGROUND

B etween 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

gen erally 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, C rew members wore masks and gloves

t o conceal their identities. They used guns, knives, baseball bats, and14

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United States v. Barrett

6 their fists to threaten and coerce victims, physically injuring several

and killing one.

I. The Robberies

To 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 Count s Two, Four, and Six

,

and his § 924( j ) firearms

- murder conviction on Cou nt Seven

.

1. Rauf Robbery : On August 22, 2011, Barrett a nd three other

Crew members traveled to M a tamoras

, 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 m ember punched Rauf in the face.

2. Tawfiq Robbery : On October 5, 2011, in the Bronx, Barrett and

an other Crew member rob bed Mubar ak Tawfiq

, a telephone calling

cards dealer, of more than $1,000 in cash but, after physically

struggling with the victim, abandoned the effort

.

3. 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 brandish ing a knife

, Abdulkader dropped his

cellphone a nd laptop computer and ran off.

4. Goel Robbery: That same day, in New Rochelle, New York,

Crew members (again without Barrett) robbed Pr ashant Goel, a

telephone calling cards dealer

, of approximately $6,000 in cash and14

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United States v. Barrett

7 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 him

.

5. 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 t o l ie on the floor and

not to ma ke 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.

6. Sin gh Attempted Robbery : On N ovember 14, 2011, Barrett and

another Crew member attempted to rob gas station manager Jaspal

Singh of cash proceeds from that business

. Upon n oticing 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.

7. Cornwall Robbery : On December 5, 2011, in another Bronx

robber y committed without Barrett

, C rew members robbed Fitzroy

Cornwall

, who worked at Westchester Medical Center, of jewelry, his

wallet, and the money contained therein. In committing this robbery,14

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United States v. Barrett

8 Crew members forcibly threw Cornwall to the ground and fired a

gunshot into the air.

8. 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 Hobb s Act conviction

, Count Six

firearms conviction

, and Count Seven firearms

- murder conviction

.

The three Crew members, traveling in Barrett ’ s Mercedes, had

followe d 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

gun s

, the Crew members pulled Abdulla and Liang out of the

minivan, entered the vehicl e, and drove off with Dafalla. As they did

so, D afalla surrepti ti ously threw $10,000 in sale proceeds out the

window, wh ere Abdulla recovered it

. When Dore and Todd realized

what had happened, Do re shot and killed Dafalla. Subsequent

ballistics examinat ion show ed that the firearm that kill ed 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, thro wing it into the Hudson River.

9. 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 a pproached 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 cause14

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United States v. Barrett

9 bleeding and made off with his money

. This firearm use supports

Barrett’s Count Two conviction.

10. 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 wit h the bag containing his cash.

11. 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 a nd grabbed her

,

hitting her again before taking her money.

II. Procedural History

Barrett 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 ; a nother 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 charged cri mes.

On March 19, 2013, a jury found both defendants guilty of all

seven counts of the Indictment. On July 16, 2014, the district court14

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United States v. Barrett

10 sentenced Barrett to an aggregate prison term of 90 years and an

aggregate supervised release term of five years. 2

This timely appeal followed.

DISCUSSION

In his 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”

r equirement of § 9 24(c)(1). The argument fails on the merits.

2 The district court sentenced Barrett as follows:

Count One (Hobbs Act robbery conspiracy): 20 years;

Count Two (firearms use in course of Count One): 5 years (mandatory

consecutive);

Count Three (substantive Hobbs Act robbery): 15 years (concurrent to

Count Five, otherwise consecutive);

Count Four (firearms use in course of Count Three): 25 years (mandatory

consecutive);

Count Five (substantive Hobbs Act robbery): 15 years (concurrent to

Count Three, otherwise consecutive);

Count Six (firearms use in course of Count Five): 25 years (mandatory

consecutive);

Count Seven (firearms use in course of Count Five resulting in death): 25

years (mandatory consecutive but merged with Count Six).

Dore was sentenced to a total prison term of 65 years, and this court has already affirmed

his judgment of conviction. See United States v. Dore

, 586 F. App’x 42 (2d Cir. 2014).14

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United States v. Barrett

11 I. The Relevant Statutes

To explain our conclusion, we begin with the relevant statutory

texts.

Section 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) b e sentenced to a term of imprisonment of not less

than 5 years;

(ii) i f the firearm is brandished, be sentenced to a term

of imprisonment of not less than 7 years; and

(iii) i f the firearm is discharged, be sentenced to a term

of impriso nment of not less than 10 years

. . . .

(C) In the case of a second or subsequent conviction

under this subsection, the person shall

—

(i) b e sentenced to a term of imprisonment of not less

than 25 years

. . . .

18 U.S.C. § 924( c ) (1).

Section 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 of a

firearm

, shall

—14

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United States v. Barrett

12 (1) i f the killing is a murder (as defined in section

1111), be punished by death or by imprisonment

for any term of years or for life

. . . .

Id. § 924(j).

Section 924(c)(3) defines the “crim e of violence” element of

§ 924(c)(1)(A) and, by incorporation, of § 924(j) as follows:

For purposes of this subsection the term “crime of

violence” means an offense that is a felony and

—

(A) has as an element the use, attempted use, or

threatened use of physical force against the person

or property of another, or

(B) that by its nature, involves a substantial risk th a t

physical force against the person or property of

another may be used in the course of committing

the offense.

Id. § 924(c)(3).

As this text makes plain, the § 924(c)(3 )(A) definition is

traditionally categorical, identifying a crime of violence by reference

to a n element that requires the actual, attem pted, or threatened use of

force. 3 B arrett argues that neither Hobbs Act substa ntive n or

conspiratorial robbery satisfies this § 924(c)(3)(A) definition. He

further argues that § 924(c)(3 ) (B) ’s residual definition

, referencing an

offense that “by its nature” involves “a substantial risk” of physical

force, must be invalidated as u nc onstitutionally vague in light of

Sessions v. Dimaya

, 138 S. Ct. 1204 (holding similar residual clause

definition of “crime of violence” in 18 U.S.C. § 16(b)

3 In contrast, a conduct

- specific inquiry looks to the facts of the specific case.14

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United States v. Barrett

13 u nconstitutionally vague 4 )

, and Johnson v. United States

, 135 S. Ct. 2551

(reaching same conclusion regarding residual clause definition of

“violent felony” applied to prior conviction under Armed Career

Criminal Act ( “ ACCA ” ) 5 ).

Before addressing these challenges, we set forth one further

statutory text, defining substantive and conspiratorial Hobbs Act

robbery :

(a) Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion or

attempts or conspires to do so,

. . . shall be

. . . imprisoned

not more than twenty years

. . . .

(b) As used in this section

—

(1) The term “robbery” means the unlawful taking or

obtaining of person al proper t y from the person or in

the presence of another, against his will, by means of

4 Title 18 U.S.C. § 16, which provides a general two

- part definition of a “crime of violence,”

states as follows:

The term “crime of viole nce” means

— (a) an offense that has as an element the use, attempted use, or threatened

use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical fo rce against the person or property of

another may be used in the course of committing the offense.

18 U.S.C. § 16.

5 ACCA mandates an aggravated sentence for § 922(g) firearms crimes committed by

persons with three or more prior violent felony or serious drug convictions. It defines

“violent felony” to mean an offense that, among other things,

(i) has as an element the use, attempted use, or threatened use of

physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of ex plosives, or

otherwise involves conduct that presents a serious potential risk

of physical injury to another.

18 U.S.C. § 924(e)(2)(B).14

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United States v. Barrett

14 actual or threaten ed force, or violence, or fear of

injury, immediate or future, to his person or

property, or property in his custody or possession, or

the person or property of a relative or member of his

family or of anyone in his company at the time of the

taking or obt aining.

18 U.S.C. § 1951.

II. Barrett’s Substantive Hobbs Act Robber ies Are

C ategorical Crime s of Violence U nder 18 U.S.C.

§ 924 (c)(3 ) (A)

Barrett first challenge s his firearm s conviction on Counts Four,

Six and Seven on the ground that substantive Hobbs Act robber ies are

not crime s of violence under 18 U.S.C. § 924(c)(3)(A)

. This categorical

challenge is defeated by United States v. Hill

, 890 F.3d 51

. Hill hold s

“that Hobbs Act robbery ‘has as an element the use, attempted use, or

thr eatened use of physical force against the p erson or property of

another’” and, thus

, is a categorical “ crime of violence under 18 U.S.C.

§ 924(c)(3)(A). ” Id. at 5 3

, 60 (quoting 18 U.S.C. § 924(c)(3)(A) )

.

The conclusion derive s from the Hobbs Act’s definition of

robbery quoted supra at 13

– 14

. Th e Hill defendant had argued that

th e definition did not categorically satisfy § 924(c)(3)(A) because it

was possible to put a robbery victim “ in ‘fear of injury’ to his person

or propert y,

. . . without the ‘use, attempted use, or threatened use of

physical force’ ” and, thus, “ the minimum conduct necessary to

commit a Hobbs Act robbery does not include the element necessary

to qualify such robberies as crimes of violence for the purpose o f

§ 924(c)(3)(A) .” Id. at 57 (quoting first § 1951(b) and then

§ 924(c)(3)(A)) (emphasis in original). This court rejected the

argument

, observing, first, that t he defendant had failed to show that14

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United States v. Barrett

15 in either “‘ his own case or other cases

, ’” the Hobbs Act had ever been

applied in the absence of actual, attempted, or threatened force, so as

to demonstrate a “‘ realistic probability ’ ” that Hobbs Act robbery was

not categorically a violent crime. Id. at 59 (quoting Gonzales v. Duenas

Alvarez

, 549 U.S. 1 8 3, 193 (2007) (holding that to show predicate

conviction not categorically a crime of violence “requires more than

the application of legal imagination to

. . . statute’s language”) )

. 6

Second, and in any event, the court explained that each of the fear

- of

injury hypotheticals advanced to support defendant’s argument, in

fact, entailed the “use

, attempted use

, or threatened use of physical

force ,” 18 U.S.C. § 924(c)(3), as that term has been construed by the

Supreme Court. See United States v. Hill

, 890 F. 3d

. at 58

– 60 (explaining

that “ ‘ physical force’

. . . means simply ‘ violent force

— that is, force

capable of causing physical pain or injury to another person’”

(quoting Johnson v. United States

, 559 U.S. 133, 14 0 (2010) (emphasis in

original) )

.

Following Hill ’s holding, we conclude that the substantive

Hobbs Act robberies for which Barrett stands convicted are

categorical crimes of violence under 18 U.S.C. § 924(c)(3)(A) and,

thus, support his § 924(c) (1)(A) convictions on Counts Four and Six,

and his § 92 4(j) conviction on Count Seven

.

6 Hill certainly used violent

— indeed, deadly

— force when, in the course of a Hobbs Act

robbery, he shot and killed his target, a livery cab driver, in violation of 18 U.S.C. § 924(j)(1).

See United States v. Hill

, 890 F.3d at 52

– 53.14

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United States v. Barrett

16 III. Barrett’s Conspiracy To Commit Hobbs Act Robbery

Conspiracy Is a Crime of Violence Under 18 U.S.C.

§ 924(c) ( 3)

A. Hobbs Act Robbery Conspiracy Is a Categorical Crime

of Violence as Defined by § 924(c)(3)(A) Together with

§ 924(c)(3)(B)

Barrett further challenges his firearms conviction on Count

Two on the ground that a conspiracy to commit Hobbs Act robbery

is not a cri me of violence under 18 U.S.C. § 924(c) (3)(A) and

§ 924(c)(3)(B). Because the only crime at issue in H ill was substantive

Hobbs Act robbery, th is court h ad no occasion there to consider

whether a Hobbs Act robbery conspiracy is also a crime of violence

under the elements definition of § 924(c)( 3 ) (A), or the residual

definition of § 924(c)( 3 )(B)

.

In fact, i t has long been the law in this circuit that a conspiracy

to commit a crime of violence is itself a crime of violence under 18

U.S.C. § 924(c) (3)

. See United States v. De s ena, 287 F.3d 170, 181 (2d

Cir. 2002) (reaching conclusion with respect to conspir acy to commit

assault in aid of racketeering ) ; accord United States v. Acosta

, 470 F.3d

132

, 13 6

– 37 (2d Cir. 2006) (reaching conclusion with respect to

conspiracy to injure, threaten, or intimidate person in exercise of civil

rights)

. Indeed, we have so h eld with particular reference to Hobbs

Act robbery conspiracy, see United States v. Elder

, 88 F.3d 127, 129 (2d

Cir. 1996)

, among other crimes, see

, e.g.

, United States v. Patino

, 962

F.2d at 267 (reaching conclusion with respect to kidnapping

conspiracy)

. We have also so held in contexts other than § 924(c). See

United States v. Doe

, 49 F.3d 859, 866

– 67 (2d Cir. 1995) (recognizing

Hobbs Act robbery conspiracy to be crime of violence under 18

U.S.C. § 16 for purposes of allowing government to proceed aga inst14

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United States v. Barrett

17 juvenile as adult under Juvenile Delinquency Act ); United States v.

Chimurenga

, 760 F.2 d 400

, 404 (2d Cir. 19 8 5) (recognizing conspiracy

to commit armed robbery as crime of violence for purposes of Bail

Reform Act 7 ).

The rationale was stated in Chimur enga

, 760 F.2d at 404, and

reiterated in Patino

, on which subsequent cases rely

.

[C] onspiracy, by its very nature

, is a collective criminal

effort where a common goal unites two or more

criminals. Such a meeting of the minds enhances the

likelihood that t he planned crime will be carried out.

Thus, when a conspiracy exists to commit a crime of

violence,

. . . the conspiracy itself poses a “substantial

risk” of violence, which qualifies it under Section

924(c)(1) and Section 924(c)(3)(B) as a crime of viole nce.

United States v. Patino

, 962 F.2d at 267 (citation omitted)

. Applying

this precedent here, we conclude that if a substantive offense is

categorically a crime of violence under § 924(c)(3)(A)

— a s Hill holds

Hobbs Act robbery to be

— a conspiracy to commit that crime, by its

“very nature” presents a su bstantial risk of physical force, so as also

to be a violent crime under § 924(c)(3)(B). Id.

In urging otherwise, Barrett argues that the cited precedent

cannot s urvive Dimaya and Johnso n

. In Di maya, an alien challenged a

deportation order premised on a p rior state conviction for first

-

7 The Bail Reform Act def ines a “crime of violence” similarly to § 924(c)(3), as follows:

(A) an offense that has as an element of the offense the use, attempted use,

or threatened use of physical force against the person or property of

another; [or]

(B) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property of

another may be used in the course of committing the offense.

18 U.S.C. § 3156(a)(4).14

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United States v. Barrett

18

degree burglary, which immigration authorities held to be a crime of

violence under the residual definition in 18 U.S.C. § 16(b)

. See supra

at 13 n. 4

. In holding that provision unconstitutionally vague, Dimaya

r elied on reasoning earlier employed in Johnson v. United States

, 135

S. Ct. at 2562

– 63, to invalidate ACCA’s residual definition of a crime

of violence

, specifically

, the “hopeless indeterminacy” that resulted

from tying a judicial assessment of risk to a crime’s hypothetical

“ordinary case

. ” Sessions v. Dimaya

, 138 S. Ct. at 1213 (internal

quotation marks to Johnson omitted).

The identification of a crime’s “ ordinary case” is “ a distinctive

form of

. . . the categorical approach ,” developed by the Supreme

Court specifically for application to residual definitions of a crime of

violence

. Id. at 1211 ; see James v. United States

, 550 U.S. 192, 207

– 08

(2007) (identifying “proper inquiry” f or categorical appl ication of a

residual definition to be “ whether the conduct encompassed by the

elements of the offense, in the ordinary case

, presents a serious

potential risk of injury to another” ( emphasis added)

, and rejecting

argument that ACCA’s resid ual clause required prior crime of

conviction to create risk of physical injury in “ all cases” (emphasis in

original )). In Dimaya

, the Supreme Court held that construing

§ 16(b)’s residual definition of a crime of violence by reference to an

“ordinary cas e” ra i sed d ue p ro cess vagueness concerns because of

“grave uncertainty” about (1) how judges should estimate the risk

posed by a crime’s “ordinary case,” and (2) what “threshold level of

risk” would make a crime a violent felony. Sessions v. Dimaya

, 138

S

. Ct. at 1211, 1213

– 14

. While the latter concern was no t a problem

in itself, it became so when layered on top of the first

. See id. at 1215

–

16 ; Johnson v. United States

, 135 S. Ct. at 2561 (reaching same

conclusion regarding ACCA residual clause)

.14

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United States v. Barrett

19 Section 924 (c) (3)(B) ’s definition of a violent crime is similar to

that of § 16(b)

. Thus, Barrett argues that, after Dimaya and Johnson, a

court cannot look to an “ordinary case” of Hobbs Act robbery

conspiracy to identify the offense as a categorical cri me of violence

under § 924(c)(3)(B). That may be so. 8 Nevertheless, Dimaya and

Johnson do not require us to abandon our Patino / Chimurenga line of

precedent here. That is because there is no need to identify an

“ordinary case” of Hobbs Act robbery conspi racy to make a violent

crime determination under § 9 2 4(c)(3)

. See Sessions v. Dimaya

, 138

S. Ct. at 1215

– 16 (observing that substantial risk standard posed

constitutional concern only when applied to “ ‘ judge

- imagined

abstraction ,’

— i.e.

, ‘ an idealized ordi nary case of the crime’

. . . . It is

then that the standard ceases to work in a way consistent with due

process.” (quoting Johnson v. United States

, 135 S. Ct. at 2558

, 2561 )).

We can do so simply by applying the elements of that crime to

§ 924(c)(3)(A) together with § 924(c)(3)(B)

, in short, by following the

traditional categorical approach.

T o explain, an element of any c onspiracy is an agreement

between two or more persons to commit an offense against the

United States. See United States v. Jimenez Recio

, 537 U.S. 270

, 274

8 See United States v. Eshetu

, 898 F.3d 36, 37 (D.C. Cir. 2018 ) (holding that Dimaya ’s

conclusion that § 16(b) is unconstitutionally vague compels conclusion that § 924(c)(3)(B)

is also unconstitutionally vague because two statutes are “materially identical”); United

States v. Salas

, 889 F.3d 681, 685 (10th Cir. 2018) (holding that, as in Dimaya and Johnson

, “ordinary

- case requirement and an ill

- defined risk threshold” compel conclusion that

§ 924(c)(3)(B) is unconstitutionally vague (inter nal quotation marks omitted)).

Neither Eshetu nor Salas address whether continued reliance on an ordinary

- case

standard makes sense for a predicate offense of a pending § 924(c)(1)(A) crime, or whether

the canon of constitutional avoidance mandate s a different interpretation of the statute. In

Eshetu

, the D.C. Circui t determined that it was bound by its own precedent to apply an

ordinary

- case approach to § 924(c)(3)(B), “[w]hatever the clean

- slate merits” of a different

approach by contrast. United States v. Eshetu

, 898 F.3d at 37

– 38. Both points inform our

discussio n, infra

, at III.B.1.14

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United States v. Barrett

20

(2003) (“The Court has repeatedly said that the essence of a

conspiracy is an agreement to commit an unlawful act.” ( alteration

and internal quotation marks omitted)); United States v. Praddy

, 725

F.3d 147, 153 (2d Cir. 2013) (“The essence of the crime of conspiracy,

of course, is the agreement to commit one or more unlawful acts.”

(emphasis in original) (internal quotation marks omitted) ); United

States v. Chimurenga

, 760 F.2d at 404

. Focusing first on the object

offen se part of the agreement element, a court properly considers

whether that offense is a categorically violent crime under

§ 924(c)(3)(A). If it is not, that is the end of the categorical inquiry.

But if the object offense is itself categorically violent

— a s Hill holds a

Hobbs Act robbery to be

, see supra at 14

– 15

— a court then turns its

attention to th e agreement element’s requirement for two or more

persons to join in a common scheme to achieve the object

.

As the Supreme Court has observed in explaining why

conspiracy is punished as a distinct crime, “[c]oncerted action both

increases the likelihood that the criminal object will be successfully

attained and decreases the probability that the individuals involved

wi ll depart from their path of criminality.” Callanan v. United States

,

364 U.S. 587

, 593 (19 61 ). Applying that reasoning to conspiracies to

commit categorically violent crimes, this 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

. See

United States v. Chimurenga

, 760 F.2d at 404 (“The existence of a

criminal grouping increases the chances that the planned crime will

be committed beyond that of a mere possibility

. Because the

c onspiracy itself provides a focal point for collective criminal action

,

attainment of the conspirators’ objectives becomes instead a14

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United States v. Barrett

21

significant probability .” (emphasis in original) )

. In sum

, the

agreement element means, “ in each case that the [Hobbs Act robbery

conspiracy] crime covers, ” the risk of force is present. Sessions v.

Dimaya

, 138 S. Ct. at 1211 (emphasis added) (distinguishing

categor ical approach based on elements from approach based on

hypothetical “ordinary case”).

Thus, we conclude that Dimaya and Johnson do not preclude

reliance on o ur Patino / Chimurenga precedent here because we do not

employ “ordinary case” analysis to determine if Hobbs A ct robbery

conspiracy is a violent crime as required by § 924(c) (1)

. Rather, we

make that determination under traditional categorical analysis by

ref erence only to the crime’s elements as applied to both

§ 924(c)(3)(A) and § 924(c)(3)(B). 9 Accordingly, we affirm Barrett’s

conviction on Count Two.

B. Barr ett’s Hobbs Act Robbery Conspiracy Is a Crime of

Violence on a Conduct

- Specific Application of

§ 924(c)(3)(B)

1. A Conduct

- Specific Approach to § 924(c)(3)(B) Is a

Reasonable Construc tion of the Statute that Avoids

Constitutional Concerns Identified in Dimaya and

Johnson

Even if the elemen ts of Hobbs Act r obbery c onspiracy did not

thus establish it as a crime of violence on a traditional categorical

application of § 924(c)(3) (A) and § 924(c)(3) (B)

, Barrett would not be

9 To the extent our precedent has not always been clear in identifying a conspiracy’s object

offense as a violent crime under the elements definition of § 924(c)(3)(A), we do not pursue

the point. We conclude only that, where, as her e, the elements establish an object offense

as a categorial crime of violence under § 924(c)(3)(A), the conspiracy itself

— by virtue of its

agreement element

— is a categorical crime of violence under § 924(c)(3)(B).14

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United States v. Barrett

22 entitled to relief from his § 924(c)(1) conviction on Count

Two. 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 predic ate offense and the attending risk of physical

force being used in its commission. Such a conduct

- specific

approach avoids bo th the Sixth Amendment right

- to

- trial and due

process vagueness concerns identified in Dimaya and Johnson.

Barrett argues that a conduct

- specific approach is foreclosed by

our precedent categori c all y identifying crimes of violence under

§ 9 2 4(c)(3)(B). See United States v. Ivezaj

, 568 F.3d 88, 95 (2d Cir. 2009);

United States v. Acosta

, 470 F.3d at 134

– 35. But t hese cases followed

that course before Dimaya and Johnson held that the accepted

categorical approach to residual clauses

— the ordinary

- case

standard

— was unconstitutionally vague. The parties agree that

Dimaya “raise s serious constitutional questions” as to the continued

viability of a categorical approach to § 924(c)(3) ( B). Gov. 2018 Sup p.

Br. 6; Def. 2018 Supp. Br. 4. Where an intervening Supreme Court

decision thus casts doubt on our prior precedent

, a panel of th is court

is not foreclosed from considering whether the statutory text might

be construed in a different way to avoid the constitutional concerns

identified by the Supreme Court

. See generally In re Zarnel

, 619 F.3d

156, 168 (2d Cir. 2010). 10 Indeed, it i s an “elementary rule” in

construing acts of Congress that “every reasonable construction

must be resorted to

, in order to save a statute from

unconstitutionality.” Skilling v. United States

, 561 U.S. 358

, 40 6 (2010)

10 In deciding it was bound by its own pre cedent on this issue, the D.C. Circuit in Eshetu

was apparently applying a more stringent standard for overruling a prior panel decision.

See United States v. Eshetu

, 898 F.3d at 38 (requiring an intervening Supreme Court decision

to establish that the pr ior panel decision “is clearly an incorrect statement of current law.”

(quoting United States v. Dorcely

, 454 F.3d 366, 373 n.4 (D.C. Cir. 2006)).14

- 2641

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United States v. Barrett

23

(emphasis and internal quotation marks omitted) ; see INS v. St. Cyr

,

533 U.S. 289, 300 (2001) (recognizing court’s obligation to identify

statutory construction that avoids constitutional problems if it is

“fairly possible” to do so (internal quotation marks omitted) ).

Following that mandate, we begin with the Supreme Court’s

acknowledgment in both Dimaya and Johnson that no constitutional

vagueness inheres in a substantial

- risk definition of a crime of

violence when applied to case

- specific conduct. See Sessions v.

Dimaya

, 138 S. Ct. at 1215 (observing that “‘ we do not doubt’ the

constitutionality of applying [ a ] ’substantial risk [standard] to real

wor l d conduct ’ ” ( second brackets in original) (quot ing Johnson v.

United States

, 135 S. Ct. at 2561 ) )

. Such a conduct

- specific applicati on

is

, in fact, well suited to § 924(c)(3)(B) because the statute applies only

to the predicate offense of a pending § 924(c)(1)(A) charge

. To return

a guilty verdict on such a firearms charge, a jury must find that the

defendant used the firearm during a nd in relation to a “crime of

violence” as defined in § 924(c)(3). Before Dimaya and Johnson

, it was

thought that the identification of a predicate offense as a crime of

violence was a question of law for categorical determination by the

court. If

, follo wing Dimaya and Johnson

, a court can no longer make

such a determination of law under § 924(c)(3)(B) ’s residual definition

( because the categorical ordinary

- case standard is unconstitutionally

vague )

, then § 924(c)(3)(B) is reasonably construed to present a

question of fact to be found by the trial jury according to the

defendant’s “real

- world conduct.” Id. (internal quotation marks

omitted); cf. United States v. Gaudin

, 515 U.S. 506

, 518

– 23 (1995)

(holding t hat materiality element of fraud, long decided as question

of law by courts, was question of fact that had to be submitted to

jury). S ubmitting § 924(c)(3)(B) determinations to trial juries for14

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United States v. Barrett

24

conduct

- specific determinations thus avoids not only the

cons titutional vagueness concerns that Dimaya and Johnson located

in the categorical ordinary

- case standard, but also the Sixth

Amendment right

- to

- trial concern that originally prompted the

Supreme Court to mandate a categorical approach to residual

definition s of crimes of violence.

The categorical approach was introduced in T aylor v. United

States

, 495 U.S. 57 5 (1990). At issue there was not ACCA’s residual

clause, but one of the specifi ed crimes of conviction that immediately

precede th e c lause, specifically, burglary. See 18 U.S.C.

§ 924(e)(2)(B)(ii) (quoted supra at 13 n

. 5 ). Concluding that ACCA

referred to burglary in the generic sense, not a s defined by each of

the 50 states

, the Supreme Court he ld that the government could not

introdu ce evidence about the “particular facts” of a defendant’s prior

crime to prove that his conviction was for generic burglary. Taylor v.

United States

, 495 U.S. at 600. Instead, the Court mandated a

“categorical approach” that “look[ed] only to the fact of conviction

and the statutory definition, ” i.e.

, the elements

, of generic burglary.

Id. at 602; see id. at 598

– 99 (identifying “elements” of generic burglary

and holding that if defendant “is convicted of any crime

. . . having

the[se] basic elements,” he has been convicted of burglary for

purposes of ACCA).

In rejecting a conduct

- specific approach, the Court cited the

statut ory text, which specifically referred to “ conv ictions” rather

than conduct

, as well as legislat ive history, which had once included

a generic definition of burglary in ACCA

. Id. at 60 0

– 0 1. But more

potent still were the perceived “practical difficulties and potential

unfairness of a factual approach

, ” especially the specter of

evidentiary hearings and judicial factfinding reach ing beyond th e14

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United States v. Barrett

25 record of conviction and possibly “abridging [the defendant’s Sixth

Amendment ] right to a jury trial. ” Id. at 601 ; accord Shepard v. United

States

, 544 U.S. 13, 25 (2005) (observing

, in context of prior state

conviction based on guilty plea

, that subsequent judicial factfinding

a s to “what the defendant and state judge must have understood as

the factual basis” implicated “Sixth and Fourteenth Amendments [‘]

guarantee [that] a jury [will ] stand[] between a defen dant and the

power of the State

. . . to increase the ceiling of a potential sentence”).

In short, constitutional avoidance informed the original categorical

approach mandate. See Sessions v. Dimaya

, 138 S. Ct. at 1217

(acknowledging that Supreme Court adopted a categorical approach

to identification of violent crimes “in part to avoid the Sixth

Amendment concerns that would arise from

. . . courts’ making

findings of fact that pr operly belong to juries” (internal quotation

marks and altera tion omitted) ); see id. at 1256 (Thomas, J.

, with

Kennedy, Alito, JJ., dissenting) (observing that “categorical approach

was never really about the best reading of the text

. . . . [T]his Court

adopted that approach to avoid a potential Sixth Amendment

pro blem with sentencing judges conducting minitrials to determine

a defendant’s past conduct.”).

I n James v. United States, 550 U.S. 192, the Supreme Court

extended Taylor ’s categorical approach to ACCA’s residual clause

,

but doing so required m odification. To make a categorical

determination of when a statutorily unspecified crime

— in that case

attempted burglary

— posed “a serious potential risk of physical

injury to another

, ” 18 U.S.C. § 924(e)(2)(B)(ii)

, James held that “the

proper inquiry is whether the co nduct encompassed by the elements

of the offense, in the ordinary case

, presents a serious potential risk of

injury to another

, ” James v. United States

, 550 U.S. at 208 (emphasis14

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United States v. Barrett

26

added). Thus, unlike the traditional categorical approach, which

considered how the elements of a crime apply in every case, the

ordinary

- case standard did not demand “that every conceivable

factual offense covered by a statute

. . . necessarily present a serious

potential risk of injury before the offense can be deemed a violent

felony.” Id. at 207

– 08 (rejecting argument that “ all cases” of

attempted burglary must present that risk (emphasis in original)).

Dissenting in James

, Justice Scalia suggested that ACCA’ s residual

clause was u nconstitutionally vague as applied to such a

hypothetical “ordinary case.” Id. at 230 (Scalia, J

. , dissenting).

Within a deca de, that view would command a Supreme Court

majority : “ We are convinced that the indeterminacy of the wide

ranging inquiry required by the residual clause both denies fair

notice to defendants and invites arbitrary enforcement by judges. ”

Johnson v. United States

, 135 S. Ct. at 2557

. In reaching this conclusion,

the Supreme Court observed

, as noted supra at 22

– 23

, that it did “not

doubt the constitutionality of laws that call for the application of a

qualitative standard such as ‘substantial risk ’ to real

- world conduct.”

Id. at 2561. The problem was with the application of that standard

“to an idealized ord inary case of the crime.” Id

.

Because the element s necessary to determine the

imaginary ideal are uncertain both in nature and degree

of effect, this abstract inquiry offers significantly less

predictability than one that deals with the actual, not

with an imaginary condition other than the facts.

Id. (in ternal quotation marks omitted).

The Johnson majority, however, declined to “ save the residual

clause from vagueness” by construing its risk requirement by

reference to defendant’s actual conduct rather than an idealized case

.14

- 2641

- cr

United States v. Barrett

27 I d. ; see id. at 2577

– 80 (Ali to, J.

, dissenting) (urging alternative

construction)

. It explained that (1) the government had not argued

for abandonment of a categorical approach in residual

- clause cases

,

s ee id. at 2562 ; and (2) “good reasons” supported Taylor ’s adoption of

a categorical approach

, specifically, ( a ) ACCA’s textual emphasis on

convictions rather than conduct, and ( b ) “the utter impracticability

of requiring a sentencing court to reconstruct, long after the original

conviction, the conduct underlying that convicti on

, ” i d

.

Sessions v. Di m aya relied on Johnson to hold unconstitutionally

vague § 16(b)’s residual clause

— there being applied to a prior state

burglary conviction supporting a deportation order

. See 138 S. Ct. at

12 10

– 11. The problem, as in Johnson

, was not that the residual clause

identified crimes by reference to a substantial

- risk standard but,

rather, that a categorical identification of such risk depended on an

i dealized ordinary case. Dimaya observed that there was “‘ no reliable

way’ to discern wha t the ordinary version of any offense looked

like

, ” without which “no one could tell how much risk the offense

generally imposed .” Id. at 1 214 (quoting Johnson v. United States

, 135

S. Ct. at 2558). That

, in turn, made it impossible to identify a

categor ical case of “‘ substantial risk ’

. . . in a way consistent with due

process.” Id. at 1215

– 16 (quoting Johnson v. United States

, 135 S. Ct. at

2561 )

.

As in Johnson

, dissent ers suggested abandoning the

constitutionally suspect ordinary

- case standard in favor of a

conduct

- specific i nquiry

. See id. at 1252

– 56 (Thomas, J., with

Kennedy

, Alito, JJ., dissenting ) (“Instead of asking whether the

ordinary case of an alien’s offense presents a sub stantial risk of

physical force, courts should ask whether the alien’s actual

underlying conduct presents a substantial risk of physical force.”). A14

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United States v. Barrett

28 plurality declined to do so, citing four reasons. First, as in Johnson

,

the government had not urged such a construction of the residual

clause

. To the contrary, at “every step” of the Dimaya litigation, the

government had “conceded

. . . the correctness of [the ordinary

- case]

construction,” and this, despite “the Johnson dissent [having ] laid out

the opposi te view.” Id. at 1217. 11 Second, a conduct

- specific

construction would “generate its own constitutional questions,”

specifically

, “the Sixth Amendment concerns that would arise from

sentencing courts’ making findings of fact that properly belong to

juries .” Id

. (internal quotation marks omitted). 12 T hird, the phrase

“by its nature” in § 16(b) “demands a categorical approach” because

it “tells courts to figure out what an offense normally

— or

. . .

ordinarily

— entails, not what happened to occur on one occasion.”

Id. at 1217

– 18 (internal quotation marks omitted). Finally, “the utter

impracticability” and “daunting difficulties of accurately

reconstructing, often many years later, the conduct underlying a

convi ction” is as great under § 16(b) as under ACCA. Id. (internal

quotation marks and alteration s omitted).

As this summary makes evident, the mandate for a categorical

approach to residual definitions of violent crimes has developed in a

singular context: judicial identification of what crimes ( most often,

state crime s ) of prior conviction fit federal definitions of violent

11 While the government’s concession informed the Court’s decision not to consider a

conduct

- specific construc tion of § 16(b)’s residual clause, members of the majority

acknowledged that the government could not foreclose such consideration. See id.

(plurality opinion); see also id. at 1232

– 33 ( Gorsuch

, J

. , concurring in part ) (observing that

“normally courts do not rescue parties from their concessions,” but expressing openness

“to different arguments about

. . . proper reading of language like this

. . . in another case”).

12 The Dimaya plurality identified this constitutional concern despite the fact that the right

to a jury trial did not apply to the removal proceeding there at issue, explaining that

“§ 16(b) is a criminal statute, with criminal sentencing consequences” and had to be

interpreted consistently, whether encountered in a criminal or noncriminal c ontext. Id.14

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United States v. Barrett

29

crimes so as to expose a defendant to enhanced penalties or other

adverse consequences in subsequent federal proceedings. In no case

has the Supreme Court considered a residual definition of violent

crime that, like § 924(c)(3)(B)

, defines a predicate offense for a crime

of pending prosecution.

The distinction is significant

. As the cited cases repeatedly

emphasize

, post

- co nviction, a judicial identification of crimes of

violence must be categorical because a conduct

- specific factual

inquiry at that point would raise Sixth Amendment concerns. A

categorical approach to residual definitions

, however, may not be

possible even in that context because

, as Dimaya / Johnson hold, the

“ordinary case” standard devised for that purpose is

unconstitutionally vague. S ee id. at 1254 (Thomas, J.

, with Kennedy,

Alito, JJ

., dissenting) (“The Court’s attempt to avoid the Scylla of the

Sixth A mendment steered it straight into the Charybdis of the Fifth.

The ordinary

- case approach that was created to honor the individual

right to a jury is now, according to the Court, so vague that it

deprives individuals of due process.” ).

Section 924(c)(3), however, is not concerned with prior

convictions. It pertains only to § 924(c)(1) crimes of pending

prosecution

. This means that a conduct

- specific identification of a

predicate offense as a crime of violence can be made without raising

either of the constitutional concern s that have informed the Supreme

Court’s categorical

- approach jurisprudence

. The Sixth Amendment

concern is avoided because the trial jury, in deciding whether a

defendant is guilty of using a firearm “during and in relation to any

crime of violence,” 18 U.S.C. § 924(c)(1)(A), can decide whether the

charged predicate offense is a crime of violence as defined in

§ 924(c)(3)(B), i.e.

, whether the felony offense “by its nature, involves14

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United States v. Barrett

30

a substantial risk that physical force agai nst the person or property

of another may be used in the c ourse of committing the offense,” 18

U.S.C. § 924(c)(3)(B). As for due process, we have already

highlighted the Supreme Court’s acknowledge ment in both Di m aya

and Johnson that a finding of “substant ial risk” of physical injury can

be made based on “real

- world conduct” without any of the

vagueness concerns raised by ordinary

- case review. See supra at 22

–

23

, 26

.

Barrett nevertheless maintains that the statutory text precludes

conduct

- specific applica tion

, specifically, the phrase “ by its nature, ”

which modifies the felony offenses qualifying as crimes of violence

under § 924(c)(3)(B)

. We are not persuaded. To be sure, the Di maya

plurality construed similar language in 18 U.S.C. § 16(b) to

“demand[] a categorical approach ,” citing that as one of four reasons

for not abandoning the categorical approach in favor of a conduct

specific inquiry. Sessions v. Dimaya

, 138 S. Ct. at 121 7

. But the

plurality had already concluded that such a substitution would not

achieve constitutional avoidance because a conduct

- specific

application of § 16(b) to a crime of prior conviction would only

replace one constitutional concern (vagueness) with a nother

(abridgment of the right to trial by jury). See id

.

That is not the case here. While constitutional vagueness may

preclude categorical application of § 924(c)(3)(B) after Johnson and

Dimaya

, a conduct

- specific application raises no Sixth Amendmen t

concerns because all relevant factfinding would be made by the trial

jury. Thus, constitutional avoidance is not an impossibility here, as

the plurality thought it was in Dimaya

.14

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- cr

United States v. Barrett

31 We recognize that the word “nature” as used in the phrase “by

its na ture” is commonly understood to mean “the basic or inherent

features, character, or qualities of something,” Oxford Dictionary of

English 1183 (3 d ed. 2010); a “normal and characteristic quality,”

Webster’s Third New International Dictionary 1507 (2002). We al so

recognize that the “something” whose nature is referenced in

§ 924(c)(3)(B) is the predicate “offense.” But nothing in these

definitions indicates whether the offense whose inherent

characteristics are to be considered is the generic crime or the

parti cular one charged. In Nijhawan v. Holder

, 557 U.S. 29 (2009), the

Supreme Court recognized that words such as “crime,” “felony,” and

“offense” can be used in both respects, “sometimes ref er [ring] to a

generic crime

. . . and sometimes refer[ring] to the s pecific acts in

which an offender engaged on a specific occasion

. ” I d. at 3 3

– 3 4.

Thus, while both constructions are reasonable, because a generic

—

i.e., ordinary

- case

— construction raises a constitutional vagueness

concern, while a c onduct

- specific approach does not, we heed the

principle of constitutional avoidance and conclude that the

identification of a crime of violence under § 924(c)(3)(B) is properly

made by a jury on a conduct

- specific basis. 13

Nor is a different conclusion warrante d because a court would

decide whether a predicate offense was a crime of violence under

§ 924( c )(3)(A), while the jury would decide whether i t was a crime of

violence under § 924(c)(3)(B). Such divisions are not uncommon

when related matters raise questi ons of both law and fact. See, e.g.,

13 See Chapman v. United States

, No. 1:03

- cr

- 296

- 6(LMB), 2018 WL 3470304, at *12

– 13 (E.D.

Va. J uly 19, 2018) (concluding that, after Dimaya

, constitutional avoidance compels

conduct

- specific approach to § 924(c)(3)(B)); see also United States v. Blanco

, 16 Cr. 408 (CS)

(S.D.N.Y.) (submitting question of whether predicate offense was crime of violence under

§ 924(c)(3)(B) to jury).14

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United States v. Barrett

32

United States v. Davis

, 726 F.3d 357, 368 (2d Cir. 201 3 ) (hold i ng that

whether crime took place within special maritime and territorial

jurisdiction of United States requires two separate inquiries, one “a

factual ques tion for the jury,” other a “ legal question that a court may

decide on its own”). Indeed, because the § 924(c)(3) definitions of a

crime of violence apply only in the context of a pending

§ 924(c)(1)(A) prosecution, both definitions are necessarily linked to

a jury assessment of whether the alleged predicate crime of violence

was, in fact, committed. See generally Johnson v. United States

, 779 F.3d

125, 129

– 30 (2d Cir. 2015) (holding that so long as proof is legally

sufficient to allow jury to find that p redicate § 924(c)(1)(A) offense

was committed, defendant need not be separately charged with and

convicted of that offense).

Barrett argues that a conduct

- specific approach would lead to

inconsistent results, with certain crimes being found to satisfy the

§ 924(c)(3)(B) definition in some cases but not in others. But the

distinction would be based on a jury finding of real

- worl d conduct,

which properly distinguishes among criminal cases charging the

same crime. See Johnson v. United States

, 135 S. Ct. at 2561

( recognizing that criminal culpability can depend on “ matter of

degree ” (internal quotation marks omitted)). Indeed, it is far

preferable for a jury to be able to distinguish between crimes, such as

extortion threatening only reputational harm and extortion

employing violent, even deadly, force, see 18 U.S.C. § 1951(a), than

for it to be told, as a matter of law, that neit her offense is a violent

crime. 14

14 Conduct

- specific jury determinations avoid that feature of the categorical approach most

c riticized by respected judges: compelling “willful blindness” to known facts. United States

v. Lewis

, 720 F. App’x 111, 120 (3d Cir. 2018) (Roth, J

., concurring); see United States v. Davis

,14

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United States v. Barrett

33 Accordingly, because a § 924(c)(3)(B) determination can be

made by a trial jury based on a defendant’s real

- world conduct

without raising either due process or Sixth Amendment concerns,

Dimaya and Johnson do not necessaril y compel invalidation of

Barrett’s conviction on Count Two.

2. The Failure To Submit the § 924(c)(3)(B) Determination

to the Jury in this Case Was Harmless Error

E ven if a conduct

- specific § 924(c)(3)(B) determination can be

made by a jury, that was not done here. Nevertheless, we can affirm

Barrett’s Count Two conviction because the failure to submit a

§ 924(c)(3)(B) inquiry to the jury was harmless error beyond a

reasonable doubt.

The Supreme Court has held that the “omission of an element”

from a jury charge “is subject to harmless

- error analysis.” Neder v.

United States

, 527 U.S. at 15; accord United States v. Agrawal

, 726 F.3d

235, 257 (2d Cir. 2013). The relevant inquiry “is whether it appears

beyond a reasonabl e doubt” that the omission “did not contribute to

the verdict obtained.” Neder v. United States

, 527 U.S. at 15 (internal

quotation marks omitted). In conducting that inquiry, a court does

875 F.3d 592, 595 (11th Cir. 2017) (opinion by Carnes, C.J. ) (observing that categorica l

approach carries judges “down the rabbit hole

. . . to a realm where we must close our eyes

as judges to what we know as men and women”); United States v. Chapman

, 866 F.3d 129,

138 (3d Cir. 2017) (Jordan, J., concurring) (stating that categorical approa ch “often asks

judges to feign amnesia,” to “ignore facts already known and instead proceed with eyes

shut”); United States v. Faust

, 853 F.3d 39, 61 (1st Cir. 2017) (Lynch, J.

, concurring)

(observing that categorical approach “can lead courts to reach cou nterintuitive results”);

United States v. Doctor

, 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring) (stating

that categorical approach has caused judges to “swap[] factual inquiries for an endless

gauntlet of abstract legal questions,” resultin g in their “paradoxically finding even the

worst and most violent offenses not to constitute crimes of violence”). Even assuming that

this unsatisfactory feature is compelled by the Sixth Amendment for post

- conviction

judicial identifications of crimes of violence, it need not obtain with respect to jury

identifications based on real

- world conduct proved at defendant’s trial.14

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United States v. Barrett

34 not itself weigh the evidence. It asks only “ whether the record

contains evidence that could rationally lead to a contrary finding with

respect to the omitted element.” Id. at 19. If it could not, then the

omission is harmless beyond a reasonable doubt. See id.

That is this case. As detailed in the fact section o f this opinion,

violence was the very hallmark of the charged conspiracy. Each of

the eight robberies and three attempted robberies discussed supra at

6

– 9 used, attempted to use, or planned to use physical force. Victims

were routinely punched

, sometimes with sufficient force to break

bones, draw blood, or result in a loss of consciousness. Victims’ lives

were threatened at knifepoint and gunpoint

. Baseball bats were used

to shatter the glass windows of a victim’s car while he was in it and

then to t hre aten him with physical injury. Guns were not only

brandished, but also discharged

, in one case point blank to kill a

robbery target who had evaded the conspirators’ attempt to rob him

of cash that he was transporting. This real

- world evidence can only

su pport a finding that the charged conspiracy, by its nature

, involved

a substantial risk of the use of physical force. Indeed, no other

conclusion is rationally possible

. Thus

, the failure to submit the

§ 924(c)(3) inquiry to the jury is necessarily harmless error beyond a

reasonable doubt

.

Accordingly, we affirm Barrett’s conviction on Count Two

because (1) following our precedent by reference only to the elements

of a conspiracy to commit Hobbs Act robbery, that offense is a

categorical crime of vio lence as defined by § 924(c)(3)( A ) together

with § 924(c)(3)(B) ; and (2) § 924(c)(3)(B) is not invalid after

Dimaya / Johnson because it can reasonably be construed to warrant

conduct

- specific application by a trial jury, and the trial evidence here14

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United States v. Barrett

35 admits n o rational finding but that the Hobbs Act robbery conspiracy

was a crime of violence under that statutory section.

CONCLUSION

To summarize, we hold as follows:

1. Our decision in United States v. Hill

, 890 F.3d 51 (2d Cir. 2018)

,

compels the conclusion that the predicate substantive Hobbs Act

robberies supporting Barrett’s § 924(c)(1)(A) and (j) convictions on

Counts Four, Six, and Seven are categorical crimes of violence as

defined in 18 U.S.C. § 924(c)(3)(A).

2. The predicate Hobbs Act robbery conspiracy supporting

Barrett’s § 924(c)(1)(A) conviction on Count Two is a crime of

violence because,

a. o ur precedent recognizes a conspiracy to commit a

categorical crime of violence as itself a categorical crime of

violence, and we can apply that precedent here to

§ 924(c)(3)(A) together with § 924(c)(3)(B) by reference only to

the elements of a Hobbs Act r obbery conspiracy;

b. § 924(c)(3)(B) is not unconstitutionally vague after

Sessions v. Dimaya

, 138 S. Ct. 1204 (2018), and Johnson v. United

States

, 135 S. Ct. 2551 (2015), because it can be construed to

warrant conduct

- specific application by the jury that d ecided

Barrett’s § 924(c)(1)(A) guilt, thereby avoiding both the due

process and Sixth Amendment concerns noted in those cases;

and

c. a lthough no § 924(c)(3)(B) inquiry was submitted to the

jury in this case, the error was harmless beyond a reasonable14

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United States v. Barrett

36 doubt because the record evidence of beatings, shootings, and

murder in the course of the robbery conspiracy admit s no

other rational finding but that the charged conspiracy was a

crime of violence under that statutory definition.

Accordingly, for the reasons s tated in this opinion, as well as

the summary order filed today, we AFFIRM the judgment of

conviction

.