United States v. Barrett

21-1379
United States v. Barrett
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2023
No. 21-1379
UNITED S TATES OF AMERICA,
Appellee,
v.
D WAYNE B ARRETT , AKA S EALED DEFENDANT 3, AKA TALL MAN,
Defendant-Appellant,
FAHD H USSAIN, AKA S EALED DEFENDANT 1, AKA ALI , AKA M OE ,
J ERMAINE D ORE , AKA S EALED D EFENDANT 2, AKA S T . KITTS, AKA
B LAQS, TAIJAY TODD, AKA S EALED D EFENDANT 4, AKA B IGGS,
TAMESHWAR S INGH, AKA S EALED DEFENDANT 5, AKA J ERRY , S HEA
D OUGLAS, D AMIAN CUNNINGHAM, AKA S EALED DEFENDANT 1, AKA
J ABA,
Defendants.
__________
On Appeal from the United States District Court
for the Southern District of New York
__________
ARGUED: SEPTEMBER 11, 2023
D ECIDED: MAY 15, 2024
________________
Before: RAGGI , L OHIER , and C ARNEY , Circuit Judges.
________________

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On appeal of an amended judgment entered on remand in the
United States District Court for the Southern District of New York
(Sullivan, J.), defendant Dwayne Barrett argues that (1) his initial
appellate counsel was constitutionally ineffective in failing to mount
a sufficiency challenge to his conviction on one count of substantive
Hobbs Act robbery, and related firearms and murder counts, on the
ground that the evidence demonstrated only attempted robbery; (2)
in any event, after United States v. Taylor, 596 U.S. 845 (2022), Hobbs
Act robbery cannot be identified as a categorical crime of violence;
(3) his 50-year prison sentence is procedurally unreasonable based on
the district court’s (a) erroneous application of U.S.S.G. § 2A1.1 in
calculating his Sentencing Guidelines range, and (b) misapprehension
that a consecutive sentence was mandated for 18 U.S.C. § 924(j)
murder; and (4) such a lengthy sentence is substantively
unreasonable. The court rejects all arguments except the consecutive
sentence challenge, where we are obliged to identify error by the
Supreme Court’s recent decision in Lora v. United States, 599 U.S. 453
(2023).
A FFIRMED IN PART , VACATED IN PART, AND REMANDED.
_________________
MATTHEW B. L ARSEN, 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

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for the Southern District of New York, New
York, NY, for Appellee.
_________________
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 139
S. Ct. 2774 (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 (2022); (3) the total 50-year prison sentence
1 In this opinion, we hereafter refer to Barrett’s initial appellate counsel as
“appellate counsel”; we refer to present appellate counsel as “present
counsel.”

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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 (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.
2 This court contributed to the error by twice upholding the district court’s
conclusion that § 924(c)’s minimum and consecutive sentence mandates
applied to Barrett’s Count Seven § 924(j) sentence. See United States v.
Barrett, 750 F. App’x at 23; Barrett II, 937 F.3d at 129 n.2.

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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.

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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

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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
3 Co-conspirator Todd was convicted separately based on his guilty plea to
conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951, and using a
firearm in the commission of that conspiracy, id. § 924(c)(1)(A)(i). Todd’s
§ 924(c) conviction was vacated following Barrett II, 937 F.3d 126. See infra
at 11.

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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
4 At the time of Barrett’s initial sentencing, § 924(c)(1)(A) stated in pertinent
part as to Barrett’s Count Two crime:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . uses or carries a firearm
. . . shall, in addition to the punishment provided for such
crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5
years.
At the same time, § 924(c)(1)(C) stated in pertinent part as to Barrett’s Count
Four and Six crimes:
In the case of a second or subsequent conviction under this
subsection, the person shall—
(i) be sentenced to a term of imprisonment of not less than 25
years[.]
This second mandatory minimum was amended in 2018 by the First Step
Act. See infra at 11–12.
Section 924(c)(1)(D)(ii) stated in pertinent part:
[N]o term of imprisonment imposed on a person under this
subsection shall run concurrently with any other term of
imprisonment imposed on the person, including any term of
imprisonment imposed for the crime of violence or drug
trafficking crime during which the firearm was used, carried,
or possessed.
Section 924(j) stated in pertinent part:

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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
sentence on Count One; a consecutive 25-year term on Count Four;
A person who, in the course of a violation of subsection (c),
causes the death of a person through the use of a firearm,
shall—
(1) if the killing is a murder (as defined in section 1111), be
punished by death or by imprisonment for any term of years
or for life; and
(2) if the killing is manslaughter (as defined in section 1112),
be punished as provided in that section.

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and a consecutive 25-year term on merged Counts Six and Seven, for
a total prison term of 90 years.
III. First Appeal
On initial appeal, Barrett’s counsel argued that (1) the district
court erred in failing to suppress or in wrongfully admitting certain
evidence; (2) his Count Seven § 924(j) sentence should not have
incorporated § 924(c)’s sentencing mandates; and (3) his convictions
on Counts Two, Four, Six, and Seven were invalid because neither
substantive nor conspiratorial Hobbs Act robbery constitutes a
categorical crime of violence under § 924(c)(3). In pro se filings, Barrett
further challenged (4) his arrest and the search of his car and
cellphone; (5) the government’s compliance with its disclosure
obligations; (6) various evidentiary rulings at trial; (7) the
government’s summation for shifting the burden of proof to
defendant; and (8) the sufficiency of the evidence on Counts Two,
Four, Six, and Seven, in part because of a deficient instruction as to
aiding and abetting.
This court rejected Barrett’s third counseled argument in a
published opinion, see Barrett I, 903 F.3d at 169–70 (holding
conspiratorial and substantive Hobbs Act robbery to be crimes of
violence), and summarily rejected all remaining counseled and pro se
arguments, see United States v. Barrett, 750 F. App’x at 21. The court
denied Barrett’s subsequent requests for panel or en banc rehearing.
Present counsel then joined appellate counsel in petitioning the
Supreme Court for a writ of certiorari to review Barrett’s challenges
to those counts of conviction dependent on the meaning of “crime of
violence” under § 924(c). The Supreme Court granted the petition

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and remanded for further consideration in light of its then-recent
decision in United States v. Davis, 139 S. Ct. 2319 (2019) (holding
residual definition of crime of violence in § 924(c)(3)(B)
unconstitutionally vague). See Barrett v. United States, 139 S. Ct. 2774
(2019).
On remand, where Barrett was again represented by both
appellate and present counsel, this court vacated Barrett’s Count Two
§ 924(c) conviction after determining, in light of Davis, that conspiracy
to commit Hobbs Act robbery is not a crime of violence under
§ 924(c)(3), but we “affirm[ed] Barrett’s conviction in all other respects
and remand[ed] for resentencing in light of our partial vacatur.”
Barrett II, 937 F.3d at 127. At the government’s request, the court
confirmed in Barrett II its earlier summary holding that § 924(j)
incorporates § 924(c)’s penalty mandates and concurrent-sentence
bar. Id. at 129 n.2.
IV. Resentencing
At Barrett’s May 20, 2021 resentencing, the district court noted
that, after Barrett’s initial 2014 sentencing, Congress enacted the First
Step Act of 2018,5 which, among other things, altered certain
mandated prison terms set forth in 18 U.S.C. § 924(c). As relevant
here, the First Step Act “eliminat[ed] the enhanced penalty for
multiple section-924(c) convictions charged in the same indictment
where the defendant does not have a prior final section-924(c)
conviction.” United States v. Collymore, 61 F.4th 295, 298 (2d Cir.
5 See Pub. L. No. 115-391, 132 Stat. 5194 (codified as amended in various
sections of Titles 18, 21, 34, and 42 of the U.S. Code).

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2023).6 The district court held that these amendments to § 924(c)
applied to Barrett’s post-vacatur resentencing, such that it was no
longer “required to impose a 25-year mandatory minimum on Count
Seven, Six/Seven” or Count Four. Resent’g Tr. 10.7 Rather, it
identified the applicable mandatory minimum consecutive sentence
for these counts as five years, as required by §§ 924(c)(1)(A)(i),
924(c)(1)(D)(ii), for a total mandated minimum of ten years.8 At the
6 Section 924(c)(1)(C) now states in pertinent part as follows:
In the case of a violation of this subsection that occurs after a
prior conviction under this subsection has become final, the
person shall—
(i) be sentenced to a term of imprisonment of not less than 25
years[.]
7 On remand, the government challenged the application of First Step Act
amendments to Barrett’s sentence. Because it does not do so on this appeal,
we deem the argument abandoned, see United States v. Quiroz, 22 F.3d 489,
490 (2d Cir. 1994), and we do not address that question on which this court
has yet to rule conclusively, see United States v. Eldridge, 2 F.4th 27, 41 n.17
(2d Cir. 2021) (expressing “no opinion . . . on whether Section 403(a) of the
First Step Act applies at a defendant’s resentencing following vacatur of a
defendant’s original erroneous sentence, where the First Step Act was
enacted after the original sentencing but before resentencing,” but noting
circuit split (emphasis in original)), vacated and remanded on other grounds,
142 S. Ct. 2863 (2022).
8 Count Four of the Superseding Indictment in fact charged Barrett with
“brandish[ing]” a firearm, which carries a seven-year mandatory minimum
sentence, § 924(c)(1)(A)(ii), and Count Six charged “discharg[ing]” a
firearm, which carries a ten-year mandatory minimum sentence,
§ 924(c)(1)(A)(iii). On the existing record, we can only assume that the
district court applied the lesser five-year minimum sentence mandated by
§ 924(c)(1)(A)(i) to these counts (and Count Seven) because the jury had not

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same time, the district court rejected Barrett’s argument that the first-
degree murder Sentencing Guideline, see U.S.S.G. § 2A1.1, should not
apply, and it again calculated Barrett’s recommended Guidelines
range as life imprisonment.
After considering all parties’ submissions and arguments, the
district court sentenced Barrett to concurrent 20-year prison terms on
each Hobbs Act robbery count (i.e., Counts One, Three, and Five),
with a consecutive minimum five-year prison term on Count Four
and a consecutive above-minimum 25-year term on Count Seven
(with which it again deemed Count Six to have merged), for a total
incarceratory sentence of 50 years.
In explaining its decision to sentence Barrett to a total prison
term 40 years lower than its original 90-year sentence, the district
court noted changes not only in relevant sentencing law but also in
Barrett, specifically, his positive prison record and acceptance of
responsibility. See, e.g., Resent’g Tr. 51 (explaining that Barrett’s
“letter reflects . . . mature regret about the things [he] did and the
harms [he] caused”); id. at 52–53 (“[I]t’s a big reduction from 90, and
it’s largely as a result of what you’ve done in the last seven years.”).
At the same time, however, the court explained as follows:
There’s just a limit . . . to how relevant [these mitigating
factors] can be in a case like this . . . [where] crimes over
such a long period of time involved such brutal violence,
violence perpetrated or threatened against a man in front
been asked to make a specific finding of brandishing or discharging. See
Alleyne v. United States, 570 U.S. 99, 117 (2013) (holding such finding
necessary to trigger higher mandatory minimum).

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of his children in his home, violence on the street,
violence that resulted in a man getting killed.
Id. at 50.9 In these circumstances,
the harms and the crimes themselves do require, not as a
matter of the sentencing guidelines, not as a matter of
mandatory minimums, but just as a matter of simple
justice, they do require a significant sentence.
Id. at 51. The district court continued,
this was a serious crime. That’s the reason why I’m
imposing a sentence of 50 years, which is . . . a long
sentence, because these crimes were as brutal as any I’ve
ever seen. They persisted over such a long period of time
after you had had prior convictions and continued even
after the murder of a man during the course of a robbery.
That does require punishment . . . . That’s what drives
this sentence.
Id. at 54. Focusing specifically on the Count Seven murder, the district
court explained that, in its view,
to impose a sentence of less than 25 years on Count Seven
would be, I think, to disrespect the victim, Mr. Dafalla,
and his family.
Id. at 52.
9 In the Count Three robbery, Barrett and his confederates ordered a
poulterer at knifepoint to drive to his home, where they brandished guns
in forcing the poulterer’s brother and his children to “lie on the floor and
not to make a sound.” Barrett I, 903 F.3d at 170.

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Nevertheless, the district court urged Barrett to continue
working for self-improvement in prison. It observed,
that sometimes the law changes. You’ve seen it. You’ve
benefited from it, and it could change again. It’s not
going to get worse for you, I doubt, unless you commit
more crimes even in jail, but it may get better. You may
even get another look down the road. You never know.
Id. at 53.
Following entry of the amended 2021 judgment, appellate
counsel timely filed this notice of appeal, whereupon she then
withdrew, leaving only present counsel representing Barrett.
DISCUSSION
I. Ineffective Assistance of Counsel
Barrett argues that appellate counsel was constitutionally
ineffective in failing to argue that the trial evidence was legally
insufficient to prove him guilty of the December 12, 2011 substantive
Hobbs Act robbery charged in Count Five. Barrett maintains that it
should have been obvious to counsel that the evidence admitted only
a finding of attempted Hobbs Act robbery because, as a result of
Dafalla throwing most of the “$10,000 out of the minivan and his
partner, Abdulla, recover[ing] it,” there was never any actual “taking
or obtaining” of that money by the robbers. Appellant Br. at 27
(quoting 18 U.S.C. § 1951(b)(1)). The point is significant not only
because Barrett was not charged with attempted robbery in Count
Five, but also because attempted robbery is not a categorical crime of
violence, see United States v. Taylor, 596 U.S. 845, and thus cannot serve
as the violent-crime predicate required for conviction on the § 924(c)

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firearms and § 924(j) murder crimes charged in Counts Six and Seven.
Barrett further argues that for a taking or obtaining of property to
constitute a completed robbery, the evidence must show that the
robbers (1) intended permanently to take or obtain the property, and
(2) managed to carry it to a place of safety, neither of which was
demonstrated here.
At the outset, we note that Barrett did not raise this specific
sufficiency argument in the district court. Instead, in moving for
acquittal pursuant to Fed. R. Crim. P. 29(a), trial counsel generally
argued that “the government has not met [its] burden of proof at this
juncture in respect to the crimes charged in the indictment.” Trial Tr.
1717. Because this court has held that a “defendant need not specify
the ground of [a Rule 29] motion in order to preserve a sufficiency
claim for appeal,” United States v. Gjurashaj, 706 F.2d 395, 399 (2d Cir.
1983); accord United States v. Hoy, 137 F.3d 726, 729 (2d Cir. 1998), we
conclude that the sufficiency challenge now urged by Barrett was
adequately preserved for his appellate counsel to have raised it on
direct appeal. Nevertheless, we reject as meritless Barrett’s claim that
appellate counsel was constitutionally ineffective in failing to raise
the urged sufficiency challenge.
A. Standard of Review
“The Sixth Amendment guarantees the right to effective
representation on direct appeal.” Lynch v. Dolce, 789 F.3d 303, 311 (2d
Cir. 2015) (citing Evitts v. Lucey, 469 U.S. 387, 396–97 (1985)). To
succeed on a claim of ineffective appellate counsel, a defendant must
satisfy both prongs of the test stated in Strickland v. Washington, 466
U.S. 668 (1984), i.e., he “must show that (1) counsel’s performance was

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objectively deficient, and (2) [defendant] was actually prejudiced as a
result.” Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012)
(citing Strickland); see Lynch v. Dolce, 789 F.3d at 311 (holding Strickland
test applicable in appellate context).
In most cases, this court prefers for ineffective assistance claims
to be raised in a collateral motion for relief under 28 U.S.C. § 2255
rather than on direct appeal, the former procedure allowing for record
development that can often assist in the necessary two-step analysis.
See Massaro v. United States, 538 U.S. 500, 504–05 (2003); accord United
States v. Vilar, 729 F.3d 62, 98 (2d Cir. 2013). Nevertheless, where an
ineffectiveness claim rests entirely on a legal question that can be
resolved on the existing trial record, we may resolve the matter on
direct appeal. See United States v. Kimber, 777 F.3d 553, 562 (2d Cir.
2015). This is such a case.
At the first step of Strickland analysis, we indulge “a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance, viewing the actions in light of the
law and circumstances confronting counsel at the time.” Harrington
v. United States, 689 F.3d at 129 (internal quotation marks and citations
omitted). To overcome this presumption, a defendant bears a
“heavy” burden because “[t]he determinative question . . . is not
whether counsel ‘deviated from best practices or most common
custom,’ but whether his ‘representation amounted to incompetence
under prevailing professional norms.’” Id. at 129–30 (quoting
Harrington v. Richter, 562 U.S. 86, 105 (2011) (observing that
“[s]urmounting Strickland’s high bar is never an easy task” (internal
quotation marks omitted))).

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As applied to appellate counsel, this standard imposes no duty
“to raise every ‘colorable’ claim.” Jones v. Barnes, 463 U.S. 745, 754
(1983) (rejecting claim that counsel ineffectively appealed multi-count
conviction by briefing only three of seven potential issues discussed
with defendant). Indeed, the Supreme Court has observed that a
competent appellate advocate must “examine the record with a view
to selecting the most promising issues for review” because “[a] brief
that raises every colorable issue runs the risk of burying good
arguments . . . in a verbal mound made up of strong and weak
contentions.” Id. at 752–53. Thus, to demonstrate constitutional
incompetence at the first step of Strickland analysis, Barrett must show
that appellate counsel failed to raise a “significant and obvious”
sufficiency challenge to his Hobbs Act robbery conviction “while
pursuing issues that were clearly and significantly weaker.” Mayo v.
Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (“Generally, only when
ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome.” (internal
quotation marks omitted)).
Even if Barrett could make that showing, at Strickland’s second
step, he must demonstrate that he was prejudiced by counsel’s failure,
i.e., he must show a “reasonable probability that [the omitted
challenge] would have succeeded.” Lynch v. Dolce, 789 F.3d at 311.
Where, as here, the omitted challenge pertains to the sufficiency of the
evidence, this second-step burden is particularly heavy because, even
though our review is de novo, we will not find probable success if,
“crediting every inference that could have been drawn in the
government’s favor and viewing the evidence in the light most
favorable to the prosecution, ‘any rational trier of fact could have

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found the essential elements of the crime beyond a reasonable
doubt.’” United States v. Avenatti, 81 F.4th at 184 (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). A defendant
“cannot show prejudice if the claim or objection that an attorney failed
to pursue lacks merit.” Harrington v. United States, 689 F.3d at 130.
Applying these deferential standards of review, we conclude
that Barrett fails to carry his burden at either step of Strickland
analysis. He was not denied effective assistance of appellate counsel.
B. Strickland Step One
1. Counsel Pursued Strong Arguments that
Significantly Benefited Barrett
Barrett confronts a significant hurdle at the first step of
Strickland analysis because appellate counsel pursued strong
arguments that proved successful in securing significant benefits.
On direct appeal, Barrett’s counsel argued, inter alia, that Hobbs
Act conspiracy was not a categorical crime of violence and, thus, not
a viable predicate for his Count Two § 924(c) firearms conviction.
While this court initially rejected the argument, see Barrett I, 903 F.3d
at 177, appellate counsel, with present counsel, pursued it in the
Supreme Court, which was persuaded for reasons stated that same
term in United States v. Davis, 139 S. Ct. at 2336 (holding residual
definition of crime of violence in § 924(c)(3)(B) unconstitutionally
vague). Thus, the Court remanded Barrett’s case for further
proceedings in light of Davis. See Barrett v. United States, 139 S. Ct.
2774.

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20
On that remand, appellate counsel’s arguments were successful
in securing not only vacatur of Barrett’s conviction on Count Two, but
also a 40-year reduction in the term of incarceration originally
imposed. See supra at 11–13. In granting that relief, the district court
commended appellate counsel as “a wonderful lawyer [who] has
made terrific arguments and really [did] a masterful job of
representing Mr. Barrett.” Resent’g Tr. 52. This record hardly
bespeaks the pursuit of weak arguments reflective of ineffective
representation.
Indeed, appellate counsel’s achievement of a significant
sentence reduction for Barrett is all the more notable given that it was
by no means inevitable. In United States v. Davis, the Supreme Court
specifically stated that “defendants whose § 924(c) convictions are
overturned by virtue of today’s ruling will not even necessarily
receive lighter sentences” because “the district court may increase the
sentences for any remaining counts if such an increase is warranted.”
139 S. Ct. at 2336 (internal quotation marks omitted).10
10 The Davis majority made this observation to assuage the four dissenting
justices’ concern that the Court’s decision could result in “[m]any offenders
who have already committed violent crimes with firearms—and who have
already been convicted under § 924(c)” being “released early from prison.”
Id. at 2354 (Kavanaugh, J., with Roberts, C.J., Thomas and Alito, JJ.,
dissenting). In expressing this concern, the dissenters referenced Barrett’s
case by name and demonstrated obvious familiarity with its troubling facts:
The defendant and his co-conspirators committed a string of
armed robberies of small businesses. During the robberies,
they wore masks and gloves. They were armed with guns,
knives, and baseball bats. They injured several people during

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21
Further, appellate counsel pursued still other arguments
potentially beneficial to Barrett. Her argument that § 924(c)’s penalty
enhancement is not mandated for Barrett’s Count Seven § 924(j)
conviction—also initially rejected by this court, see Barrett II, 937 F.3d
at 129 n.2—now represents controlling law, see Lora v. United States,
599 U.S. at 459, and, as a result, secures Barrett the further remand
ordered on this appeal, see infra Part III.A.2.
Thus, Barrett cannot show that appellate counsel pursued
clearly weak arguments on appeal.
2. The Urged Insufficiency Argument Is Not Strong
Barrett also cannot show that his urged insufficiency argument
was obviously and significantly stronger than the arguments
appellate counsel successfully pursued.
a. Barrett I
Barrett attempts to make that showing by citing a heading in
the Factual Background section of Barrett I, which reads: “Dafalla
Attempted Robbery and Murder.” Barrett I, 903 F.3d at 171. He
submits that this demonstrates this court’s recognition that the trial
evidence as to Count Five proved only attempted, not completed,
robbery. He is mistaken.
the course of their robberies, breaking bones, drawing blood,
and knocking people out. They also shot and killed one of
their victims point blank.
Id.

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22
In Barrett I, this court was not presented with a sufficiency
challenge to the evidence of substantive Hobbs Act robbery charged
in Count Five. The quoted heading thus represents no legal
conclusion on that point. It serves only as a signpost to introduce a
summary of facts pertinent to crimes charged in Counts Five, Six, and
Seven. In that context, the word “attempted” was used—perhaps
inartfully—to preview facts showing that the robbers’ initial
acquisition of the entirety of the cigarette sale proceeds at gunpoint
was thereafter thwarted in part when Dafalla managed to throw
much of the proceeds out the van window, an action for which he
paid with his life. But nowhere in Barrett I did this court hold that the
evidence was insufficient as a matter of law to permit a reasonable
jury to find that, before Dafalla so acted, Barrett and his confederates
had effected a robbery of the cigarette sale proceeds or that, even after
Dafalla acted, they continued the robbery of that part of the proceeds
still in the vehicle. Indeed, Barrett’s attempt to read the Barrett I
heading as suggesting a holding on insufficiency of the evidence is
foreclosed by this court’s decretal language in Barrett I and Barrett II,
which unqualifiedly affirmed his Count Five conviction for
substantive robbery, as well as his Count Six and Seven firearms and
murder convictions for which that robbery served as the violent-
crime predicate. See Barrett I, 903 F.3d at 185; Barrett II, 937 F.3d at
130.
Thus, Barrett cannot rely on Barrett I to demonstrate the
strength of his sufficiency challenge at Strickland step one.

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b. The Taking or Obtaining of Property
Hobbs Act robbery requires proof, inter alia, of an “unlawful
taking or obtaining of personal property.” 18 U.S.C. § 1951(b)(1).
Barrett submits that appellate counsel should have argued that the
evidence was insufficient to prove such a taking or obtaining of the
cigarette sale proceeds alleged in Count Five because that money
remained in Dafalla’s possession and control, as demonstrated by his
throwing it out the van window.11 Such an argument is not obviously
strong because, on the totality of the evidence, a reasonable jury was
not compelled to reach the conclusion urged by Barrett.12
11 The government argues that the evidence proved a taking (and, therefore,
robbery) of the van, as well as the money. Because Count Five alleges, and
the district court charged, a robbery only of the cigarette proceeds, i.e., the
money, we here consider the sufficiency of the evidence to prove a taking
only of that property.
12 Indeed, Barrett’s trial counsel—whose effective representation is not
challenged—appears to have thought there was no point in challenging the
charged robberies’ commission, disputing only the government’s ability to
prove Barrett’s participation therein. Thus, in summation, counsel stated,
“we never disputed and to this day we don’t dispute that there were
robberies here.” Trial Tr. 1830. Dore’s counsel took the same tack: “We do
not dispute that the people that came here are victims, that these robberies
occurred.” Id. at 1806. On this record, appellate counsel can hardly be said
to have overlooked a strong sufficiency challenge on a point that trial
counsel appears to have conceded. Cf. United States v. Rosemond, 958 F.3d
111, 121 (2d Cir. 2020) (rejecting ineffectiveness challenge to trial counsel,
observing, “[o]ne strategic choice a lawyer may make is to concede an
element of the charged crime. Such a decision is sound trial strategy when
the attorney does not concede his client’s guilt.” (internal quotation marks
omitted)).

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In criminal law, the word “taking” means “[t]he act of laying
hold upon an article, with or without removing the same. It implies
a transfer of possession, dominion, or control.” BLACK ’S L AW
D ICTIONARY 1701 (3d ed. 1933); accord B LACK ’S L AW D ICTIONARY 1755
(11th ed. 2019) (defining “taking” as “[t]he act of seizing an article,
with or without removing it, but with an implicit transfer of
possession or control”); see also 3 WAYNE R. L AFAVE , S UBSTANTIVE
C RIMINAL L AW (“L AFAVE ”) § 19.3 (3d ed. 2017) (stating as to
“larceny,” “taking occurs when the offender secures dominion over
the property”).13 Here, evidence showed that Barrett’s confederates
held guns at two victims’ heads when demanding the cigarette sale
proceeds, with the result that one victim promptly turned over
approximately $200 in such proceeds. That, by itself, was sufficient
to permit a jury to find the taking of property required for robbery.
See 18 U.S.C. § 1951(b)(1) (proscribing forcible taking of another’s
“personal property” without regard to amount or value); see also State
v. Thomas, 525 S.W.2d 833, 835 (Mo. Ct. App. 1975) (holding taking $4
at gunpoint sufficient to prove “taking” of property constituting
robbery even though defendant was charged with taking $23 and
claimed that $19 was returned to victim); Tarver v. State, 602 S.E.2d
627, 629 (Ga. 2004) (holding evidence of “taking” sufficient where
defendant took victim’s wallet at gunpoint only to discover it
contained no money).
Still further evidence showed that the robbers then forcibly
ejected these two victims from the van before themselves taking
13 See infra at 26 n.14 (recognizing robbery and larceny to have common
“taking” element).

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25
possession of that vehicle and driving off with the demanded money
and Dafalla inside. Viewed in the light most favorable to the
government, this evidence would have permitted a reasonable jury to
find that, at the moment the armed robbers did so, they had
effectively taken control of the van, all the money contained therein,
and Dafalla. While Barrett might have argued that Dafalla’s ability to
throw money out the van window raised a reasonable doubt as to
whether the robbers obtained control over this property, the jury was
not compelled to reach that conclusion. Evidence that the robbers
promptly shot Dafalla dead when they realized what he had done
would have permitted the jury to conclude that Dafalla was very
much mistaken if he thought that he retained any control over money
in the van after the robbers took possession.
Nor are these conclusions as to a taking foreclosed by the fact
that, after killing Dafalla, the robbers abandoned both the van and the
money remaining therein. A reasonable jury could find that the
robbers had earlier completed a taking of whatever money they
subsequently abandoned. See 2 JENS D AVID O HLIN, W HARTON’S
C RIMINAL L AW (“W HARTON’S CRIMINAL LAW”) § 26:15 (16th ed. 2023
Update) (stating that, where other elements of crime are satisfied, “a
larceny is committed even if immediately thereafter the defendant
abandons the property or returns it to the owner, as long as the
defendant acted, at the time of the taking and asportation, with the
intent to permanently deprive”).
Thus, appellate counsel cannot be said to have overlooked an
obviously strong sufficiency challenge to the government’s proof of a
taking.

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26
c. Specific Intent and Asportation
In urging otherwise, Barrett maintains that a jury could not find
the taking or obtaining of property necessary for robbery in the
absence of evidence showing that the robbers acted with the specific
intent to keep the property permanently and successfully carried the
property to a place of safety. Appellate counsel cannot be faulted for
failing to so argue because Hobbs Act robbery does not require proof
of specific intent or asportation.
Barrett’s urged specific intent and asportation requirements for
robbery derive from common law. See generally 3 L AFAVE § 20.3.14 But
common law is not dispositive here because Hobbs Act robbery is a
statutorily defined, not a common law, crime. See 18 U.S.C. § 1951; see
generally United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34
(1812) (holding there are no federal common law crimes, only federal
statutory crimes).15 To be sure, where “Congress borrows terms of
14 Stating that, at common law, robbery consists of
all six elements of larceny—a (1) trespassory (2) taking and (3)
carrying away of the (4) personal property (5) of another (6)
with intent to steal it—plus two additional elements: (7) that
the property be taken from the person or presence of the other
and (8) that the taking be accomplished by means of force or
putting in fear.
Id.
15 Insofar as the government appears to have accepted Barrett’s equation of
Hobbs Act robbery with common law robbery, see Sept. 11, 2023 Oral Arg.
Tr. 15, this court is not bound by that concession because identifying the
elements of a crime presents a legal issue, see Roberts v. Galen of Va., Inc., 525
U.S. 249, 253 (1999) (instructing that party’s concession “is by no means

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27
art” from the common law, a court can assume it does so “know[ing]
and adopt[ing]” the common law meaning. Morissette v. United States,
342 U.S. 246, 263 (1952). But, as the Supreme Court has explained,
that assumption applies only when “a federal criminal statute uses a
common-law term of established meaning without otherwise defining
it.” United States v. Turley, 352 U.S. 407, 411 (1957) (emphasis added).
The Hobbs Act specifically defines “robbery”:
The term “robbery” means the unlawful taking or
obtaining of personal property from the person or in the
presence of another, against his will, by means of actual
or threatened force, or violence, or fear of injury,
immediate or future, to his person or property, or
property in his custody or possession, or the person or
property of a relative or member of his family or of
anyone in his company at the time of the taking or
obtaining.
18 U.S.C. § 1951(b)(1). This definition makes no mention of any
specific intent, much less a specific intent permanently to take or obtain
property. Nor does it reference asportation or “carrying away” of
property, much less require that stolen property be carried to a place
of safety.
In urging otherwise, Barrett suggests that specific intent and
asportation are implicit in the Hobbs Act’s use of the undefined
words “taking” and “obtaining.” We are not persuaded.
dispositive of a legal issue”); Swift & Co. v. Hocking Valley Ry. Co., 243 U.S.
281, 289 (1917) (“[T]he court cannot be controlled by agreement of counsel
on a subsidiary question of law.”).

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28
At common law, “taking” is an element of robbery distinct from
both intent and carrying away. See supra at 26 n.14. This undermines
Barrett’s claim that “taking” in the Hobbs Act means both “taking”
and “carrying away.” Appellant’s Reply Br. at 3 (internal quotation
marks omitted). Moreover, the Supreme Court, in focusing on the
text of the federal bank robbery statute, 18 U.S.C. § 2113(a),
specifically rejected the assertion that “take” implies a common-law
asportation requirement. Carter v. United States, 530 U.S. 255, 272
(2000). The Court there stated that Congress is “free to outlaw”
robbery “that does not involve asportation,” which “hardly would
have been absurd . . . since the taking-without-asportation scenario is
no imagined hypothetical.” Id. “Indeed, a leading treatise applauds
the deletion of the asportation requirement from the elements of
robbery.” Id. (citing 2 WAYNE R. L AFAVE & AUSTIN W. S COTT ,
S UBSTANTIVE C RIMINAL L AW § 8.11 (1986)). Carter’s reasoning applies
with equal force to Congress’s use of the word “taking” in the Hobbs
Act definition of “robbery.” 18 U.S.C. § 1951(b)(1). It does not require
asportation.
As for specific intent, such a requirement goes to the mens rea
part of a crime. A requirement that property be taken or obtained
goes to the actus reus part of the crime. Thus, even if we were to
assume arguendo that, in the Hobbs Act, Congress employed the
words “taking” and “obtaining” as they are understood at common
law, that does not mean that Congress intended for those actus reus
elements to convey a specific mens rea requirement.
No different conclusion is compelled here by United States v.
Nedley, 255 F.2d 350 (3d Cir. 1958), on which Barrett relies. In that

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29
case, the Third Circuit held that “‘[r]obbery’ under the Hobbs Act[] is
common law robbery” and, thus, requires proof of (1) “forcible taking
and carrying away” and (2) “intent[] to permanently keep the property so
taken.” Id. at 357 (emphasis added). Nedley, of course, is not
controlling authority in this circuit. But more, it is no longer
controlling authority even in the Third Circuit. Last year, in United
States v. Stevens, 70 F.4th 653 (3d Cir. 2023), that court specifically
rejected Nedley’s reliance on the “common law to import two
additional elements” into the Hobbs Act’s “statutory definition of
‘robbery,’” id. at 655. The elements rejected in Stevens are those Barrett
unsuccessfully urges here: (1) “a specific intent to steal and to
permanently deprive the owner or possessor of his property” and (2)
“not merely the taking but also a carrying away of that property.” Id.
(internal quotation marks omitted).16
16 Nedley is also factually distinguishable from this case in that the
defendants there, striking union members, never sought to take physical
possession of the truck that they were found guilty of “robbing.” Instead,
while the truck remained always in its operator’s possession, defendants
employed force to interfere with the vehicle’s movement and thereby
prevent it from delivering goods to the site of a general freight strike. See
United States v. Nedley, 255 F.3d at 352–53. It was in that context that the
Third Circuit held that “mere unlawful interference” with an operator’s
“dominion and control” of his motor vehicle, in the absence of any intent to
take permanent possession of the vehicle or to carry it away, did not equate
to “robbery.” Id. at 351–52, 358. By contrast, here, Barrett and his
confederates sought, and for a time obtained, complete dominion and
control of Abdulla’s minivan and the $10,000 in cigarette sale proceeds
contained therein. The fact that Dafalla was able to throw most of the
money out the window does not alter the fact that the robbers’ intent here
was not simply to interfere with a victim’s dominion and control over his

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30
Such Second Circuit cases as Barrett cites to support a specific
intent or asportation requirement for Hobbs Act robbery are not
persuasive because they involve convictions under statutes that do
not define “robbery.” See, e.g., United States v. Rivera, 521 F.2d 125, 128
(2d Cir. 1975) (considering conviction for robbery of government
property in violation of 18 U.S.C. § 2112); United States v. Reid, 517 F.2d
953, 965 (2d Cir. 1975) (same); see also Carter v. United States, 530 U.S.
at 267 n.5 (distinguishing between statutes in which Congress
“simply punished ‘robbery’ or ‘larceny,’” as in 18 U.S.C. §§ 2112, 2114,
2115, “thereby leaving the definition of these terms to the common
law,” and statutes reflecting “more prevalent legislative practice of
spelling out elements of these crimes”).17
Moreover, even without defining “robbery,” Congress has
demonstrated its ability to include or exclude specific intent and
property but to assume full dominion and control themselves, which for a
brief time they did.
17 Barrett also points to United States v. Walker, 595 F.3d 441 (2d Cir. 2010),
which quoted an Eighth Circuit concurring opinion stating that “the
common law crime of robbery and the various federal statutory offenses of
robbery have substantially the same essential elements,” id. at 444 (quoting
United States v. W.T.T., 800 F.2d 780, 783 (8th Cir. 1986) (Oliver, J.,
concurring in part and dissenting in part)). Walker did so in rejecting
defendant’s argument that a state crime defined by common law elements
is not amenable to the categorical approach for the purpose of evaluating
whether it is a “crime of violence” under U.S.S.G. § 4B1.2(a). Id. at 444–45.
Thus, Walker’s discussion of the “generic definition of robbery,” id. at 446,
has no bearing on the statutory definition of Hobbs Act robbery. Moreover,
Walker was concerned with the force or intimidation requirement of
robbery, which is specifically included in the Hobbs Act definition of
robbery, not asportation or specific intent, which are not. See id. at 446–47.

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31
asportation requirements in robbery statutes where it deems that
warranted. In addressing bank robbery, Congress did not require
specific intent or asportation when bank property is taken “by force
and violence, or by intimidation.” 18 U.S.C. § 2113(a). It is only in the
absence of such force, violence, or intimidation that Congress
required that a defendant “take[] and carr[y] away, with intent to steal
or purloin, any property” belonging to a bank. Id. § 2113(b) (emphasis
added). See Carter v. United States, 530 U.S. at 269 (construing § 2113(a)
to require proof only of “general intent,” i.e., “proof of knowledge
with respect to the actus reus of the crime”).
This reinforces the conclusion we draw from the text of the
Hobbs Act. Because Congress there provided a statutory definition
for robbery that prohibits taking “by means of actual or threatened
force, or violence, or fear of injury,” 18 U.S.C. § 1951(b)(1), but is silent
on any specific intent requirement, the law demands only that the
proscribed conduct was knowing and willful. See generally Elonis v.
United States, 575 U.S. 723, 736 (2015) (holding that when federal
criminal statute is “silent on the required mental state, [courts] read
into the statute only that mens rea which is necessary to separate
wrongful conduct from otherwise innocent conduct” (internal
quotation marks omitted)); United States v. Francis, 164 F.3d 120, 121
(2d Cir. 1999) (stating that “absent any express [statutory] reference
to intent,” courts will “generally presume that proof only of ‘general’
rather than of ‘specific’ intent is required” to support conviction).
There is no question that a knowing taking or obtaining of property
“by means of actual or threatened force, or violence, or fear of injury,”
as statutorily required for Hobbs Act robbery, 18 U.S.C. § 1951(b)(1),
“falls outside the realm of the ‘otherwise innocent.’” Carter v. United

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32
States, 530 U.S. at 270. Thus, general intent is all that Hobbs Act
robbery requires.
While this court has previously stated as much in a summary
order, see United States v. Tobias, 33 F. App’x 547, 549 (2d Cir. 2002)
(stating that Hobbs Act robbery “necessarily implies knowing and
willful conduct”), some of our sister circuits have so held in
precedential opinions. See United States v. García-Ortiz, 904 F.3d 102,
108 (1st Cir. 2018) (holding that Hobbs Act robbery provides for
“implicit mens rea element of general intent—or knowledge—as to
the actus reus of the offense” (internal quotation marks omitted));
United States v. Stevens, 70 F.4th at 660 [3d Cir.] (holding “Hobbs Act
robbery is a general-intent crime”); United States v. Woodruff, 296 F.3d
1041, 1046 (11th Cir. 2002) (“We have held that the only mens rea
required for a Hobbs Act robbery conviction is that the offense be
committed knowingly.” (internal quotation marks omitted)). We join
them today in here holding that to prove a defendant guilty of Hobbs
Act robbery, it is sufficient for the government to show that, in taking
or obtaining property in the manner proscribed by that statute, a
defendant acted knowingly and voluntarily, i.e., not mistakenly,
accidentally, or merely negligently; and that he did so willfully, i.e.,
with a general awareness of the unlawfulness of his acts. See
LEONARD B. S AND ET AL ., MODERN FEDERAL J URY INSTRUCTIONS:
C RIMINAL ¶ 3A.01 (2011) (“Scienter” instruction); id. ¶ 50.01,
Instruction 50-3 (including knowledge requirement in elements of
Hobbs Act robbery). That is what the district court charged here, and
Barrett does not challenge its Hobbs Act robbery instruction or the
sufficiency of the evidence to prove such general intent.

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33
Thus, because Hobbs Act robbery does not require proof of
either specific intent or asportation, Barrett cannot show that
appellate counsel overlooked an obviously strong sufficiency
argument on that ground.
C. Strickland Step Two
Barrett’s urged sufficiency challenge fails to establish
ineffective assistance for a second reason: even if Hobbs Act robbery
required proof of specific intent and asportation—which it does not—
the evidence here was sufficient to permit a reasonable jury to find
both. Thus, Barrett cannot show that he was prejudiced by appellate
counsel’s failure to argue insufficiency.
Specifically, the evidence here was sufficient to permit a
reasonable jury to conclude that, at the moment Barrett’s armed
confederates first drove off in the van with the cigarette sale proceeds
inside, their intent was to take that money permanently. Indeed,
Barrett does not suggest otherwise. The fact that Dafalla’s subsequent
actions frustrated that intent does not mean that the robbers did not
act with that intent upon the initial taking. Similarly, the fact that after
killing Dafalla, the robbers abandoned the van with what money was
then remaining inside, did not preclude a jury finding that, upon
taking, they possessed the urged specific intent. As a leading criminal
law treatise states, “larceny is committed even if immediately
thereafter the defendant abandons the property or returns it to the
owner, as long as the defendant acted, at the time of the taking and
asportation, with the intent to permanently deprive.” WHARTON’S
C RIMINAL L AW § 26:15.

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34
As for asportation, Barrett misstates that requirement to
demand that property be carried away to a place of safety. In fact,
asportation requires only “some slight movement away” of the stolen
property. 3 L AFAVE § 19.3; see W HARTON’S C RIMINAL L AW § 26:15
(“[A]ny carrying away movement, however slight, is sufficient.”);
United States v. Barlow, 470 F.2d 1245, 1250 (D.C. Cir. 1972) (stating
that asportation is satisfied by defendant removing taken property
“slightest distance” from original location); Smith v. United States, 291
F.2d 220, 221 (9th Cir. 1961) (holding that asportation element of 18
U.S.C. § 2113(b) was satisfied by defendant moving bag of money
only few inches from bank teller’s window before arrest). Here, a
reasonable jury could find such “slight movement” proved by
evidence that Barrett’s confederates, after forcibly ejecting two
victims from the minivan, drove off in that van with the cigarette sale
proceeds inside.18
18 United States v. Rivera, 521 F.2d 125, cited by Barrett, is not to the contrary.
Not only does that case involve a different robbery statute than the Hobbs
Act, see supra at 30, but its facts are not analogous. In Rivera, a would-be
robber was pretending to be a drug dealer when he drove a then-
unsuspecting undercover agent’s car (containing intended buy money) to
the scene of the purported drug sale. The driver then left the vehicle, and,
upon returning with a confederate, pointed a gun at the agent and
threatened his life before back-up agents rescued him. See id. at 127. It was
in those circumstances—i.e., where the taking was attempted only after the
car containing the money had been driven to the purported purchase site
and there was no movement of the vehicle or money as a result of the
intervention of other officers—that this court held that the evidence of
carrying away was insufficient because “the money never left the trunk.”
Id. at 128. By contrast, here the evidence showed that the robbers
demanded and took possession of their victims’ money before they drove off
in the van containing that money.

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35
In urging otherwise, Barrett cites cases involving crimes
allegedly committed in the course of robberies (or other crimes) in
which courts rejected defense arguments that the predicate crimes
had concluded before the charged crimes occurred. See, e.g., United
States v. Reid, 517 F.2d at 965 (rejecting challenge to § 924(c) conviction
for using firearm in course of § 2112 robbery, holding that although
firearm used had been taken from agent, charged robbery required
“both a taking and a carrying away of the property” and, at time of
shooting, officer “had not given up on the prospect of arresting the
defendants and retrieving his revolver” (internal quotation marks
omitted)). Barrett argues that if a robbery does not conclude until
stolen property is carried away to a place of safety, then before such
asportation has come to an end, a defendant is guilty only of
attempted robbery. That is incorrect. “Robbery is first committed
when the defendant takes possession of and moves . . . the victim’s
property, but it continues as long as he continues to carry it.” 2
LAFAVE § 14.5(f)(1); see People v. Cooper, 811 P.2d 742, 747–48 (Cal.
1991) (in bank) (explaining that, for purposes of “establishing guilt,
[robbery’s] asportation requirement is initially satisfied by evidence
of slight movement,” but crime “continues . . . as long as the loot is
being carried away to a place of temporary safety” (emphasis
removed)).
Thus, a sufficiency challenge to evidence of specific intent and
asportation would not have succeeded, both because Hobbs Act
robbery does not require such proof and because, in any event, the
evidence here was sufficient to permit a reasonable jury to find such
intent and asportation. This necessarily means that Barrett cannot

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36
demonstrate the prejudice required at the second step of Strickland
analysis. See Harrington v. United States, 689 F.3d at 130.
Because Barrett thus fails to carry his burden at either step of
Strickland analysis, we reject as meritless his ineffective assistance of
counsel challenge to his conviction on Counts Five, Six, and Seven.
II. Substantive Hobbs Act Robbery Is a Crime of Violence
In Barrett II, this court stated that substantive Hobbs Act
robbery can serve as a predicate crime of violence under 18 U.S.C.
§ 924(c). 937 F.3d at 128 (citing United States v. Hill, 890 F.3d 51, 53, 60
(2d Cir. 2018), cert. denied, 139 S. Ct. 844 (2019)). In a supplemental
brief on this appeal, Barrett argues that this conclusion cannot stand
after United States v. Taylor, 596 U.S. 845, and, thus, he seeks vacatur
of his conviction on Counts Four, Six, and Seven. We are not
persuaded.
In Taylor, the Supreme Court held that attempted Hobbs Act
robbery does not qualify as a categorical crime of violence, see 596 U.S.
at 851, but the Court there said nothing to suggest that the same
conclusion applies to substantive Hobbs Act robbery. See also United
States v. Davis, 139 S. Ct. at 2336 (holding Hobbs Act conspiracy not a
categorical crime of violence because § 924(c)(3)(B) residual clause is
unconstitutionally vague, without suggesting that same conclusion
applied to substantive Hobbs Act robbery under § 924(c)(3)(A)).
Barrett nevertheless posits two hypotheticals in an effort to show that
substantive Hobbs Act robbery, like attempted Hobbs Act robbery,
can be committed without “the use, attempted use, or threatened use
of physical force against the person or property of another” that
defines a crime of violence under § 924(c)(3)(A). In the first, he

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hypothesizes a defendant convicted of Hobbs Act robbery for taking
or obtaining property while “threatening nonphysical injury to
intangible property”; in the second he hypothesizes a defendant
convicted of Hobbs Act robbery for taking or obtaining property by
“threatening harm to [him]self.” Appellant’s Supp. Br. at 5, 10
(capitalization altered).19
After Barrett filed his supplemental brief, this court published
its decision in United States v. McCoy, 58 F.4th 72 (2d Cir. 2023). There,
too, the defendants argued that Taylor undermined precedent
recognizing substantive Hobbs Act robbery as a categorical crime of
violence. See, e.g., United States v. Hill, 890 F.3d at 56–60. McCoy,
however, roundly rejected that argument, holding that “nothing in
Taylor’s language or reasoning . . . undermines this [c]ourt’s settled
understanding that completed Hobbs Act robberies are categorically
crimes of violence pursuant to section 924(c)(3)(A).” 58 F.4th at 74.
The ten of our sister circuits to have considered similar post-Taylor
challenges to the identification of substantive Hobbs Act robbery as a
§ 924(c)(3)(A) crime of violence have reached the same conclusion. See
Diaz-Rodriguez v. United States, No. 22-1109, 2023 WL 5355224, at *1
(1st Cir. Aug. 14, 2023); United States v. Stoney, 62 F.4th 108, 113–14 (3d
Cir. 2023); United States v. Ivey, 60 F.4th 99, 116–17 (4th Cir. 2023);
19 As the government observes, these scenarios are just hypothetical. Barrett
points to no case in which a person has ever been charged with, much less
convicted of, Hobbs Act robbery on similar facts. The government
submits—not without some force—that these scenarios would more likely
be prosecuted as Hobbs Act extortion rather than Hobbs Act robbery. We
do not pursue that point because we conclude, for reasons that we will now
discuss, that Barrett’s argument is defeated by this court’s recent decision
in United States v. McCoy, 58 F.4th 72 (2d Cir. 2023).

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United States v. Hill, 63 F.4th 335, 363 (5th Cir. 2023); United States v.
Honeysucker, No. 21-2614, 2023 WL 142265, at *3 n.4 (6th Cir. Jan. 10,
2023); United States v. Worthen, 60 F.4th 1066, 1068–71 (7th Cir. 2023);
United States v. Moore, No. 22-1899, 2022 WL 4361998, at *1 (8th Cir.
Sept. 21, 2022); United States v. Eckford, 77 F.4th 1228, 1232–36 (9th Cir.
2023); United States v. Baker, 49 F.4th 1348, 1360 (10th Cir. 2022); United
States v. Wiley, 78 F.4th 1355, 1364–65 (11th Cir. 2023).
It is, of course, “a longstanding rule that a panel of our [c]ourt
is bound by the decisions of prior panels until such times as they are
overruled either by an en banc panel of our [c]ourt or by the Supreme
Court.” United States v. Peguero, 34 F.4th 143, 158 (2d Cir. 2022)
(internal quotation marks omitted). Thus, we are bound by McCoy to
reject Barrett’s argument that substantive Hobbs Act robbery is not a
categorical crime of violence.20
In an effort to avoid this conclusion, Barrett argues that McCoy
should not control here because the court there never considered the
hypothetical Hobbs Act robberies he posits and, thus, “‘is not a
binding precedent on th[at] point.’” Appellant’s Supp. Reply Br. at 3
(quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38
(1952)). He is mistaken.
20 As is frequently the case when we review claims that convictions are not
for crimes of violence, there is no question that the actual conduct of Barrett
and his confederates in committing the robberies underlying Counts Four,
Six, and Seven was violent. See Barrett I, 903 F.3d at 170–71 (describing force
actually used in those robberies). But the categorical approach does not
look to actual conduct. Its focus is on the minimum conduct required to
satisfy the elements of the charged crime. See United States v. Scott, 990 F.3d
94, 104 (2d Cir. 2021) (en banc).

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39
L.A. Tucker Truck Lines and other cases cited by Barrett reflect
only the principle that precedent is not binding when it “cannot fairly
be read as resolving, or even considering, the question presented in
[the instant] case.” Direct Mktg. Ass’n v. Brohl, 575 U.S. 1, 12 n.1 (2015);
see Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 113 (2d
Cir. 1988) (noting earlier panel’s “sub silentio” resolution of issue that
“never was briefed, argued, or decided” is “not binding precedent”
(internal quotation marks omitted)); Pellegrino v. N.Y. State United
Tchrs., 843 F. App’x 409, 411 (2d Cir. 2021) (observing L.A. Tucker
Truck Lines expresses “only the commonplace principle that
precedent is not binding when it is not on point or does not resolve
the question at issue in the instant case” (internal quotation marks and
citations omitted)). Barrett has not cited any authority that permits
us to disregard precedent that squarely rules on an issue simply
because an earlier panel may not have considered additional
arguments now proffered by a party. To the contrary, we are bound
by prior panel rulings, even where the panel did not consider the
instant party’s “specific argument,” so long as there is “no way to
reconcile [the prior] holding . . . with [the instant party’s] proposed
holding.” United States v. Tabb, 949 F.3d 81, 87 (2d Cir. 2020).
That is the case here. Barrett urges this panel to hold that
substantive Hobbs Act robbery is not a crime of violence. Such a
ruling cannot coexist with McCoy’s holding that it is. Accordingly,
because this panel cannot overrule McCoy, we must reject Barrett’s
argument that substantive Hobbs Act robbery is not a categorical
crime of violence. See United States v. Baker, 49 F.4th at 1358 [10th Cir.]
(rejecting attempt to circumvent prior panel’s holding that Hobbs Act
robbery is crime of violence based on new arguments not considered

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40
by prior panel because “that holding is the law of this Circuit
regardless of what might have happened had other arguments been made to
the panel that decided the issue first” (emphasis in original) (internal
quotation marks omitted)).
In sum, because Barrett’s argument that substantive Hobbs Act
robbery is not a crime of violence is foreclosed by McCoy, we do not
address it further. Instead, following McCoy, we affirm Barrett’s
conviction on Counts Four, Six, and Seven because the Hobbs Act
robbery predicates for those counts are categorically crimes of
violence.
III. Sentence Challenge
A. Procedural Reasonableness
1. Application of Guideline § 2A1.1
Barrett argues that his 50-year sentence is procedurally
unreasonable because the district court erred in applying Sentencing
Guideline § 2A1.1 (First Degree Murder) rather than § 2B3.1
(Robbery) in calculating his recommended Sentencing Guidelines
range. A district court commits procedural error if it improperly
calculates the Sentencing Guidelines range. See United States v. Cavera,
550 F.3d 180, 190 (2d Cir. 2008) (en banc); accord United States v. Clarke,
979 F.3d 82, 99 (2d Cir. 2020). We “review[] a district court’s
application of the Guidelines de novo,” although we review its “factual
determinations underlying a . . . Guidelines calculation . . . for clear
error.” United States v. Cramer, 777 F.3d 597, 601 (2d Cir. 2015).
On de novo review, we conclude that the district court correctly
applied § 2A1.1 in calculating Barrett’s recommended Guidelines

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range. Guideline § 1B1.2(a) instructs a court to identify the offense
guideline section “applicable to the offense of conviction” by
reference to “the Statutory Index (Appendix A) to determine the
Chapter Two offense guideline, referenced in the Statutory Index for
the offense of conviction.” U.S.S.G. § 1B1.2(a) (2021).21 As to one of
the statutes pertinent to Barrett’s crimes of conviction, i.e., 18 U.S.C.
§ 924(j)(1) (Count Seven), the Statutory Index references either
§ 2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder) as
the applicable guideline. See id. app. A. Barrett does not argue that
the district court should have applied § 2A1.2. Thus, we need
consider only the propriety of its application of § 2A1.1.
Application Note 1 to § 1B1.2 states that, where the Statutory
Index specifies more than one offense guideline for a particular
statute, “the court will determine which of the referenced guideline
sections is most appropriate for the offense conduct charged in the
count of which the defendant was convicted.” Id. § 1B1.2 cmt. n.1.
Section 2A1.1 applies “when death results from the commission of
certain felonies.” Id. § 2A1.1 cmt. n.1. Because Barrett’s § 924(j)
conviction was based on a theory of felony murder, the district court
correctly applied § 2A1.1.
In urging otherwise, Barrett cites United States v. Irving, 554 F.3d
64 (2d Cir. 2009), to argue that § 1B1.2(a) only “ordinarily” requires a
district court to apply the guideline section referenced in the Statutory
21 We apply the 2021 version of the Guidelines in effect at the time of
Barrett’s resentencing, which is identical in all relevant respects to the 2011
version in effect at the time of his original sentencing. See United States v.
Morris, 350 F.3d 32, 35 n.1 (2d Cir. 2003).

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Index, id. at 72. Barrett’s reliance on Irving is misplaced. First, in that
case, this court interpreted the 1998 Guidelines, which did not include
the applicable Guidelines’ unequivocal language instructing courts to
refer to the Statutory Index.22 Accordingly, whatever support Irving
provides for not strictly adhering to the Statutory Index when
applying the 1998 Guidelines—and Barrett cites no case so applying
Irving—its rationale does not extend to the later Guidelines applicable
here.
Further, because the applicable Guidelines specifically
instructed the district court to use the Statutory Index to identify the
relevant offense guideline, Barrett’s argument that his “real conduct”
takes this case outside § 2A1.1’s “heartland” is irrelevant to the correct
calculation of his Guidelines range. Appellant’s Br. at 33, 36 (internal
quotation marks omitted). Rather, as the authority on which Barrett
relies reflects, such an argument would apply, if at all, after the
Guidelines calculation to urge either a departure or variance from the
recommended sentencing range. See United States v. Teeter, 257 F.3d
14, 29–30 (1st Cir. 2001) (considering heartland argument not as
challenge to § 2A1.1 cross-reference but as challenge to sentencing
court’s refusal to grant downward departure); see also United States v.
22 Compare U.S.S.G. § 1B1.2(a) (2021) (“Refer to the Statutory Index
(Appendix A) to determine the Chapter Two offense guideline, referenced
in the Statutory Index for the offense of conviction.”), and id. § 1B1.2 cmt.
n.1 (“The court is to use the Chapter Two guideline section referenced in
the Statutory Index (Appendix A) for the offense of conviction.”), with
U.S.S.G. § 1B1.2 cmt n.1 (1998) (“As a general rule, the court is to use the
guideline section from Chapter Two most applicable to the offense of
conviction. The Statutory Index (Appendix A) provides a listing to assist in
this determination.” (emphasis added)).

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43
Thorn, 446 F.3d 378, 391 (2d Cir. 2006) (noting “imposition of a
sentence outside the applicable Guideline range . . . is appropriate
where ‘certain aspects of the case [are] found unusual enough for it to
fall outside the heartland of cases’ within that Guideline” (quoting
Koon v. United States, 518 U.S. 81, 98 (1996))).
In any event, Barrett’s heartland argument is mistaken. He
submits that § 2A1.1 generally applies to “those who knowingly and
intentionally participate in an act of homicide.” Appellant’s Br. at 33
(quoting United States v. Teeter, 257 F.3d at 30). But § 2A1.1’s
application notes state that it applies “when death results from the
commission of certain felonies,” i.e., to felony murders. U.S.S.G.
§ 2A1.1 cmt. n.1. Thus, as this court has recognized, “the first-degree
murder guideline is properly applied . . . even if a defendant did not
know or intend that death would result” in the course of a felony
crime, and “is equally applicable to convictions for conspiracy and,
on a Pinkerton theory, for substantive crimes.” United States v.
Salameh, 261 F.3d 271, 280 (2d Cir. 2001); see U.S.S.G. § 2X2.1 (stating
that offense level for aiding and abetting “is the same level as that for
the underlying offense”).23
23 Application Note 2(B) to § 2A1.1 states that “[i]f the defendant did not
cause the death intentionally or knowingly, a downward departure may be
warranted[,] . . . based upon the defendant’s state of mind (e.g., recklessness
or negligence), the degree of risk inherent in the conduct, and the nature of
the underlying offense conduct.” The district court declined to depart
downward on that ground given Barrett’s participation in a “reprehensible
robbery” and his own violent conduct during other robberies, including a
robbery within hours of that in which Dafalla was murdered. Resent’g Tr.
24–30.

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44
Barrett is right, of course, that the Guidelines are not
mandatory. See United States v. Booker, 543 U.S. 220, 245 (2005). But a
Guidelines calculation is a required step in identifying “a sentence
sufficient, but not greater than necessary” to comply with purposes
statutorily identified by Congress. 18 U.S.C. § 3553(a); id.
§ 3553(a)(4)(A) (stating that sentencing court “shall consider . . .
sentencing range” set forth in Guidelines); see United States v. Cavera,
550 F.3d at 190. Because the district court here correctly followed the
Guidelines’ clear language in calculating Barrett’s Guidelines range,
this part of Barrett’s procedural challenge is meritless.
2. Mandatory Consecutive § 924(j) Sentence
Barrett argues that the district court committed procedural
error when it concluded on remand, as it had at Barrett’s original
sentencing, that § 924(j)24 incorporated the minimum and consecutive
sentencing mandates of § 924(c)(1).25 Barrett is correct in light of the
24 See supra at 8–9 n.4.
25 With respect to mandatory minimums:
• § 924(c)(1)(A)(i)-(iii) mandates a sentence of “not less than 5 years”
if, during “any crime of violence or drug trafficking crime,” a firearm
is “use[d] or carrie[d]”; “not less than 7 years” if during such a crime
a firearm is “brandished”; and “not less than 10 years” if during such
a crime a firearm is “discharged.”
• § 924(c)(1)(B)(i)-(ii) mandates a sentence of “not less than 10 years”
if the firearm used in a § 924(c) crime is “a short-barreled rifle, short-
barreled shotgun, or semiautomatic assault weapon”; and “not less
than 30 years” if the firearm is a “machinegun,” “destructive
device,” or is “equipped with a firearm silencer or firearm muffler.”

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45
Supreme Court’s decision last term in Lora v. United States, construing
§ 924(j) to reference § 924(c) “only with respect to offense elements,
not penalties.” 599 U.S. at 458. Thus, the Court held that § 924(c)’s
minimum and consecutive sentence mandates do not apply in
determining a § 924(j) sentence. See id. at 459 (stating that court “need
not consult subsection (c)’s sentences in order to sentence a subsection
(j) defendant”); see also id. at 455 (holding that § 924(j) sentence “can
run either concurrently with or consecutively to another sentence”);
id. at 462 (observing that § 924(j) “eschews mandatory penalties in
favor of sentencing flexibility”).
The government argues that Barrett waived or forfeited this
argument and, in any event, any error here was harmless. We do not
here identify waiver or forfeiture, and while the government’s
• § 924(c)(1)(C)(i)-(ii) mandates a sentence of “not less than 25 years”
if a § 924(c) crime is committed “after a prior conviction under this
subsection has become final”; and a “life” sentence if the firearm
used in such a successive crime is a “machinegun,” “destructive
device,” or “is equipped with a firearm silencer or firearm muffler.”
• § 924(c)(1)(D)(i) expressly prohibits a court from “plac[ing] on
probation any person convicted of a violation of this subsection.”
With respect to consecutive sentences:
• § 924(c)(1)(A) states in pertinent part that its prescribed mandatory
minimum sentences “shall” be imposed “in addition to the
punishment provided for [the predicate] crime of violence or drug
trafficking crime” supporting the § 924(c) conviction.
• § 924(c)(1)(D)(ii) states that no sentence imposed “under this
subsection shall run concurrently with any other term of
imprisonment imposed on the person, including any term of
imprisonment imposed for the crime of violence or drug trafficking
crime during which the firearm was used, carried, or possessed.”

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46
harmlessness argument is not without force, some record ambiguity
prevents us from reaching that conclusion with sufficient certainty as
to avoid resentencing.
a. Standard of Review
Controlling precedent states that, “[w]here we identify
procedural error in a sentence, but the record indicates clearly that the
district court would have imposed the same sentence in any event,
the error may be deemed harmless, avoiding the need to vacate the
sentence and to remand the case for resentencing.” United States v.
Jass, 569 F.3d 47, 68 (2d Cir. 2009) (internal quotation marks omitted).
This rule places the burden on the government to make the requisite
clear showing. See United States v. Mason, 692 F.3d 178, 184 (2d Cir.
2012). If, however, the defendant forfeited a procedural challenge by
failing to preserve it, it becomes his burden to demonstrate “plain
error” by showing “a reasonable probability that, but for the error, the
outcome of the proceeding would have been different.” Molina-
Martinez v. United States, 578 U.S. 189, 194 (2016) (internal quotation
marks omitted); see United States v. Verkhoglyad, 516 F.3d 122, 128 (2d
Cir. 2008). Finally, if a party fails to preserve a challenge to procedural
error “as a tactical matter,” then we will identify “true waiver . . .
negat[ing] even plain error review.” United States v. Quinones, 511
F.3d 289, 321 (2d Cir. 2007) (internal quotation marks omitted).
Generally, for us to identify true waiver, a defendant must “not only
[have] failed to object to what [he] now describe[s] as error,” but also
have “actively solicited” the error “in order to procure a perceived
sentencing benefit.” Id.

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In arguing that Barrett waived any objection to the application
of § 924(c)’s mandates to a § 924(j) sentence, the government points to
his brief on resentencing, which stated that his Count Seven § 924(j)
crime “has the same minimums as § 924(c).” S.D.N.Y. Dkt. No. 692 at
6. We are not persuaded. While waiver may be identified where “a
party attempts to reassert an argument that it previously raised and
abandoned below,” United States v. Spruill, 808 F.3d 585, 597 (2d Cir.
2015) (internal quotation marks omitted), the record in this case is
more reflective of acknowledgement that an argument had been
rejected than of abandonment.
To explain, both at sentencing in the district court and on direct
appeal to this court, Barrett argued that § 924(c)’s minimum and
consecutive sentence mandates did not apply to his Count Seven
§ 924(j) crime. Both courts rejected the argument on the merits.
Indeed, at the government’s request, this court confirmed its initial
summary rejection, see United States v. Barrett, 750 F. App’x at 23, in
the published opinion leading to resentencing, see Barrett II, 937 F.3d
at 129 n.2. As this record demonstrates, Barrett had thus made his
opposition to a mandatory minimum or consecutive § 924(j) sentence
clear and, having lost the point in this court, could not—at least not
before Lora—have asked the district court on remand to reconsider
this argument. See United States v. Williams, 475 F.3d 468, 475 (2d Cir.
2007) (stating that law-of-the-case doctrine generally bars defendant

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48
from renewing on remand to the district court challenges adjudicated
by appeals court).26
Viewed in this context, Barrett’s statement that § 924(j) “has the
same minimums as § 924(c),” S.D.N.Y. Dkt. No. 692 at 6, did not
manifest waiver or even forfeiture of his argument that the district
court erroneously applied § 924(c)’s sentencing mandates in imposing
his § 924(j) sentence on Count Seven.
Accordingly, and now with the benefit of Lora, we review the
district court’s mistaken application of § 924(c)’s mandates to Barrett’s
§ 924(j) sentence for harmless error.
b. Record Ambiguity Precludes Finding the
Lora Error Harmless
The government argues that Barrett’s sentence is not infected
by Lora error because, even if the district court was mistaken in
looking to § 924(c)’s mandates in sentencing Barrett on the Count
Seven § 924(j) crime, the court “imposed the same sentence on Count
Six, which still carries the same mandatory consecutive sentence.”
Gov’t Sec. Supp. Br. at 17. We think this argues harmlessness rather
than lack of error. No matter. The record does not demonstrate that
the district court “imposed the same sentence on Count Six” as on
Count Seven. The Amended Judgment indicates that Barrett was
convicted on both Counts Six and Seven, but it shows that a term of
26 Because Barrett objected to a consecutive § 924(j) sentence in the district
court and in this court, this case is not akin to those in which a defendant
fails to raise any objection to an error because that objection is foreclosed by
a “uniform wall of precedent.” Greer v. United States, 593 U.S. 503, 511–12
(2021) (holding plain-error review still applies in such cases).

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imprisonment was imposed only on Count Seven. No prison sentence
of any length is recorded on Count Six. Thus, when, in imposing
sentence, the district court stated that Counts Six and Seven “kind of
merged into one sentence,” Resent’g Tr. 10, it appears to have effected
that merger through a single incarceratory sentence imposed on
Count Seven. Moreover, even if the district court had imposed a
separate prison sentence on Count Six, it would not necessarily have
imposed the same 25-year sentence as on Count Seven. As the district
court indicated, after the First Step Act, it understood the mandatory
minimum sentence for Barrett’s § 924(c) crimes to be five, not 25,
years. In sum, because the district court did not impose the same
consecutive 25-year sentence on Count Six as it imposed on Count
Seven, the government cannot urge harmlessness on that ground.
There is more force to the government’s argument that, even
without misunderstanding § 924(c)’s application to a § 924(j) sentence,
the district court would have imposed the same consecutive 25-year
prison sentence on Count Seven and the same total sentence of 50
years. This finds support in the fact that, even after the district court
decided that the First Step Act reduced Barrett’s § 924(c) mandatory
minimum sentence to five years, see supra at 11–12 & n.7, the court
imposed a 25-year sentence on Count Seven—five times that
minimum. Moreover, its explanation for this lengthy sentence makes
clear that it was not anchored to § 924(c)’s mandates but, rather, it was
the shortest term of incarceration warranted adequately to address
Dafalla’s murder: “[T]o impose a sentence of less than 25 years on
Count Seven would be, I think, to disrespect the victim, Mr. Dafalla,
and his family.” Resent’g Tr. 52.

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50
Other statements demonstrate that the district court imposed
that 25-year sentence on Count Seven consecutively not just to satisfy
a (mis)perceived statutory mandate, but to achieve the total 50-year
sentence it thought necessary to address the duration and brutality of
Barrett’s crimes:
[T]his was a serious crime. That’s the reason why I’m
imposing a sentence of 50 years, which is . . . a long
sentence, because these crimes were as brutal as any I’ve
ever seen. They persisted over such a long period of time
after you had had prior convictions and continued even
after the murder of a man during the course of a robbery.
That does require punishment . . . . That’s what drives
this sentence.
Id. at 54. Indeed, the court stated that this 50-year total was required
“not as a matter of the sentencing guidelines, not as a matter of
mandatory minimums, but just as a matter of simple justice.” Id. at
51. Thus, while the 50-year total sentence represented a 40-year
reduction in Barrett’s original sentence based on changes in the law
and Barrett’s positive prison record, the district court explained that
it was the crimes themselves—not any sentencing mandates—that
precluded an even lower sentence:
There’s just a limit . . . to how relevant [these mitigating
factors] can be in a case like this . . . [where] crimes over
such a long period of time involved such brutal violence,
violence perpetrated or threatened against a man in front
of his children in his home, violence on the street,
violence that resulted in a man getting killed.
Id. at 50.

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Were these the district court’s only statements pertinent to the
challenged sentence, we might well conclude that the record clearly
demonstrates that, even with the benefit of Lora, it would have
imposed a 25-year consecutive sentence on Count Seven and a total
50-year sentence. See United States v. Jass, 569 F.3d at 68. But two
ambiguous remarks by the district court give rise to some uncertainty
about that conclusion. See United States v. Feldman, 647 F.3d 450, 459
(2d Cir. 2011) (stating that appellate court “cannot assume, without
unambiguous indication to the contrary, that the sentence would be
the same” even absent identified error).
First, at Barrett’s initial sentencing, after construing § 924(j) to
incorporate § 924(c)’s minimum and consecutive sentence mandates,
the district court observed that if its decision on that point were to be
reversed by this court or the Supreme Court, “then we’ll be back here
for a resentencing.” Sent’g Tr. 19. Then, at resentencing, the district
court urged Barrett to maintain his record of good behavior in prison
because “sometimes the law changes,” in which case Barrett might
“even get another look [at his sentence] down the road.” Resent’g Tr.
53. Because the district court’s ambiguous statements admit at least
the possibility that it was open to imposing a lesser sentence if it was
mistaken in its application of § 924(c)’s mandates to Count Seven’s
§ 924(j) crime—as Lora now tells us it was—on harmless error review,
we cannot conclude that the record “indicates clearly” that the district
court would have imposed the same consecutive 25-year sentence on
Count Seven in any event. United States v. Jass, 569 F.3d at 68. Thus,
we are obliged to vacate and remand for resentencing in light of Lora.

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c. Double Jeopardy Does Not Bar Separate
Sentences on Counts Six and Seven
Anticipating such a remand, Barrett argues that double
jeopardy bars the district court from resentencing him on both Counts
Six and Seven because the § 924(c) firearms crime charged in Count
Six is a lesser-included offense of the § 924(j) murder crime charged
in Count Seven. Thus, Barrett submits that, on remand, the district
court must (1) resentence him on Count Seven consistent with Lora,
i.e., without applying § 924(c)’s mandates to that § 924(j) count; and
(2) vacate his conviction on Count Six.27 Barrett is correct as to the
first point but mistaken as to the second. As construed in Lora,
§ 924(c)(1) and § 924(j) crimes are separate offenses for which
Congress has clearly authorized cumulative punishments. This
conclusion obtains even when, as here, the defendant’s § 924(c)
firearms predicate count is a lesser-included offense of his § 924(j)
murder count. Accordingly, on remand, the district court should
sentence Barrett on each of these two counts of conviction consistent
27 Barrett had earlier opposed merger of Counts Six and Seven, arguing on
his initial appeal that because “§ 924(j) establishes a separate offense,” it
was “not subject to § 924(c)’s enhancements.” United States v. Barrett, 750
F. App’x at 23. Meanwhile, the government’s original position in this court
and before the Supreme Court in Lora was that “‘Section 924(j) amounts to
the “same offense” as Section 924(c) for purposes of the Double Jeopardy
Clause,’” such that “‘a defendant may be punished for either a Section 924(c)
offense or a Section 924(j) offense, but not both.’” Lora v. United States, 599
U.S. at 461 (quoting Br. for United States at 22–26) (emphasis in original).
After Lora, the parties switched positions.

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with the distinct sentencing regimens created by Congress in § 924(c)
and § 924(j).28
In explaining that conclusion, we begin with the Double
Jeopardy Clause, which guarantees that “[n]o person shall . . . be
subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. C ONST . amend. V. This command shields a defendant not only
from successive prosecution for the same offense, but also from
“multiple punishments for the same offense.” United States v. Aquart,
92 F.4th 77, 100 (2d Cir. 2024) (internal quotation marks omitted).
As this court recently observed, whether one crime is a lesser-
included offense of another is “not necessarily the determinative
inquiry . . . in considering whether the same or overlapping conduct
may be prosecuted or punished under two different statutes”
consistent with the Double Jeopardy Clause. Id. at 102. Rather, “[a]
court must first ‘determine whether the legislature . . . intended that
each violation be a separate offense.’” Id. at 103 (quoting Garrett v.
28 Our holding pertains only to related § 924(c)(1) and § 924(j) crimes. In
§ 924(c)(5), Congress separately prescribed both a mandatory minimum
sentence of “not less than 15 years” for the use, carry, or possession of armor
piercing ammunition in the commission of a crime of violence or drug
trafficking crime, “and” a flexible sentence up to life imprisonment or even
death if the use of such ammunition caused death, depending on the type
of homicide involved. 18 U.S.C. § 924(c)(5); see Pub. L. No. 109-92, § 6, 119
Stat. 2095, 2101 (2005) (adding § 924(c)(5) to § 924(c) as part of legislation
regulating manufacture, importation, sale, and use of armor piercing
ammunition). Because § 924(c)(5) is not at issue here, we need not consider
whether double jeopardy would bar a cumulative sentence were a
defendant convicted under both that provision and § 924(j). We note only
that the Supreme Court has recognized the two provisions as having been
“cast from . . . different mold[s].” Lora v. United States, 599 U.S. at 461.

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United States, 471 U.S. 773, 778 (1985)). In short, the “‘touchstone’ of
multiple punishments analysis ‘is whether Congress intended to
authorize separate punishments for the offensive conduct under
separate statutes.’” Id. (quoting United States v. Chacko, 169 F.3d 140,
146 (2d Cir. 1999)).
In determining Congress’s intent, the elements test identified in
Blockburger v. United States, 284 U.S. 299 (1932), is often helpful:
“[W]here the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not,” id. at 304; accord
United States v. Dixon, 509 U.S. 688, 696 (1993) (reaffirming Blockburger
test). Where two offenses each require proof of a distinct fact, a court
can generally conclude that Congress intended to create different
offenses. See Albernaz v. United States, 450 U.S. 333, 339 (1981) (holding
statutory provisions that “clearly satisfy the rule announced in
Blockburger . . . proscribe separate statutory offenses” given absence
of contrary legislative intent). That is not the case here. Although
Barrett’s § 924(j) crime required proof of a fact, i.e., causing death, not
required by his predicate § 924(c) firearms crime, his § 924(c) crime
required proof of no fact not also required by his § 924(j) crime. That
Barrett’s § 924(c) crime is thus a lesser-included offense of his § 924(j)
crime, however, does not end our double jeopardy inquiry. As the
Supreme Court has stated, the Blockburger test is “not controlling
when the legislative intent is clear from the face of the statute or the
legislative history.” Garrett v. United States, 471 U.S. at 779 (citing
Missouri v. Hunter, 459 U.S. 359, 368 (1983)). Where Congress
“specifically authorizes cumulative punishment under two statutes,

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regardless of whether those two statutes proscribe the ‘same’ conduct
under Blockburger, a court’s task of statutory construction is at an
end.” Missouri v. Hunter, 459 U.S. at 368–69; accord United States v.
Aquart, 92 F.4th at 103–06 (concluding that Congress intended
cumulative punishments under 21 U.S.C. § 841(b)(1)(A) (drug
trafficking in specified amounts) and 21 U.S.C. § 848(e)(1)(A) (murder
while engaged in § 841(b)(1)(A) crime) notwithstanding Blockburger).
To determine if Congress intended to authorize cumulative
punishments, a court first looks to statutory text. See Garrett v. United
States, 471 U.S. at 779–80 (starting with statutory language in
determining whether Congress authorized cumulative punishments);
see generally Oklahoma v. Castro-Huerta, 597 U.S. 629, 642–43 (2022)
(stating that “Congress expresses its intentions through statutory
text,” and that “Court may not replace the actual text with speculation
as to Congress’ intent” (internal quotation marks omitted)). In the
text of § 924(c)(1), Congress authorized—indeed, mandated—that
sentences imposed under that provision (1) cannot be less than
prescribed minimums, see 18 U.S.C. § 924(c)(1)(A), and (2) must run
consecutively to any other sentences imposed on a defendant, see id.
§ 924(c)(1)(D)(ii).
As to the first point, the text of § 924(c)(1) mandates minimum
prison terms—ranging from five years to life—for each of seven ways
that the statute can be violated. See supra at 44–45 n.25. The
minimums vary depending on how the firearm is used, the type of
firearm used, and prior § 924(c)(1) convictions, but they apply
without regard to whether the proscribed use causes actual harm.
Thus, on its face, § 924(c)(1) makes plain Congress’s intent for every

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defendant convicted under that statute of a proscribed firearms use
to be incarcerated for no less than the stated minimum term. The
statute affords judges no discretion to impose a non-incarceratory
sentence or a below-minimum term.
As to the second point, the statutory text states that,
“[n]otwithstanding any other provision of law . . . no term of
imprisonment imposed on a person under this subsection shall run
concurrently with any other term of imprisonment imposed on the
person.” 18 U.S.C. § 924(c)(1)(D)(ii). The Supreme Court has
described this language as a “consecutive-sentence mandate.” Lora v.
United States, 599 U.S. at 457. A consecutive sentence is necessarily a
cumulative sentence. And a legislative mandate to make a sentence
consecutive to “any other term of imprisonment” imposed on the
defendant, “[n]otwithstanding any other provision of law,” 18 U.S.C.
§ 924(c)(1)(D)(ii) (emphasis added), strongly signals Congress’s intent
to authorize a cumulative § 924(c) punishment without exception.
Nevertheless, for some time, courts, including our own,
accepted the government’s concessions or otherwise concluded that
cumulative § 924(c) and § 924(j) sentences were not authorized.29 In
so doing, some courts construed § 924(j) as an aggravated version of
§ 924(c) that incorporated the latter’s consecutive minimum
29 See, e.g., United States v. Fernandini, 652 F. App’x 4, 6 (2d Cir. 2015); see also
United States v. Garcia-Ortiz, 657 F.3d 25, 28 (1st Cir. 2011); United States v.
Palacios, 982 F.3d 920, 924–25 (4th Cir. 2020); United States v. Gonzales, 841
F.3d 339, 357–58 (5th Cir. 2016); United States v. Wilson, 579 F. App’x 338,
348 (6th Cir. 2014); United States v. Cervantes, No. 16-10508, 2021 WL
2666684, at *7 (9th Cir. June 29, 2021).

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sentencing mandates and rejected arguments by defendants,
including Barrett, that § 924(c) and § 924(j) were separate offenses.30
The Supreme Court’s decision in Lora upsets this
understanding of § 924(c) and § 924(j). Although only a § 924(j)
sentence was at issue in Lora, the Court necessarily construed both
statutory provisions in reaching the conclusion that § 924(j)
incorporates only § 924(c)’s elements, not its sentencing mandates.
See Lora v. United States, 599 U.S. at 458–59. The Court’s reasoning—
unavailable to this court and our sister circuits when deciding the
above-cited cases—must now control any consideration of whether
Congress’s explicit intent for § 924(c) punishments to be consecutive
to “any other term of imprisonment,” 18 U.S.C. § 924(c)(1)(D)(ii),
30 See United States v. Young, 561 F. App’x at 93–94 (rejecting challenge to
consecutive § 924(j) sentence, observing that “[i]f . . . § 924(j) establishes a
separate offense not bound by § 924(c)’s penalty enhancements, then the
district court would not have dismissed after trial [§ 924(c) count] . . . as a
lesser-included offense of [§ 924(j) count]”); see also United States v. Barrett,
750 F. App’x at 23 (similar); United States v. Gonzalez, 841 F.3d at 357 [5th
Cir.] (citing United States v. Battle, 289 F.3d 661, 667 (10th Cir. 2002), in
observing that “[m]ost courts of appeals” have interpreted § 924(j) as
“additional aggravating punishment for the scheme already set out in
§ 924(c)” (internal quotation marks omitted)); United States v. Garcia-Ortiz,
657 F.3d at 31 [1st Cir.] (citing Battle and United States v. Dinwiddie, 618 F.3d
821, 837 (8th Cir. 2010), in stating that § 924(c)’s consecutive sentence
requirement “arguably applies to section 924(j)”); but see United States v.
Julian, 633 F.3d at 1253–57 [11th Cir.] (holding that § 924(j) is a “separate
offense” from § 924(c) that does not incorporate latter’s sentencing
mandates and suggesting that Congress intended to authorize cumulative
punishments under both provisions because § 924(j) “potentially increases
the sentence for a crime when the criminal uses a firearm” in causing death
and § 924(c) includes consecutive-sentence mandate).

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extends to § 924(j) sentences, or whether § 924(j) somehow negates
§ 924(c) mandates—even on § 924(c) counts of conviction—when
defendants are sentenced for related § 924(j) crimes. We understand
Lora’s reasoning, combined with the statutory text, to compel the
former conclusion.31
This is most evident in Lora’s recognition that Congress
specifically intended for a “different approach to punishment” to
apply to § 924(j) homicide crimes than to § 924(c) firearms crimes. 599
U.S. at 462. The Court reached this conclusion based on the
contrasting statutory text: § 924(c) is “full of mandatory penalties,”
both as to “minimum years of imprisonment” and “consecutive
sentences,” while § 924(j) “eschews mandatory penalties in favor of
sentencing flexibility.” Id. (emphasis in original). Thus, if a § 924(j)
homicide equates to involuntary manslaughter, a court may impose a
prison sentence of anywhere from zero to eight years; if the homicide
equates to voluntary manslaughter, to a sentence from zero to 15
years; and if it equates to murder, to any term of imprisonment for
years up to life or even the death penalty. See 18 U.S.C. § 924(j)
(borrowing from § 1112(b) for manslaughter punishments and from
§ 1111(b) for murder punishments). How a defendant uses a firearm
to cause death or the type of firearm used—the focus of § 924(c)’s
mandatory minimum sentences, see supra at 44–45 n.25—in no way
31 After Lora, the Fourth Circuit reiterated its Palacios holding that
cumulative punishments under § 924(c) and § 924(j) violate double
jeopardy. See United States v. Ortiz-Orellana, 90 F.4th 689, 705–06 (4th Cir.
2024). Because that court reached its conclusion without considering
congressional intent as reflected in the texts of § 924(c) and § 924(j), we do
not find that decision persuasive.

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informs or otherwise cabins a district court’s § 924(j) sentencing
discretion. Based on this stark textual difference, the Court concluded
that § 924(j) “supplies its own comprehensive set of penalties that
apply instead of subsection (c)’s” when a defendant is sentenced for
a § 924(j) crime. Lora v. United States, 599 U.S. at 460. Implicit in this
conclusion is the corollary that § 924(c)’s distinct text also provides
“its own comprehensive set of penalties”—“mandatory penalties,” id.
at 460, 462—that apply to a defendant being sentenced for a § 924(c)
crime without regard to the penalties imposed for a related § 924(j)
crime. In sum, as the Supreme Court earlier recognized, § 924(c)’s text
clearly expresses Congress’s intent that sentences for § 924(c) firearms
crimes must be no less than prescribed minimums and “must run
consecutively to all other prison terms.” United States v. Gonzales, 520
U.S. 1, 9–10 (1997).
Section 924(j) was not at issue in Gonzales. Rather, the Supreme
Court there considered whether Congress intended for § 924(c)’s
consecutive-sentence mandate to apply to other state as well as other
federal sentences. In answering that question in the affirmative, the
Court employed reasoning that also pertains here. Focusing on the
text of § 924(c)’s then-operative consecutive-sentence mandate—“nor
shall the term of imprisonment imposed under this subsection run
concurrently with any other term of imprisonment,” 18 U.S.C. § 924(c)(1)
(emphasis added)32—the Court concluded that a mandate applying to
32 Until 1998, § 924(c)’s consecutive-sentence mandate was located in
§ 924(c)(1), but it was identical in all materials respects to the current
consecutive-sentence mandate in § 924(c)(1)(D)(ii). See Pub. L. No. 105-386,
112 Stat. 3469, 3469–70 (1998) (restructuring § 924(c) by, inter alia, moving
consecutive-sentence mandate to § 924(c)(1)(D)(ii)).

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“any other term of imprisonment” must be construed to encompass
all other prison terms, state as well as federal, because “the word ‘any’
has an expansive meaning, that is, ‘one or some indiscriminately of
whatever kind,’” United States v. Gonzales, 520 U.S. at 5 (collecting
authorities construing word “any”). The Court specifically declined
a dissent suggestion to find otherwise because the state statute of
conviction “very much resemble[d]” § 924(c) in the conduct it
punished. Id. at 15 (Breyer, J., dissenting). The Court explained that
the “straightforward language of § 924(c) . . . speaks of ‘any term of
imprisonment’ without limitation.” Id. at 9 (emphasis added). Thus,
the text left “no room to speculate about congressional intent.” Id.
“When a defendant violates § 924(c), his sentencing enhancement
under that statute must run consecutively to all other prison terms.” Id.
at 9–10 (emphasis added).
Consistent with Gonzales’s construction of § 924(c)’s
consecutive-sentence mandate as “without limitation,” id. at 9, this
court has never suggested that this mandate is negated by a related
§ 924(j) sentence. Rather, before Lora, this court (and others cited
earlier) thought Congress’s intent that a § 924(c) crime be punished
by a consecutive minimum sentence could be effectuated by
incorporating that provision’s mandates into a § 924(j) sentence. See
supra at 56–57 & n.30. Lora now tells us that this was error because
§ 924(j)’s flexible penalty scheme is entirely distinct from § 924(c)’s
mandatory penalty scheme. Thus, nothing in § 924(c)’s text can be
understood to compel the imposition of a mandatory minimum or
consecutive sentence on a § 924(j) count of conviction. See Lora v.
United States, 599 U.S. at 458–59. But, so too, nothing in § 924(j)’s text
can be understood to signal Congress’s intent to abolish the

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consecutive minimum sentences mandated for § 924(c) counts of
conviction whenever a defendant is sentenced on a related § 924(j)
count. Rather, by its terms, § 924(c)’s consecutive-sentence mandate
applies “without limitation” to “all other prison terms,” United States
v. Gonzales, 520 U.S. at 9–10, which includes those imposed in the
court’s discretion under § 924(j).
Thus, based on the texts of § 924(c) and § 924(j), as now
construed by Lora, we conclude that Congress intended to authorize
cumulative sentences for a defendant convicted on related § 924(c)
and § 924(j) counts of conviction.
That conclusion finds further support in statutory structure. As
the Supreme Court observed in Lora, Congress specifically chose to
locate § 924(j) outside § 924(c). See 599 U.S. at 463 & n.6. Indeed, the
two provisions, enacted more than two decades apart, are separated
by “several unrelated subsections” with “nothing join[ing] their
penalties textually.” Id. at 461.33 This reinforces the conclusion that
Congress intended to create different crimes, subject to different
penalty schemes: § 924(c), focusing on the firearm or use made of it,
punishable by mandatory minimum, consecutive penalties, and
§ 924(j), focusing on the death caused by use of the firearm,
punishable by flexible penalties from zero up to death.
33 Congress added a consecutive-sentence mandate to § 924(c) in 1971, three
years after the statute was first enacted. See Pub L. No. 91-644, § 13, 84 Stat.
1880, 1889–90 (1971). Section 924(j) was enacted in 1994 as part of the
Federal Death Penalty Act, Pub. L. No. 103-322, § 60013, 108 Stat. 1796, 1973
(1994) (section titled “Death Penalty for Gun Murders During Federal
Crimes of Violence and Drug Trafficking Crimes”).

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Common sense also supports the conclusion. See Garrett v.
United States, 471 U.S. at 779, 785 (considering statutory “language,
structure, and legislative history” together with “common sense” in
determining whether Congress intended to authorize cumulative
punishments for overlapping offenses); accord United States v. Aquart,
92 F.4th at 104–06. Construing § 924(j) to negate § 924(c)’s consecutive
and minimum sentence mandates for defendants convicted under
both statutes, as Barrett now urges, would create the anomalous result
of affording only those defendants whose § 924(c) crimes actually
caused death the possibility of avoiding those mandates. See generally
Abbott v. United States, 562 U.S. 8, 21 (2010) (cautioning against
interpretations of § 924(c) that would “result in sentencing anomalies
Congress surely did not intend”). A court would be permitted to
impose a lower sentence on a defendant whose firearms use caused
death (the purportedly greater § 924(j) offense) than it would be
required to impose on a defendant whose firearms use in similar
circumstances did not cause death (the purportedly lesser-included
§ 924(c) offense). Nothing in the text of § 924(j) suggests that Congress
intended to create such an illogical carveout from § 924(c)’s
consecutive minimum sentence mandate.
Here again, Lora is instructive. The Supreme Court there
recognized not only that Congress had created distinct sentencing
schemes for § 924(c) and § 924(j) crimes, but also that a sentencing
court “cannot follow” both schemes as written in imposing a single
sentence. Lora v. United States, 599 U.S. at 459. Indeed, the Court
concluded that efforts to “combin[e] the two subsections” in
fashioning a single sentence “would set them on a collision course.”
Id. To illustrate, it hypothesized a § 924(j) conviction where death

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equating to voluntary manslaughter was caused by use of a
machinegun. Under § 924(j)(2), the maximum sentence for voluntary
manslaughter—regardless of the firearm used—is “not more than 15
years.” Id. at 459–60 (quoting 18 U.S.C. § 1112(b)). But § 924(c)’s
mandatory minimum for use of a machinegun—even without harm—
is “not less than 30 years.” Id. at 459 (quoting § 924(c)(1)(B)(ii)).
Because it would be “impossible” to fashion a single § 924(j) sentence
that was both “not less than 30 years” and “not more than 15 years,”
the Court concluded that Congress’s intent could not have been to
“require[] that unachievable result.” Id. at 460 (internal quotation
marks omitted). Thus, it construed § 924(j) to “suppl[y] its own
comprehensive set of penalties that apply instead of subsection (c)’s”
when a defendant is being sentenced on a § 924(j) count of conviction.
Id.34
34 The concern identified by the Supreme Court is not limited to its
hypothetical. Indeed, it is always impossible for a court sentencing under
§ 924(j) to comply with the “mandatory penalties” of § 924(c), while at the
same time retaining full “sentencing flexibility.” Lora v. United States, 599
U.S. at 462–63.
Nor is the concern minimized by the suggestion that double jeopardy does
not preclude separate sentences for a § 924(j) crime and a § 924(c) predicate
requiring proof of an additional fact (e.g., brandishing or firing a firearm, or
using a specific kind of firearm). See United States v. Munoz, No. 12 Cr. 00031
(VM), 2023 WL 4300981, at *11 n.6 (S.D.N.Y. June 30, 2023). Even assuming,
without deciding, that some § 924(c) and § 924(j) crimes could satisfy the
Blockburger test, § 924(c) mandates that all sentences imposed under that
subsection—whether for the basic § 924(c)(1)(A)(i) firearms use crime or an
aggravated variation—must run consecutively to “any other term of
imprisonment.” 18 U.S.C. § 924(c)(1)(D)(ii). Nothing in the text of § 924(c)
or § 924(j) suggests that Congress intended to abolish § 924(c)’s consecutive-

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The same reasoning applies to § 924(c). That statute also
“supplies its own comprehensive set of [mandatory minimum]
penalties,” id., as well as an explicit directive for those penalties to run
consecutively “with any other term of imprisonment,”
“[n]otwithstanding any other provision of law,” 18 U.S.C.
§ 924(c)(1)(D)(ii). This “straightforward language . . . leaves no room
to speculate about congressional intent”: “When a defendant violates
§ 924(c), his sentencing enhancement under that statute must run
consecutively to all other prison terms.” United States v. Gonzales, 520
U.S. at 9–10. That includes a prison term imposed on a related § 924(j)
count of conviction. Certainly, nowhere in Lora’s manslaughter-by-
machinegun hypothetical did the Supreme Court suggest that
imposition of the maximum 15-year sentence on a § 924(j)(2) homicide
count would preclude imposition of the mandatory minimum 30-year
sentence (or, indeed, any sentence35) on the predicate § 924(c)
machinegun count. Precisely because § 924(c)’s mandates make plain
Congress’s intent to deter any use of a machinegun with a consecutive
minimum sentence, regardless of harm, it would defy common sense
as well as text to conclude that, in § 924(j), Congress intended to create
an exception for defendants whose machinegun use actually caused
death. That same conclusion obtains with respect to Congress’s intent
sentence mandate for defendants convicted of a § 924(c)(1)(A)(i) count and
a § 924(j) count, but not for defendants convicted under any other § 924(c)(1)
provision.
35 Where double jeopardy applies, even concurrent sentences cannot be
imposed for the same crime. See Rutledge v. United States, 517 U.S. 292, 301–
02 (1996).

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to deter any of the other firearms crimes referenced in § 924(c)(1) with
mandatory consecutive minimum sentences irrespective of harm.
Nor is a different conclusion warranted by language in
§ 924(c)(1) protecting against the stacking of multiple punishments
for the same firearms conduct. That protection pertains only to
multiple mandatory minimum sentences, not to indeterminate
sentences. See 18 U.S.C. § 924(c)(1)(A) (stating that mandatory
minimum sentence prescribed by subsection must be imposed
“[e]xcept to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law”); see
Abbott v. United States, 562 U.S. at 13 (holding that § 924(c)(1)(A)
“except” clause “applies only when another provision—whether
contained within or placed outside § 924(c)—commands a longer
term for conduct violating § 924(c)”). Section 924(j) mandates no
minimum sentences. Thus, § 924(c)(1)(A)’s stacking provision does
not apply to a defendant such as Barrett convicted on a § 924(c) count
with a five-year mandatory minimum and on a § 924(j) count with no
mandatory minimum. In such circumstances, the language of
§ 924(c)(1)(D)(ii) controls, requiring the district court to impose the
minimum sentence mandated by § 924(c) consecutive to any other
terms of imprisonment imposed. This consecutive-sentence mandate
plainly authorizes § 924(c) sentences cumulative to all others, which
includes sentences imposed under § 924(j). Cf. Abbott v. United States,
562 U.S. at 25 (holding that § 924(c)(1)(A) “except” clause must be
construed to “give[] effect to the statutory language commanding that
all § 924(c) offenders shall receive additional punishment for their
violation of that provision” (emphasis added)).

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Congress’s intent in affording courts broad discretion in
sentencing a defendant on a § 924(j) homicide count is thus best
understood by recognizing, as Congress presumably did, that it had
already explicitly mandated a minimum, consecutive punishment for
the predicate § 924(c) firearms crime. A district court can take a
mandated § 924(c) sentence into account in determining an
appropriate § 924(j) sentence. Cf. Dean v. United States, 581 U.S. 62,
69–70 (2017) (holding that court can “consider a sentence imposed
under § 924(c) when calculating a just sentence for the predicate
count”). In sum, we conclude that Congress’s clear intent in creating
two “comprehensive set[s] of penalties” in § 924(c) and § 924(j)—ones
that “cannot” both be followed in a single sentence without risking
“collision,” Lora v. United States, 499 U.S. at 459–60—was to authorize
cumulative punishments for separate crimes, the sentence for each
crime determined by reference to its own particular statutory scheme.
As applied to this case, this conclusion means that to correct the
identified procedural error in Barrett’s sentence, the district court, on
remand, must resentence him on Count Seven following the
sentencing regimen established by § 924(j) as construed by the
Supreme Court in Lora and without regard to § 924(c)’s mandates. At
the same time, however, the district court must sentence Barrett on
Count Six within the sentencing regimen established by § 924(c). In
so ruling, we express no view as to the particular sentences the district
court should impose on these two counts or its overall sentence. We
reiterate only that the district court can consider the consecutive
minimum sentence mandated by § 924(c) in determining an
appropriate § 924(j) sentence. See Dean v. United States, 581 U.S. at 69–
70.

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B. Substantive Unreasonableness36
Barrett submits that his 50-year sentence is substantively
unreasonable because such a lengthy term is unnecessary to protect
the public in light of his rehabilitation, ineffective in providing
correctional treatment, and more severe than the sentences imposed
on his confederates. We are not persuaded.
To succeed on a substantive unreasonableness claim, a
defendant bears a “heavy” burden because this court does not itself
attempt to identify “a ‘right’ sentence,” but instead “defer[s] to the
district court’s exercise of judgment” so long as the challenged
sentence can be located “within the range of permissible decisions
available to a sentencing court.” United States v. Messina, 806 F.3d 55,
65–66 (2d Cir. 2015) (internal quotation marks omitted). It is
particularly difficult for a defendant to make that showing when, as
here, he challenges a below-Guidelines sentence. See id. at 66.
Barrett cannot show that a 50-year sentence fell outside the
range of permissible sentences available to the district court. Barrett
36 Where, as here, we identify procedural error in a sentence, “‘we may
remand to the district court for resentencing without proceeding to a
substantive review of the original sentence, or, where circumstances
warrant, we may review for both procedural error and substantive
unreasonableness in the course of the same appeal.’” United States v. Young,
811 F.3d 592, 599 (2d Cir. 2016) (quoting United States v. Tutty, 612 F.3d 128,
131 (2d Cir. 2010)). Because the identified procedural error does not
foreclose the district court from imposing the same sentence on remand,
judicial economy supports our addressing Barrett’s substantive argument
now. Indeed, Barrett had expressed a preference for us to prioritize his
substantive challenge over his Lora argument. See Appellant’s Sec. Supp.
Br. at 7–8.

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and his confederates committed “a series of frequently armed, and
invariably violent, robberies,” in the course of one of which Dafalla
was murdered. Barrett I, 903 F.3d at 170–71. While Barrett argues to
this court, as he did to the district court, that he did not personally
shoot Dafalla, the district court reasonably assigned him
responsibility for that murder based on his active efforts to cover up
the killing and his participation in the violence that attended other
prior and subsequent robberies. That included a robbery committed
within hours of Dafalla’s murder in which Dore and Barrett were both
armed and Barrett specifically threatened to kill the robbery victim.
See supra at 6; Resent’g Tr. 27–30.
Barrett’s argument that confederates received more lenient
sentences warrants no different conclusion. The law does not require
a district court to “consider or explain sentencing disparities among
codefendants.” United States v. Alcius, 952 F.3d 83, 89 (2d Cir. 2020).
In any event, Barrett is not similarly situated to confederates receiving
more lenient sentences who either pleaded guilty, were not convicted
of murder, participated in less violence or fewer robberies, had less
serious criminal histories, or some combination thereof. See United
States v. Lee, 653 F.3d 170, 175 (2d Cir. 2011) (concluding defendant
not similarly situated to co-defendant because of role in offense);
United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006) (observing
sentencing difference justified where defendant did not plead guilty,
unlike co-defendant), abrogated on other grounds by Rita v. United States,
551 U.S. 338 (2007); United States v. Frias, 521 F.3d 229, 236 (2d Cir.
2008) (concluding defendant not similarly situated to co-defendant
who pleaded guilty to less serious crimes).

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Insofar as Barrett’s remaining arguments appear to question
the particular weight afforded to various aggravating and mitigating
factors, that matter is “firmly committed to the discretion of the
sentencing judge.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d
Cir. 2012) (internal quotation marks omitted). On resentencing the
district court recognized Barrett’s improvement in prison and
accorded that factor considerable weight in reducing his sentence.
Nevertheless, the court explained that such improvement could not
outweigh the seriousness of the crimes committed. See supra at 13–14.
That decision was well within the district court’s discretion.
In sum, the challenged 50-year sentence for a recidivist
defendant convicted of multiple violent robberies, in one of which a
victim was murdered, is “within the range of permissible decisions.”
United States v. Messina, 806 F.3d at 66 (internal quotation marks
omitted). We therefore reject as meritless Barrett’s argument that his
sentence is substantively unreasonable.
CONCLUSION
To summarize:
1. Barrett’s appellate counsel was not constitutionally
ineffective in failing to argue that the evidence was
insufficient to prove the Hobbs Act robbery necessary to
support his conviction on Counts Five, Six, and Seven.
2. Circuit precedent compels the conclusion that Hobbs Act
robbery is a categorical crime of violence. See United States
v. McCoy, 58 F.4th 72 (2d Cir. 2023).

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3. The district court did not commit a procedural sentencing
error in applying U.S.S.G. § 2A1.1 to calculate Barrett’s
recommended Sentencing Guidelines range.
4. Lora v. United States, 599 U.S. 453 (2023), decided after Barrett
was resentenced in 2021, compels the conclusion that the
district court committed procedural error in applying
§ 924(c)’s minimum and consecutive sentence mandates to
Barrett’s § 924(j) sentence on Count Seven. On remand, the
district court must impose separate sentences under § 924(c)
on Count Six and under § 924(j) on Count Seven consistent
with Lora and this opinion.
5. Barrett’s below-Guidelines total prison sentence of 50 years
is not substantively unreasonable.
Accordingly, we VACATE the district court’s May 21, 2021
amended judgment of conviction only as to its sentence, and we
REMAND for resentencing consistent with the Supreme Court’s
decision in Lora v. United States, 599 U.S. 453 (2023), and this opinion.
In all other respects, the May 21, 2021 amended judgment is
AFFIRMED.

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