United States v. Barrett

102 F.4th 60

UNITED STATES of America, Appellee, v. Dwayne BARRETT, aka Sealed Defendant 3, aka Tall Man, Defendant-Appellant Fahd Hussain, aka Sealed Defendant 1, aka Ali, aka Moe, Jermaine Dore, aka Sealed Defendant 2, aka St. Kitts, aka Blaqs, Taijay Todd, aka Sealed Defendant 4, aka Biggs, Tameshwar Singh, aka Sealed Defendant 5, aka Jerry, Shea Douglas, Damian Cunningham, aka Sealed Defendant 1, aka Jaba, Defendants.

No. 21-1379

August Term 2023

United States Court of Appeals, Second Circuit

Argued: September 11, 2023

Decided: May 15, 2024

On Appeal from the United States District Court for the Southern District of New York (Sullivan, J.)

Matthew B. Larsen, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.

Michael D. Maimin, Assistant United States Attorney (Hagan Scotten, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: Raggi, Lohier, and Carney, Circuit Judges.

Reena Raggi, Circuit Judge:

Defendant Dwayne Barrett comes before this court for the third time to challenge a judgment of conviction entered in the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) after a jury trial at which Barrett was found guilty on multiple counts of conspiratorial and substantive Hobbs Act robbery; the use of firearms during such robberies; and, in one robbery, the murder of a robbery victim. See 18 U.S.C. §§ 924(c)(1)(A), 924(j), 1951 & 2; United States v. Barrett ("Barrett I"), 903 F.3d 166 (2d Cir. 2018) & United States v. Barrett, 750 F. App'x 19 (2d Cir. 2018), both vacated — U.S. —, 139 S. Ct. 2774, 204 L.Ed.2d 1154 (2019); United States v. Barrett ("Barrett II"), 937 F.3d 126 (2d Cir. 2019). On this appeal of the amended judgment entered on May 21, 2021, which followed our remand in Barrett II, Barrett argues that (1) his initial appellate counsel¹ was constitutionally ineffective in failing to mount a sufficiency challenge to his convictions on Counts Five, Six, and Seven for substantive Hobbs Act robbery and related firearms and murder counts on the ground that the evidence proved only attempted robbery; (2) in any event, substantive Hobbs Act robbery cannot be deemed a categorical crime of violence as required for conviction on Counts Four, Six, and Seven in light of United States v. Taylor, 596 U.S. 845, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022); (3) the total 50-year prison sentence imposed on remand is procedurally unreasonable based on the district court's (a) erroneous application of U.S.S.G. § 2A1.1 to the calculation of his Sentencing Guidelines range, and (b) misapprehension that a consecutive sentence was mandated by 18 U.S.C. § 924(c)(1)(D)(ii) for § 924(j) murder (Count Seven); and (4) such a lengthy sentence is substantively unreasonable.

For the reasons stated herein, this court rejects all of Barrett's arguments as without merit except for his consecutive § 924(j) sentence challenge. The Supreme Court's recent decision in Lora v. United States, 599 U.S. 453, 143 S.Ct. 1713, 216 L.Ed.2d 400 (2023) (holding that § 924(j) sentences may be imposed concurrently or consecutively), compels the conclusion that the district court was mistaken in thinking that a consecutive § 924(j) sentence was mandated.² Accordingly, we again vacate Barrett's sentence and remand for the limited purpose of resentencing consistent with Lora and this opinion. In so doing, we clarify that Barrett must be sentenced separately for his Count Six § 924(c) firearms crime and his Count Seven § 924(j) murder crime, consistent with the distinct sentencing schemes established under the two statutory provisions. In all other respects, we affirm the challenged judgment.

BACKGROUND

I. The December 12, 2011 Robbery, Firearms Use, and Murder

Between August 2011 and January 2012, Dwayne Barrett and various confederates "commit[ted] a series of frequently armed, and invariably violent, robberies." Barrett I, 903 F.3d at 170. We assume familiarity with Barrett I's discussion of these robberies and here detail only those facts necessary to resolve this appeal.

One robbery, the first of two committed by Barrett and his confederates on December 12, 2011, is at the core of Barrett's claim that appellate counsel was constitutionally ineffective in failing to mount a sufficiency challenge to his conviction on Counts Five, Six, and Seven. In recounting facts pertinent to that robbery, we necessarily view the evidence in the light most favorable to the government. See, e.g., United States v. Avenatti, 81 F.4th 171, 175 (2d Cir. 2023).

Trial evidence showed that on the morning of December 12, 2011, Barrett and two confederates, Jermaine Dore and Taijay Todd, used Barrett's Mercedes Benz to follow a minivan operated by livery driver Zhao Qiang Liang from a motel in the Bronx to a location in Mount Vernon, New York. There, the van's passengers, Gamar Dafalla and Jamal Abdulla, sold a waiting customer over one hundred cartons of untaxed cigarettes for $10,000 in cash.

When the transaction concluded, the minivan and its occupants travelled to a site a few blocks away where Dafalla counted the sales proceeds before giving $200 to his associate, Abdulla. Meanwhile, Barrett's Mercedes had followed the minivan to where it had stopped. While Barrett remained in the car, Dore and Todd approached the van. Opening the van's driver-side door, Dore pressed a gun against Zhao's head while, at the same time, Todd opened the passenger-side door and pressed a gun against Abdulla's head. In response to the robbers' demand for the money, Abdulla threw them the $200 Dafalla had recently handed him. Dore and Todd then pulled Zhao and Abdulla out of the van, themselves entered the vehicle, and drove off with Dafalla and the cigarette sale proceeds inside. On foot, Abdulla chased after the van for about a hundred yards, shouting for Dafalla to throw the money to him, whereupon Dafalla threw money out of the vehicle. Upon realizing what Dafalla had done, Dore shot him dead and then continued to drive off with Todd.

Soon after, Abdulla reported the robbery to the police. Later that morning, officers located Zhao's minivan, its motor still running, abandoned on a quiet Bronx street approximately a mile away from the events just described. Inside, they found Dafalla's dead body and a stack of cash under a seat.

Within hours, Barrett joined Dore and another confederate in robbing a tobacco salesman of approximately $15,000. During that robbery, while Dore again confronted the victim with a gun, Barrett threatened the man's life with a knife, telling him not to move or "I will murder you." Trial Tr. 685; see Barrett I, 903 F.3d at 171.

Thereafter, Barrett and Dore, each wearing latex gloves, wiped down Barrett's Mercedes with cleaning solution. After Dore's arrest later that same day on unrelated charges, Barrett went to the home of Dore's girlfriend to dispose of the gun used to kill Dafalla. Barrett and another confederate, "Duffel," retrieved the gun and drove to the West Side Highway, where "Duffel" threw it into the Hudson River.

II. Indictment and Initial Sentencing

In the operative June 25, 2012 superseding indictment, the grand jury charged Barrett with conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951 (Count One); using a firearm in the commission of that conspiracy, id. §§ 924(c)(1)(A) & 2 (Count Two); two substantive Hobbs Act robberies, id. §§ 1951 & 2 (Counts Three and Five); and using firearms in the commission of those robberies, id. §§ 924(c)(1)(A) & 2 (Counts Four and Six); in one case causing death, id. §§ 924(j)(1) & 2 (Count Seven). Count Five specifically charged that on December 12, 2011, "DORE and BARRETT robbed at gunpoint three victims engaged in a transaction involving the sale of cigarettes, during which robbery one of the victims was shot and killed." Superseding Indictment ¶ 6. Count Five's substantive Hobbs Act robbery served as the predicate crime of violence underlying Count Six's § 924(c) firearms charge and Count Seven's § 924(j) murder charge. Id. ¶¶ 7-8. Tried together, Barrett and Dore were each found guilty on all seven counts of the indictment.³

At Barrett's July 16, 2014 sentencing, the district court determined that the law mandated a total minimum term of 55 years' incarceration: five years for the § 924(c) firearms use charged in Count Two, a consecutive 25 years for the § 924(c) firearms use charged in Count Four, and a consecutive 25 years for the § 924(j) murder charged in Count Seven, with which the court concluded the predicate § 924(c) firearms use charged in Count Six merged.⁴ In so ruling as to Count Seven, the district court relied on a summary decision of this court, which stated that § 924(j) "incorporate[s] § 924(c)'s penalty enhancements, specifically, 25-year minimum sentences for second or subsequent § 924(c) convictions and mandatory consecutive sentencing." United States v. Young, 561 F. App'x 85, 93 (2d Cir. 2014) (internal quotation marks and citation omitted); see Sent'g Tr. 17-18 (citing Young). Barrett objected, citing the Eleventh Circuit's contrary holding in United States v. Julian, 633 F.3d 1250, 1253 (11th Cir. 2011) (holding § 924(j) not subject to § 924(c)'s sentencing mandates). While adhering to Young, the district court noted that Barrett might nevertheless succeed on his preserved objection to a consecutive § 924(j) sentence because "[t]he Second Circuit may decide to reverse itself. Or maybe the Supreme Court will decide to reverse the Second Circuit. And then we'll be back here for a resentencing." Sent'g Tr. 19. After calculating Barrett's Guidelines range to recommend life imprisonment, the district court sentenced him to a prison term of 20 years on Count One; a consecutive five-year term on Count Two; 15-year terms on Counts Three and Five, concurrent to each other, but consecutive to the...