United States v. Barrett - Firearms Conviction and Sentencing

21-1379 United States v. Barrett In the 1

United States Court of Appeals 2 for the Second Circuit 3

4 A DUGUST TERM 2023 5 No. 21-1379 6 U NITED STATES OF AMERICA, 7

Appellee, 8

1. 9 DWAYNE BARRETT, AKA SEALED DEFENDANT 3, AKA TALL MAN, 10

Defendant-Appellant, 11

FAHD HUSSAIN, AKA SEALED DEFENDANT 1, AKA ALI, AKA MOE, 12 JERMAINE DORE, AKA SEALED DEFENDANT 2, AKA ST. KITTS, AKA 13 BLAQS, TAIJAY TODD, AKA SEALED DEFENDANT 4, AKA BIGGS, 14 TAMESHWAR SINGH, AKA SEALED DEFENDANT 5, AKA JERRY, SHEA 15

OUGLAS, DAMIAN CUNNINGHAM, AKA SEALED DEFENDANT 1, AKA 16

JABA, 17

Defendants. 18

__________ 19 On Appeal from the United States District Court 20 for the Southern District of New York 21 __________ 22

RGUED: SEPTEMBER 11, 2023 23 A

DECIDED: APRIL 9, 2026 24 ________________ 25 Before: RAGGI, LOHIER, and CARNEY, Circuit Judges. 26 ________________ 27

On remand from the Supreme Court for resentencing 1 consistent with Barrett v. United States, 146 S. Ct. 482 (2026), this 2 court's opinion in United States v. Barrett, 102 F.4th 60 (2d Cir. 2024) is 3 withdrawn in part and the challenged judgment of the United States 4 District Court for the Southern District of New York (Sullivan, J.) is 5

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.6

_________________ 7 8 MATTHEW B. LARSEN, Appeals Bureau, 9 Federal Defenders of New York, Inc., New 10 York, NY, for Defendant-Appellant. 11

MICHAEL D. MAIMIN, Assistant United 13 States Attorney (Hagan Scotten, Assistant 14 United States Attorney, on the brief), for 15 Damian Williams, United States Attorney 16 for the Southern District of New York, New 17 York, NY, for Appellee. 18 _________________ 19 20 REENA RAGGI, Circuit Judge: 21 Defendant Dwayne Barrett has come before this court 22 numerous times to challenge judgments of conviction entered in the 23 United States District Court for the Southern District of New York 24 (Richard J. Sullivan, Judge) after a jury trial at which Barrett was found 25 guilty of multiple counts of conspiratorial and substantive Hobbs Act 26 robbery; the use of firearms during such robberies; and in one 27 robbery, the murder of a robbery victim. See 18 U.S.C. 28 §§ 924(c)(1)(A)(i), 924(j), 1951 and 2; United States v. Barrett ("Barrett 29

I"), 903 F.3d 166 (2d Cir. 2018) & United States v. Barrett, 750 F. App'x 30

19 (2d Cir. 2018), both vacated, 139 S. Ct. 2774 (2019); United States v. 1

Barrett ("Barrett II"), 937 F.3d 126 (2d Cir. 2019); United States v. Barrett 2

("Barrett III"), 102 F.4th 60 (2d Cir. 2024), reversed in part and remanded, 3 146 S. Ct. 482 (2026) ("Barrett IV"). We assume familiarity with these 4 opinions and the underlying facts that they detail. 5 Barrett's case is again before this court on remand from the 6 Supreme Court, which recently clarified that--notwithstanding its 7 recognition in Lora v. United States, 599 U.S. 453 (2023), that a § 924(c) 8 firearms crime is punishable under a different sentencing scheme 9 than a § 924(j) murder committed in the course of a § 924(c) crime--10 "Congress has not authorized convictions under both 18 U.S.C. 11 §§ 924(c)(1)(A)(i) and (j) for one act that violates both provisions." 12

Barrett IV, 146 S. Ct. at 497. Insofar as this court concluded otherwise 13

and ordered the district court to resentence Barrett on remand on both 14 his § 924(c)(1)(A)(i) conviction and his § 924(j) conviction (Counts Six 15 and Seven of the underlying indictment), see Barrett III, 102 F.4th at 16 88-96, the Supreme Court has now reversed that "part of the 17 judgment" and "remanded for further proceedings," Barrett IV, 146 S. 18 Ct. at 497. Heedful of that ruling, we now withdraw Part III.A.2.c. 19 from our opinion in Barrett III, and we remand this case to the district 20 court for resentencing consistent with the Supreme Court's decision. 21 Because the discussion in Barrett IV does not permit the district 22 court on remand to sentence Barrett on, or to enter judgments of 23 conviction for, both Counts Six and Seven, the district court should 24 "exercise its discretion to vacate one of the convictions." Ball v. United 25

States, 470 U.S. 856, 865 (1985). In doing so, it should give due weight 26

to the government's view as to which count should be vacated, 27 3

mindful that (1) the government's charging discretion permits it to 1 charge conduct under different statutory "provisions . . . even though 2 the defendant could not in the end stand convicted of both offenses," 3

id. at 860 n.8; see Barrett IV, 146 S. Ct. at 495 (citing Ball); (2) the 4

government here carried its burden of proof on both counts; and (3) 5 neither Lora nor Barrett IV had been decided when this case went to 6 trial. 7 Barrett further urges us to withdraw from our Barrett III 8 opinion Part III.B, which concludes that the aggregate 50-year 9 sentence imposed in this case was substantively reasonable. See 10

Barrett III, 102 F.4th at 96-97. We decline to do so. In remanding for 11

resentencing in Barrett IV, the Supreme Court did not consider, much 12 less reverse, this conclusion. Our denial of rehearing and rehearing 13

en banc thus stands as to that portion of the opinion. See Order, Barrett 14 III, No. 21-1379, Doc. 165 (2d Cir. July 19, 2024). Nevertheless, we do 15

not foreclose Barrett from arguing on remand for resentencing that an 16 aggregate 50-year sentence is unwarranted in light of the 17 circumstances presented on remand, which may or may not differ 18 from those evident at the time of the now-vacated sentence. See 19

generally United States v. Hertular, 562 F.3d 433, 445-46 (2d Cir. 2009); 20

18 U.S.C. § 3553(a). 21 Finally, Barrett requests reassignment of this case to a different 22 judge on remand. The request appears to be grounded in the 23 mistaken assumption that Judge Sullivan participated in this court's 24 July 19, 2024 decision to deny rehearing en banc. See Appellant's Mar. 25 17, 2026 Letter Br. at 6-8. As the court has recently clarified, Judge 26 Sullivan did not participate in that vote. See Order, Barrett III, No. 21-27 4

1379, Doc. 191 (2d Cir. Mar. 27, 2026). Therefore, Barrett's request for 1 reassignment to a different judge is denied. 2 To conclude, the court hereby 3 (1) WITHDRAWS Part III.A.2.c. of our May 15, 2024 opinion, 4

see Barrett III, 102 F.4th at 88-96; 5

(2) VACATES in part the May 15, 2024 judgment of this court 6 insofar as it vacated the district court's May 21, 2021 7 amended judgment of conviction as to sentence and 8 remanded with instructions to impose separate sentences 9 on Count Six and Count Seven, see id. at 97-98; 10 (3) VACATES in part the district court's May 21, 2021 amended 11 judgment of conviction only as to its sentence; 12 (4) REMANDS with instructions that the district court vacate 13 the judgment of conviction as to either Count Six or Count 14 Seven and resentence Barrett consistent with the Supreme 15 Court's decisions in Lora v. United States, 599 U.S. 453 (2023), 16 and Barrett v. United States, 146 S. Ct. 482 (2026); as well as 17 this opinion; and, to the extent not modified by this opinion, 18 the court's May 15, 2024 opinion, see Barrett III, 102 F.4th 60 19 (2d Cir. 2024); 20 (5) DENIES Barrett's request for reassignment to a different 21 judge on remand; and 22 (6) AFFIRMS the district court's May 21, 2021 amended 23 judgment in all other respects. 24