United States v. Barrett, 083019 FED2, 14-2641-cr

Docket Nº:14-2641-cr
Opinion Judge:REENA RAGGI, CIRCUIT JUDGE.
Party Name:United States of America, Appellee, v. Dwayne Barrett, AKA Sealed Defendant 3, AKA Tall Man, Defendant-Appellant, Fahd Hussain, AKA Ali, AKA Moe, Tameshwar Singh, AKA Sealed Defendant 5, Shea Douglas, Jermaine Dore, AKA St. Kitts, AKA Blaqs, Taijay Todd, AKA Sealed Defendant 4, AKA Biggs, Damian Cunningham, AKA Jaba, Defendants.
Attorney: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...
Judge Panel:Before: Winter, Raggi, and Droney, Circuit Judges.
Case Date:August 30, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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United States of America, Appellee,

v.

Dwayne Barrett, AKA Sealed Defendant 3, AKA Tall Man, Defendant-Appellant,

Fahd Hussain, AKA Ali, AKA Moe, Tameshwar Singh, AKA Sealed Defendant 5, Shea Douglas, Jermaine Dore, AKA St. Kitts, AKA Blaqs, Taijay Todd, AKA Sealed Defendant 4, AKA Biggs, Damian Cunningham, AKA Jaba, Defendants.

No. 14-2641-cr

United States Court of Appeals, Second Circuit

August 30, 2019

Argued: January 22, 2016

On Appeal from the United States District Court for the Southern District of New York

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 challenged his conviction for using firearms in the commission of violent crimes, see 18 U.S.C. § 924(c)(1)(A), in one case causing death, see id. § 924(j). Defendant argued that the predicate felonies for these firearms offenses-substantive and conspiratorial Hobbs Act robbery, see id. § 1951-are not "crime[s] of violence" within the meaning of § 924(c)(3), a conclusion he maintained was compelled by Sessions v. Dimaya, 138 S.Ct. 1204 (2018), and Johnson v. United States, 135 S.Ct. 2551 (2015). This court rejected this argument for reasons explained in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018). Our judgment affirming defendant's conviction has now been vacated by the Supreme Court, and the case remanded for further consideration in light of United States v. Davis, 139 S.Ct. 2319 (2019). Upon such consideration, the court concludes that Barrett's Count Two conviction for using firearms in the commission of Hobbs Act robbery conspiracy must be vacated, but that his conviction continues to warrant affirmance in all other respects.

Affirmed in part, Vacated in part, and Remanded.

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.

Before: Winter, Raggi, and Droney, Circuit Judges.

REENA RAGGI, CIRCUIT JUDGE.

In 2018, this court affirmed defendant Dwayne Barrett's conviction after trial in the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) for multiple counts of conspiratorial and substantive Hobbs Act robbery and related counts of using a firearm during and in relation to these robbery crimes. See 18 U.S.C. §§ 924(c), 924(j), 1951; United States v. Barrett, 903 F.3d 166 (2d Cir. 2018). The Supreme Court has now vacated our judgment and remanded for further consideration in light of United States v. Davis, 139 S.Ct. 2319 (2019). See Barrett v. United States, 139 S.Ct. 2774 (2019). Having given that consideration, we now vacate Barrett's Count Two § 924(c) conviction for using a firearm in committing Hobbs Act robbery conspiracy-the only count of conviction that Barrett challenges in light of Davis. For the reasons stated in our 2018 opinion, and the summary order filed that same day, see United States v. Barrett, 750 Fed.Appx. 19 (2d...

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