Barrett v. United States

Whether the residual clause at 18 U.S.C. § 924(c)(3)(B) is void for vagueness, a question that evenly divides six Courts of Appeals.

Petitioner was convicted of seven counts of robbery, during one of which, a person was shot and killed by a co-participant. Petitioner appealed his conviction for violating 924(c)(1)(A), which was based on furthering a “crime of violence” with the possession of a gun. The “crime of violence” was Hobbs Act conspiracy to commit robbery. 18 U.S.C. § 1951(a). In his appeal, Petitioner noted Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court adopted a categorical approach to assessing violent felonies and held the Armed Career Criminal Act void for vagueness. The Second Circuit affirmed Petitioner’s conviction. Petitioner argues in his brief to the Supreme Court that the circuits are divided on whether 924(c)(1)(A) is constitutional and therefore the law is being inconsistently applied based on where prosecutions occurs. Petitioner further argues that the Second Circuit is wrong in abandoning the “‘ordinary case’ categorical approach,” especially after the Court reaffirmed the approach in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Furthermore, Petitioner notes the "casee specific" approach utilized by the Second Circuit is itself unconstitutional. Petitioner distinguishes the instant case as adding a question of whether an “each case” approach is permitted in addition to the “case specific” inquiry from United States v. Davis, No. 18-431. The Court vacated and remanded in light of United States v. Davis, 588 U.S. __ (2019). VACATED and REMANDED.