United States v. Barrett

• Court: Court of Appeals for the Second Circuit
• Decided: April 9, 2026
• Docket: 21-1379
• Status: Published

Opinion

21-1379 United States v. Barrett

1 In the 2 United States Court of Appeals 3 for the Second Circuit 4

5 AUGUST TERM 2023

6 No. 21-1379

7 UNITED STATES OF AMERICA, 8 Appellee,

9 v.

10 DWAYNE BARRETT, AKA SEALED DEFENDANT 3, AKA TALL MAN, 11 Defendant-Appellant,

12 FAHD HUSSAIN, AKA SEALED DEFENDANT 1, AKA ALI, AKA MOE, 13 JERMAINE DORE, AKA SEALED DEFENDANT 2, AKA ST. KITTS, AKA 14 BLAQS, TAIJAY TODD, AKA SEALED DEFENDANT 4, AKA BIGGS, 15 TAMESHWAR SINGH, AKA SEALED DEFENDANT 5, AKA JERRY, SHEA 16 DOUGLAS, DAMIAN CUNNINGHAM, AKA SEALED DEFENDANT 1, AKA 17 JABA, 18 Defendants. 19 __________

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

23 ARGUED: SEPTEMBER 11, 2023 24 DECIDED: APRIL 9, 2026 25 ________________

26 Before: RAGGI, LOHIER, and CARNEY, Circuit Judges. 27 ________________ 1 On remand from the Supreme Court for resentencing 2 consistent with Barrett v. United States, 146 S. Ct. 482 (2026), this 3 court’s opinion in United States v. Barrett, 102 F.4th 60 (2d Cir. 2024) is 4 withdrawn in part and the challenged judgment of the United States 5 District Court for the Southern District of New York (Sullivan, J.) is 6 AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

7 _________________ 8 9 MATTHEW B. LARSEN, Appeals Bureau, 10 Federal Defenders of New York, Inc., New 11 York, NY, for Defendant-Appellant. 12 13 MICHAEL D. MAIMIN, Assistant United 14 States Attorney (Hagan Scotten, Assistant 15 United States Attorney, on the brief), for 16 Damian Williams, United States Attorney 17 for the Southern District of New York, New 18 York, NY, for Appellee. 19 _________________ 20 21 REENA RAGGI, Circuit Judge:

22 Defendant Dwayne Barrett has come before this court 23 numerous times to challenge judgments of conviction entered in the 24 United States District Court for the Southern District of New York 25 (Richard J. Sullivan, Judge) after a jury trial at which Barrett was found 26 guilty of multiple counts of conspiratorial and substantive Hobbs Act 27 robbery; the use of firearms during such robberies; and in one 28 robbery, the murder of a robbery victim. See 18 U.S.C. 29 §§ 924(c)(1)(A)(i), 924(j), 1951 and 2; United States v. Barrett (“Barrett 30 I”), 903 F.3d 166 (2d Cir. 2018) & United States v. Barrett, 750 F. App’x

2 1 19 (2d Cir. 2018), both vacated, 139 S. Ct. 2774 (2019); United States v. 2 Barrett (“Barrett II”), 937 F.3d 126 (2d Cir. 2019); United States v. Barrett 3 (“Barrett III”), 102 F.4th 60 (2d Cir. 2024), reversed in part and remanded, 4 146 S. Ct. 482 (2026) (“Barrett IV”). We assume familiarity with these 5 opinions and the underlying facts that they detail.

6 Barrett’s case is again before this court on remand from the 7 Supreme Court, which recently clarified that—notwithstanding its 8 recognition in Lora v. United States, 599 U.S. 453 (2023), that a § 924(c) 9 firearms crime is punishable under a different sentencing scheme 10 than a § 924(j) murder committed in the course of a § 924(c) crime— 11 “Congress has not authorized convictions under both 18 U.S.C. 12 §§ 924(c)(1)(A)(i) and (j) for one act that violates both provisions.” 13 Barrett IV, 146 S. Ct. at 497. Insofar as this court concluded otherwise 14 and ordered the district court to resentence Barrett on remand on both 15 his § 924(c)(1)(A)(i) conviction and his § 924(j) conviction (Counts Six 16 and Seven of the underlying indictment), see Barrett III, 102 F.4th at 17 88–96, the Supreme Court has now reversed that “part of the 18 judgment” and “remanded for further proceedings,” Barrett IV, 146 S. 19 Ct. at 497. Heedful of that ruling, we now withdraw Part III.A.2.c. 20 from our opinion in Barrett III, and we remand this case to the district 21 court for resentencing consistent with the Supreme Court’s decision.

22 Because the discussion in Barrett IV does not permit the district 23 court on remand to sentence Barrett on, or to enter judgments of 24 conviction for, both Counts Six and Seven, the district court should 25 “exercise its discretion to vacate one of the convictions.” Ball v. United 26 States, 470 U.S. 856, 865 (1985). In doing so, it should give due weight 27 to the government’s view as to which count should be vacated,

3 1 mindful that (1) the government’s charging discretion permits it to 2 charge conduct under different statutory “provisions . . . even though 3 the defendant could not in the end stand convicted of both offenses,” 4 id. at 860 n.8; see Barrett IV, 146 S. Ct. at 495 (citing Ball); (2) the 5 government here carried its burden of proof on both counts; and (3) 6 neither Lora nor Barrett IV had been decided when this case went to 7 trial.

8 Barrett further urges us to withdraw from our Barrett III 9 opinion Part III.B, which concludes that the aggregate 50-year 10 sentence imposed in this case was substantively reasonable. See 11 Barrett III, 102 F.4th at 96–97. We decline to do so. In remanding for 12 resentencing in Barrett IV, the Supreme Court did not consider, much 13 less reverse, this conclusion. Our denial of rehearing and rehearing 14 en banc thus stands as to that portion of the opinion. See Order, Barrett 15 III, No. 21-1379, Doc. 165 (2d Cir. July 19, 2024). Nevertheless, we do 16 not foreclose Barrett from arguing on remand for resentencing that an 17 aggregate 50-year sentence is unwarranted in light of the 18 circumstances presented on remand, which may or may not differ 19 from those evident at the time of the now-vacated sentence. See 20 generally United States v. Hertular, 562 F.3d 433, 445–46 (2d Cir. 2009); 21 18 U.S.C. § 3553(a).

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

4 1 1379, Doc. 191 (2d Cir. Mar. 27, 2026). Therefore, Barrett’s request for 2 reassignment to a different judge is denied.

3 To conclude, the court hereby

4 (1) WITHDRAWS Part III.A.2.c. of our May 15, 2024 opinion, 5 see Barrett III, 102 F.4th at 88–96; 6 (2) VACATES in part the May 15, 2024 judgment of this court 7 insofar as it vacated the district court’s May 21, 2021 8 amended judgment of conviction as to sentence and 9 remanded with instructions to impose separate sentences 10 on Count Six and Count Seven, see id. at 97–98; 11 (3) VACATES in part the district court’s May 21, 2021 amended 12 judgment of conviction only as to its sentence; 13 (4) REMANDS with instructions that the district court vacate 14 the judgment of conviction as to either Count Six or Count 15 Seven and resentence Barrett consistent with the Supreme 16 Court’s decisions in Lora v. United States, 599 U.S. 453 (2023), 17 and Barrett v. United States, 146 S. Ct. 482 (2026); as well as 18 this opinion; and, to the extent not modified by this opinion, 19 the court’s May 15, 2024 opinion, see Barrett III, 102 F.4th 60 20 (2d Cir. 2024); 21 (5) DENIES Barrett’s request for reassignment to a different 22 judge on remand; and 23 (6) AFFIRMS the district court’s May 21, 2021 amended 24 judgment in all other respects.