24-830 Barnes v. United States of America
United States Court of Appeals For the Second Circuit
August Term 2024
Argued: February 13, 2025 Decided: December 15, 2025
No. 24-830
CALIEB BARNES,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court for the Southern District of New York Nos. 11-cr-184, 16-cv-4521, Denise L. Cote, Judge.
Before: KEARSE, LEVAL, and SULLIVAN, Circuit Judges.
Petitioner-Appellant Calieb Barnes appeals from an order of the United States District Court for the Southern District of New York (Cote, J.) denying his second motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In that motion, Barnes principally contended that his 2012 conviction under 18 U.S.C. § 924(c) for brandishing a firearm during an attempted Hobbs Act robbery must be vacated in light of the Supreme Court’s holdings in United States v. Davis, 588 U.S. 445 (2019), which invalidated section 924(c)’s “residual clause” as unconstitutionally vague, and United States v. Taylor, 596 U.S. 845 (2022), which held that attempted Hobbs Act robbery is not a predicate “crime of violence” under section 924(c)’s “elements clause.” After reviewing the trial record, the district court concluded that Barnes’s conviction was based on section 924(c)’s elements clause, such that his claim amounted to only a statutory violation under Taylor. Accordingly, the district court denied Barnes’s second motion for failing to establish that his claim relied on a new rule of constitutional law, as required by the Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2255(h); id. § 2244(b)(2)(A).
We conclude that the district court correctly applied the framework set forth in our decisions in Savoca v. United States to determine that, as a matter of historical fact, Barnes’s conviction was based on section 924(c)’s elements clause and therefore did not rely on a new rule of constitutional law. Because we cannot say the district court’s findings were clearly erroneous, we AFFIRM the order of the district court.
AFFIRMED.
DARRELL FIELDS, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for Petitioner-Appellant.
BENJAMIN M. BURKETT (Olga I. Zverovich, on the brief), Assistant United States Attorneys, for Matthew Podolsky, Acting United States Attorney for the Southern District of New York, New York, NY, for Respondent-Appellee.
RICHARD J. SULLIVAN, Circuit Judge:
Petitioner-Appellant Calieb Barnes appeals from an order of the United
States District Court for the Southern District of New York (Cote, J.) denying his
2 second motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. In that motion, Barnes principally contended that his 2012 conviction
under 18 U.S.C. § 924(c) for brandishing a firearm during an attempted Hobbs Act
robbery must be vacated in light of the Supreme Court’s holdings in United States
v. Davis, 588 U.S. 445 (2019), which invalidated section 924(c)’s “residual clause”
as unconstitutionally vague, and United States v. Taylor, 596 U.S. 845 (2022), which
held that attempted Hobbs Act robbery is not a predicate “crime of violence”
under section 924(c)’s “elements clause.” After reviewing the trial record, the
district court concluded that Barnes’s conviction was based on section 924(c)’s
elements clause, such that his claim amounted to only a statutory violation under
Taylor. Accordingly, the district court denied Barnes’s second motion for failing
to establish that his claim relied on a new rule of constitutional law, as required by
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28
U.S.C. § 2255(h); id. § 2244(b)(2)(A).
We conclude that the district court correctly applied the framework set forth
in our decisions in Savoca v. United States to determine that, as a matter of historical
fact, Barnes’s conviction was based on section 924(c)’s elements clause and
therefore did not rely on a new rule of constitutional law. Because we cannot say
3 the district court’s findings were clearly erroneous, we AFFIRM the order of the
district court.
I. BACKGROUND
In 2012, Barnes was convicted after trial of various crimes relating to his
operation of a crack-cocaine business from 2000 to 2010 and his involvement in
marijuana- and firearms-trafficking from 2010 until his arrest in 2011. As relevant
here, Barnes was convicted of attempted Hobbs Act robbery, in violation of 18
U.S.C. § 1951, in connection with a June 2006 incident in which Barnes pistol-
whipped a local drug dealer while he and two associates attempted to rob the
dealer of kilograms of cocaine (“Count Four”); brandishing a firearm in
furtherance of a crime of violence, specifically the June 2006 attempted robbery, in
violation of 18 U.S.C. § 924(c) (“Count Five”); murder while engaged in a narcotics
conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A), in connection with his and his
co-defendant’s shooting of a former associate over a drug-territory dispute in May
2010 (“Count Six”); and using a firearm in furtherance of a crime of violence,
specifically the May 2010 murder, in violation of 18 U.S.C. § 924(c) (“Count
Seven”).
4 Under section 924(c), a defendant who “uses or carries a firearm” “during
and in relation to any crime of violence” is subject to certain mandatory-minimum
terms of imprisonment that must run consecutively to any other term of
imprisonment imposed. 18 U.S.C. § 924(c)(1)(A), (c)(1)(D)(ii). Section 924(c)
provides two definitions of a “crime of violence.” First, under the “elements
clause,” a crime of violence is a felony offense that has, “as an element[,] the use,
attempted use, or threatened use of physical force against the person or property
of another.” Id. § 924(c)(3)(A). Second, under the “residual clause,” a crime of
violence includes any felony offense 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.” Id. § 924(c)(3)(B). At the time of Barnes’s
sentencing, each subsequent conviction under section 924(c) carried a mandatory-
minimum consecutive term of imprisonment of twenty-five years. See id.
§ 924(c)(1)(C)(i).
The district court principally sentenced Barnes to a total of 100 years’
imprisonment, which included three consecutive terms of imprisonment of five,
twenty-five, and twenty-five years on Counts Two, Five, and Seven, respectively.
Barnes timely appealed his conviction and sentence, arguing that he did not
5 receive a fair trial due to various erroneous evidentiary rulings and the district
court’s refusal to give a multiple-conspiracy charge, and that he was improperly
sentenced to consecutive terms on his section 924(c) convictions. This Court
affirmed. See United States v. Barnes, 560 F. App’x 36 (2d Cir. 2014). In June 2015,
Barnes filed a pro se motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255, asserting that both trial and appellate counsel provided him with
ineffective assistance. In February 2016, the district court denied his motion and
declined to issue a certificate of appealability.
A few months later, Barnes filed a second section 2255 motion, arguing that
his section 924(c) convictions on Counts Five and Seven must be vacated because
the predicate offenses underlying those convictions – attempted Hobbs Act
robbery and murder while engaged in a narcotics conspiracy, respectively – did
not qualify as crimes of violence in light of Johnson v. United States (“2015 Johnson”),
576 U.S. 591 (2015). In that case, the Supreme Court held that a provision of the
Armed Career Criminal Act (“ACCA”) – the “residual clause” for defining a
“violent felony” – was unconstitutionally vague. 2015 Johnson, 576 U.S. at 606; see
18 U.S.C. § 924(e)(2)(B)(ii). The district court transferred Barnes’s motion to this
Court for treatment as a motion for leave to file a successive section 2255 motion
6 pursuant to 28 U.S.C. § 2255(h). While Barnes’s motion was pending before this
Court, the Supreme Court decided United States v. Davis, similarly holding that the
residual clause of section 924(c) was unconstitutionally vague. See 588 U.S. at 448.
On October 1, 2020, we granted Barnes leave to file a successive section 2255
motion, concluding that he had made a “prima facie showing that the proposed
[section] 2255 motion satisfies the requirements of [section] 2255(h)” based
specifically on the argument that his section 924(c) conviction in Count Five,
premised on attempted Hobbs Act robbery, “is no longer valid after [2015] Johnson
and Davis.” App’x at 173. On remand, the district court stayed Barnes’s second
section 2255 motion pending a decision from this Court on whether attempted
Hobbs Act robbery qualified as a crime of violence under section 924(c)’s elements
clause – an issue that had been raised in several cases then pending on appeal.
During this stay, the Supreme Court answered that question in United States v.
Taylor, holding that attempted Hobbs Act robbery is not a crime of violence under
section 924(c)’s elements clause. See 596 U.S. at 850–51.
The district court ultimately denied Barnes’s second section 2255 motion,
concluding that he had not satisfied the threshold statutory requirements for filing
a successive application for relief – namely, that the motion must contain a claim
7 that relies on “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” 28
U.S.C. § 2255(h)(2); id. § 2244(b)(2)(A). Following the frameworks set out in our
two decisions in Savoca v. United States, the district court explained that whether
Barnes’s claim relied on a “new rule of constitutional law” turned on whether
Barnes’s section 924(c) conviction under Count Five was based on the residual
clause, which Davis invalidated as unconstitutionally vague, or the elements
clause, which Taylor determined as a matter of statutory interpretation could not
be met by attempted Hobbs Act robbery. 1 The district court then concluded that,
based on its review of the record, Barnes’s Count Five conviction was based on
section 924(c)’s elements clause, such that his claim amounted to only a “statutory
violation” that did not rely on a new rule of constitutional law. Sp. App’x at 13,
1 In December 2021, we affirmed, in a published opinion, the district court’s dismissal of a successive section 2255 motion in which the defendant challenged (1) his sentencing enhancement under ACCA in light of 2015 Johnson, and (2) his section 924(c) conviction predicated on attempted Hobbs Act robbery. See Savoca v. United States (“Savoca I”), 21 F.4th 225, 227 (2d Cir. 2021), vacated in part on reh’g, No. 20-1502, 2022 WL 17256392 (2d Cir. Nov. 29, 2022). In rejecting Savoca’s section 924(c) claim, we affirmed the district court’s conclusion that his argument was both procedurally barred and foreclosed on the merits in light of our then-controlling precedent, which held that attempted Hobbs Act robbery was a crime of violence under section 924(c)’s elements clause. See id. at 229 (citing United States v. McCoy, 995 F.3d 32, 57 (2d Cir. 2021)). After the Supreme Court’s decision in Taylor, we issued a summary order granting Savoca’s petition for rehearing, vacating our prior holding with respect to his section 924(c) claim, and remanding to the district court for further consideration of that claim. See Savoca v. United States (“Savoca II”), No. 20-1502, 2022 WL 17256392, at *3 (2d Cir. Nov. 29, 2022).
8 24. 2 The district court therefore denied Barnes’s motion, but granted him a
certificate of appealability under 28 U.S.C. § 2253(c). This appeal followed.
II. STANDARD OF REVIEW
We review “de novo the legal conclusions underlying a district court’s
[consideration] of a motion for relief under 28 U.S.C. § 2255,” but “will defer to a
district court’s findings of fact unless they are clearly erroneous.” Massey v. United
States, 895 F.3d 248, 251 n.7 (2d Cir. 2018) (alterations accepted and internal
quotation marks omitted). The district court’s determination that the record
reflects a defendant’s conviction based on section 924(c)’s elements clause, as
opposed to the residual clause, is “manifestly a fact-specific undertaking” and thus
is entitled to clear-error review. Savoca v. United States (“Savoca I”), 21 F.4th 225,
232 (2d Cir. 2021) (reviewing for clear error the district court’s finding that the
defendant was sentenced under ACCA’s enumerated clause, not its residual
clause), vacated in part on reh’g, No. 20-1502, 2022 WL 17256392 (2d Cir. Nov. 29,
2The district court also rejected Barnes’s challenge to his Count Seven section 924(c) conviction, which was predicated on the offense of murder while engaged in a narcotics conspiracy. As the district court noted, Barnes himself “recognize[d] that the law in the Second Circuit d[id] not currently support his claim,” but he nevertheless “s[ought] to preserve [it] for a potential certiorari petition to the Supreme Court.” Sp. App’x at 9 n.1. 9 2022). 3 Under that “deferential” standard, we will reverse a district court’s finding
only if “on the entire evidence we are left with the definite and firm conviction
that a mistake has been committed.” Id. at 231 (alterations accepted and internal
quotation marks omitted).
III. DISCUSSION
Under AEDPA, defendants who have already filed one section 2255 motion
must overcome “stringent limits” to bring a “second or successive application for
a writ of habeas corpus.” Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998).
Relevant here, a federal habeas petitioner may show that his second or successive
motion contains a claim that relies on “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(2); id. § 2244(b)(2)(A); see, e.g., Savoca I, 21 F.4th
at 230; Herrera-Gomez v. United States, 755 F.3d 142, 147 (2d Cir. 2014). Importantly,
this Court’s prior “determination that [Barnes] had made a prima facie showing
that his [second section 2255] motion satisfied the requirements of [section] 2244
and [section] 2255(h),” accompanied by a grant of leave for Barnes to file that
3In various decisions, we have sometimes referred to the equivalent of section 924(c)’s elements clause in ACCA as the “enumerated clause” and sometimes as the “force clause.” These three terms are interchangeable. 10 motion, “was not a finding that [he] actually satisfied those requirements.”
Massey, 895 F.3d at 251. Instead, the district court was obliged to “engage in a
searching inquiry, pursuant to which it [was required to] ‘dismiss any claim
presented in a second or successive application unless the applicant [could] show[]
that the claim satisfie[d] AEDPA’s requirements.’” Savoca I, 21 F.4th at 230
(alterations accepted) (quoting 28 U.S.C. § 2244(b)(4)).
A. Barnes’s Count Five Section 924(c) Conviction
Barnes principally argues that his Count Five conviction must be vacated
because attempted Hobbs Act robbery, the offense upon which that conviction was
predicated, does not qualify as a “crime of violence” under section 924(c) after (1)
Davis invalidated that statute’s residual clause as unconstitutionally vague, and
(2) Taylor held that attempted Hobbs Act robbery was not a crime of violence
under the elements clause. While no one disputes that Barnes could not be
convicted of Count Five if he were charged with that offense today, the relevant
question here is whether Barnes has shown that this claim in his second section
11 2255 motion relies on a new rule of constitutional law as required by AEDPA. We
find no reversible error in the district court’s conclusion that he has failed to do so.
We begin with the nature of the two Supreme Court decisions underlying
Barnes’s claim. There is no question that, for purposes of section 2255(h), Davis
created a new substantive rule of constitutional law that applies retroactively on
collateral review. See Hall v. United States, 58 F.4th 55, 61–62 (2d Cir. 2023). By
contrast, as Barnes acknowledges, Taylor was a “statutory” decision – that is, one
that “interpret[ed]” the meaning of a “crime of violence” and “the reach of
[section] 924(c)(3)(A)” as a matter of statutory construction. Taylor, 596 U.S. at 857–
58; see, e.g., Savoca v. United States (“Savoca II”), No. 20-1502, 2022 WL 17256392, at
*2 (2d Cir. Nov. 29, 2022) (identifying a Taylor-based argument as a “statutory”
one); Fernandez v. United States, 114 F.4th 1170, 1178 (11th Cir. 2024) (same). And
because Taylor simply involved the interpretation of section 924(c)’s elements
clause, its holding did not announce “a new rule of constitutional law” within the
meaning of sections 2255(h)(2) and 2244(b)(2)(A). See, e.g., Mata v. United States,
969 F.3d 91, 93–94 (2d Cir. 2020) (denying leave to file a successive section 2255
motion because the Supreme Court’s decision in Rehaif v. United States, 588 U.S.
225 (2019), “resolved only a question of statutory interpretation and did not
12 announce a rule of constitutional law”); Massey, 895 F.3d at 252 (affirming the
denial of a successive section 2255 motion based on Johnson v. United States (“2010
Johnson”), 559 U.S. 133 (2010), because that decision only interpreted ACCA’s
“force clause” and “did not announce a new rule of constitutional law”).
Because Davis is a constitutional decision but Taylor is not, we have
recognized, albeit in an unpublished summary order, that whether a successive
section 2255 claim like Barnes’s “relies on a new rule of constitutional law”
depends on “whether [the section] 924(c) conviction was based on the elements
clause or the residual clause.” Savoca II, 2022 WL 17256392, at *2. Despite our
framing of the relevant inquiry in this way, Barnes contends that his motion relies,
at least in part, on the new rule of constitutional law in Davis because that case is
“necessary to [his] claim’s success.” Barnes Br. at 36. According to Barnes, his
claim for relief depends not only on Taylor’s statutory interpretation of the
elements clause but also on Davis’s constitutional invalidation of the residual
clause because “without Davis, he would have had no basis to challenge his 924(c)
conviction because any error under the elements clause would have been
harmless.” Id. at 7–8. We disagree.
13 As we previously held, a defendant’s “claim relies on a new rule of
constitutional law only if he was sentenced in violation of that new constitutional
rule.” Massey, 895 F.3d at 252. For this reason, the Court in Massey rejected an
argument materially identical to the one Barnes raises here in concluding that the
defendant could not file a successive section 2255 motion to challenge his
sentencing enhancement under ACCA. In Massey, the defendant argued that his
prior state conviction was not a “violent felony” under ACCA’s “force clause” in
light of 2010 Johnson, and that 2015 Johnson’s “constitutional invalidation of
[ACCA’s] residual clause” was “necessary to grant him relief” because otherwise
“his sentence could still have been upheld pursuant to [that] clause.” Id. at 251–
52. We instead defined the relevant inquiry as “whether Massey was sentenced in
violation of the new constitutional rule announced in [2015 Johnson]” – that is,
under ACCA’s unconstitutionally vague residual clause. Id. at 252. Finding that
the record made clear that “Massey’s sentence was enhanced pursuant to . . .
ACCA’s force clause,” we explained that his “claim d[id] not rely on [2015 Johnson]
because his sentence was not in any way predicated on the portion of . . . ACCA
invalidated by that case.” Id. Because “[h]is claim solely relie[d] on [2010
Johnson],” which did not announce a new rule of constitutional law, we concluded
14 that it could not “be bootstrapped to [2015 Johnson] to attain review under
[AEDPA].” Id.
Savoca II likewise supports the conclusion that a defendant challenging a
section 924(c) conviction predicated on Hobbs Act robbery, like Barnes, cannot
satisfy AEDPA’s threshold requirement simply because “part of his argument . . .
invokes the constitutional holding of Davis.” 2022 WL 17256392, at *2. Indeed, if
a defendant’s reliance on Davis in this manner were sufficient, there would have
been no need for the Court in Savoca II to remand the case to the district court to
determine whether Savoca’s section 924(c) conviction was based on the residual
clause and thus premised “on a new rule of constitutional law.” Id.
In short, as we recognized explicitly in Massey in the ACCA context and
implicitly in Savoca II in the section 924(c) context, Barnes cannot overcome
AEDPA’s gatekeeping requirements merely by pairing a statutory decision like
Taylor with a constitutional one like Davis. Instead, the district court must conduct
a “factual inquiry” to “determine which of [section 924(c)’s] two clauses was the
basis for” Barnes’s conviction because this “will answer the question whether [his
second motion] relies on a new rule of constitutional law.” Id. at *3.
15 Here, the district court properly conducted this factual inquiry pursuant to
the three-step process we set out in Savoca I and Savoca II. Under that framework,
a district court must first determine whether the trial record establishes that the
defendant’s “conviction was based on the elements clause or the residual clause.”
Id. The question of whether the trial court record reflects “‘reliance on a particular
. . . clause is, at base, a question of historical fact.’” Id. at *2 (quoting Savoca I, 21
F.4th at 232). Next, if the district court finds the record “‘unclear as to the clause
on which’” the defendant’s conviction was based, the court “may consider
‘[b]ackground legal conditions’” at the time of the conviction. Id. at *3 (quoting
Savoca I, 21 F.4th at 235); see also Savoca I, 21 F.4th at 235 (“[H]abeas district courts
should consider the likelihood that applying a given clause would have been legal
error at the time of [conviction and] sentencing, and should not assume [trial]
courts would have chosen a legally erroneous clause over a legally permissible
one.”). Finally, “[a]fter conducting this factual inquiry, . . . [i]f the district court
determines that the record is inconclusive, then it may confront the question [of]
16 whether a habeas motion relies on a new rule of constitutional law when the record
does not reveal the basis of the [conviction].” Savoca II, 2022 WL 17256392, at *3. 4
As the district court correctly summarized, “[t]he question presented” by
Barnes’s motion was “which clause of [section] 924(c)(3) was responsible for
defining [C]ount [Four]” – the attempted robbery count on which Count Five was
predicated – “as a crime of violence.” Sp. App’x at 12. After reviewing the trial
record, the district court determined that, as a matter of historical fact, Barnes’s
Count Five conviction was premised on the definition of “crime of violence”
contained in section 924(c)’s elements clause – i.e., a felony that “has as an element
the use, attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 924(c)(3)(A). Accordingly, the district court did
not consider background legal conditions existing at the time of Barnes’s
conviction, or reach the question of whether Barnes had satisfied his burden of
4As we acknowledged in Savoca I, “there is currently a circuit split as to a petitioner’s burden of proof where the sentencing record is ‘unclear’ as to which . . . clause an original sentencing court relied on.” 21 F.4th at 234 n.7; see Savoca II, 2022 WL 17256392, at *3 n.1. Some circuits require a defendant to show only that his conviction “may have been predicated on application of [an unconstitutional] residual clause,” e.g., United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (emphasis added), abrogated on other grounds by, Stokeling v. United States, 586 U.S. 73 (2019), while other circuits have held that a defendant bears the burden of showing that, “more likely than not, his [section] 924(c) conviction resulted from application of solely the residual clause,” e.g., Fernandez, 114 F.4th at 1181 (internal quotation marks omitted). Because we affirm based on the district court’s findings at the first step of the Savoca framework, we leave this question for another day. 17 showing, on an unclear record, that his claim relied on a new rule of constitutional
law. Applying our deferential standard of review, we cannot say that the district
court’s findings at step one were clearly erroneous.
The district court first considered, as relevant background, the offense
conduct underlying Count Five, noting that the charge “appeared to fall within
the heartland of a crime of violence, as defined by the [elements] clause in [section]
924(c)(3)(A).” Sp. App’x at 14. Indeed, the government’s evidence reflected that
Barnes used “actual force, indeed the [firearm] itself,” “to physically attack” the
drug dealer whom Barnes and his associates had attempted to rob. Id. Specifically,
the government called witnesses who testified that Barnes “struck the . . . victim
repeatedly in the head and face with the firearm in an effort to obtain drugs” and
further “introduced medical records to corroborate the victim’s injury.” Id.
Accordingly, as the district court reasonably observed, “[n]othing in the nature of
the proof the [g]overnment offered at trial or relied upon in its summation
required the [c]ourt or the parties to consider that the attempted Hobbs Act
robbery was not, in fact, a traditional crime of violence encompassed by the
[elements] clause.” Id. at 15.
18 Consistent with this proof, the district court went on to explain, “the charge
to the jury and even the parties’ requests to charge reflect that Barnes’[s] conviction
was premised on” the definition of crime of violence found in the elements clause.
Id. Reviewing the instructions given to the jury, the district court noted that the
definition of Hobbs Act robbery – provided in relation to conspiracy to commit
Hobbs Act robbery, which was also charged in connection with the June 2006
attempted robbery (“Count Three”) – tracked the elements contained in section
924(c)’s elements clause. That instruction stated that Hobbs Act robbery in this
context means “to take or obtain narcotics or narcotics proceeds from the
suspected narcotics dealer or in the presence of that person; and that the ‘taking’
or ‘obtaining’ was to be against the victim’s will, by means of actual or threatened
force, violence or fear of injury, whether immediately or in the future, to the victim’s person
or property.” App’x at 54 (emphasis added). The jury charge for Count Four –
attempted Hobbs Act robbery – then incorporated this definition of “robbery” and
further instructed the jury that the government had to prove that “the defendant
engaged in conduct amounting to a substantial step toward the commission of that
robbery,” with “substantial step” defined to mean “something more than mere
preparation” but “less than the last act necessary before the actual commission of
19 the attempted crime.” Id. at 56–57. Finally, the jury instruction with respect to
Count Five referred in relevant part to the “attempted robbery charged in Count
Four.” Id. at 57.
Reviewing these instructions together, the district court concluded that the
Count Five jury instruction “relied on its description of the elements of robbery
and attempted robbery to charge the jury on the elements of a crime of violence
contained in the [elements] clause, to wit, an offense that has as an element the
attempted use of physical force.” Sp. App’x at 13; see also id. at 23 (“[T]he crime of
attempt at issue was to commit Hobbs Act robbery, which requires proof that the
taking was against the victim’s will by means of ‘actual or threatened force,
violence or fear of injury.’”). By contrast, the district court noted, the jury
instructions contained no language that would implicate section 924(c)’s residual
clause – i.e., that the Count Five conviction could be based on conduct that only
“by its nature, involve[d] a substantial risk that physical force . . . may be used.”
18 U.S.C. § 924(c)(3)(B). The district court found this omission to be meaningful:
“If the [c]ourt had concluded that Barnes’[s] [Count Five] conviction . . . hinged on
the definition in the residual clause,” it would have instructed the jury that, in
order to convict, it must find “the [g]overnment had proven beyond a reasonable
20 doubt that the attempted Hobbs Act robbery involved a substantial risk that the
defendant may use force against the person or property of another.” Sp. App’x at
13–14.
Finally, the district court considered the special verdict sheet, which
directed the jury, if it found Barnes guilty on Count Five, to indicate whether the
government had “proven beyond a reasonable doubt that a firearm was
brandished during the attempted robbery.” Id. at 18 (internal quotation marks
omitted). The jury charge defined “brandish” as “to display all or part of [a
firearm], or to otherwise make its presence known to another person in order to
intimidate or advise that person that violence is imminently or immediately available,
regardless of whether the firearm is directly visible.” App’x at 58 (emphasis
added). The jury did in fact convict Barnes of brandishing a firearm in connection
with the attempted Hobbs Act robbery, confirming, in the district court’s view,
that he “was convicted of committing attempted robbery through the actual or
threatened use of force.” Sp. App’x at 19.
Barnes’s challenges to the district court’s findings are unpersuasive. Barnes
points out that the trial record does not include any discussion of which section
924(c) clause – elements or residual – his conviction for attempted Hobbs Act
21 robbery fell under, because it was well-understood by the parties and the court at
the time that the offense was a crime of violence under either clause. According
to Barnes, the district court’s failure to explicitly identify the elements clause as the
exclusive basis for his conviction renders the record, as a factual matter, unclear
on this issue. But we have never suggested that the step-one inquiry rises or falls
with the district court’s express and contemporaneous identification of a specific
clause at the time of a defendant’s conviction and sentence. Were that the case,
there would be little need for a court to engage in any searching review of the
historical record as we have directed. See Savoca I, 21 F.4th at 232. To that end, we
have held that a district court did not clearly err in concluding that a defendant’s
sentence was enhanced under ACCA’s enumerated clause, even though neither
the sentencing court nor the government “explicitly discussed [that] clause.” Id.
at 235. And short of asking us to adopt an express-reference requirement, Barnes
does little to explain how the district court clearly erred in concluding that the trial
record – including the jury charge and special verdict sheet – affirmatively
indicated that Barnes’s Count Five conviction was based on the elements clause,
while altogether omitting any mention or even suggestion of the residual clause.
22 Barnes also faults the district court for considering the offense conduct
underlying his Count Five conviction, arguing that whether an offense qualifies as
a “crime of violence” under section 924(c) “is a legal question . . . to be determined
under the categorical approach” without any inquiry into how a particular
defendant committed the offense. Barnes Br. at 41. But this argument
misconstrues the nature of the district court’s inquiry in reviewing Barnes’s second
section 2255 motion, which was to determine whether, as a matter of historical fact,
the record reflected that his conviction was based on section 924(c)’s elements
clause or its residual clause. We see no reason why the district court could not
have considered the evidence introduced at trial as a part of this factual inquiry,
to the extent that such evidence reasonably informed how the district court went
about crafting its charge to the jury. See Savoca I, 21 F.4th at 232 (directing district
courts to “look to a wide range of materials” in undertaking this “fact-specific”
historical inquiry). 5
5In the alternative, Barnes contends that he is entitled to relief because he is similarly situated to the defendant in Taylor, whose section 924(c) conviction predicated on attempted Hobbs Act robbery was vacated on a successive section 2255 motion. But the Supreme Court’s decision in Taylor (and the Fourth Circuit’s decision before that) addressed the question of whether Hobbs Act robbery qualified as a crime of violence under section 924(c), without any mention of section 2255(h)’s gatekeeping requirements for successive motions. See generally Taylor, 596 U.S. 845; United States v. Taylor, 979 F.3d 203 (4th Cir. 2020). We therefore decline to read Taylor as requiring us to conclude that Barnes’s claim relies on a new rule of constitutional law under section 2255(h) and that his Count Five conviction must be vacated. 23 In short, upon reviewing the record, we cannot say that the district court’s
finding – that, as a matter of historical fact, Barnes’s section 924(c) conviction on
Count Five was based on the elements clause – leaves us “with the definite and
firm conviction that a mistake has been committed.” Id. at 231 (internal quotation
marks omitted). To the contrary, we see no reason to question the district court’s
conclusion that Barnes’s claim amounted only to a statutory violation under Taylor
and did not rely on a new rule of constitutional law. Accordingly, Barnes failed to
satisfy AEDPA’s gatekeeping requirements with respect to his successive section
2255 request to vacate his Count Five conviction.
B. Barnes’s Count Seven Section 924(c) Conviction
Barnes also seeks to preserve his claim that his section 924(c) conviction on
Count Seven must be vacated because its predicate offense – murder while
engaged in a narcotics conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A) – is not a
crime of violence under section 924(c)’s elements clause. While the district court
did not analyze whether this claim satisfied AEDPA’s gatekeeping requirements,
Barnes acknowledges on appeal (as he did before the district court) that his
argument on the merits is squarely foreclosed by our precedent. See United States
v. Pastore, 83 F.4th 113, 120 (2d Cir. 2023) (“There is no question that intentionally
24 causing the death of another person involves the use of force.”), aff'd sub nom.,
Delligatti v. United States, 604 U.S. 423 (2025). We therefore reject this argument
here.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the order of the district court.