Double jeopardy claims unlikely to sway justices in fatal shooting case

WASHINGTON (CN) — The Supreme Court expressed skepticism Tuesday that a New York man’s 50-year prison term on robbery and murder charges should be vacated over concerns that part of the sentence violates the double jeopardy clause as punishment for the same offense.

Tuesday’s arguments centered on whether a defendant can be sentenced to cumulative prison terms both for murder using a firearm during a Hobbs Act robbery, and also for using a firearm during the same robbery.

The justices sought to determine whether Congress intended to authorize cumulative punishments for the same conduct, something the appellate circuits are split on.

Dwayne Barrett, the petitioner in the case, engaged in a series of armed robberies with a group called the “Crew” between August 2011 and January 2012, working as the group’s driver targeting small businesses. The group’s robbery of Ahmed Salahi and later robbery and murder of Gamar Defalla resulted in Barrett being sentenced to 90 years in prison, which was later shaved down to 50 years at resentencing.

Following Defalla’s murder, a New York grand jury indicted Barrett on seven counts: one count of conspiring to commit Hobbs Act robbery, two counts of Hobbs Act robbery, three counts of carrying and using a firearm in relation to a crime of violence and one count of murder using a firearm during a crime of violence. He was soon after convicted on all counts by a federal jury.

Barrett’s first, 90-year sentence included: 20 years on the Hobbs Act conspiracy, 15 years on each Hobbs Act robbery count, to run concurrently to each other but consecutive to the conspiracy count, a five-year consecutive sentence on a Section 924(c) count, a 25-year consecutive sentence on a second Section 924(c) count, and a 25-year consecutive sentence on a Section 924(j) count.

His appeal to the Second Circuit Court of Appeals failed, but the Supreme Court vacated the sentence and remanded for further consideration under the 2019 decision in United States v. Davis , which found the statute’s definition of “crime of violence” was unconstitutionally vague.

On remand, Barrett was resentenced to 50 years in prison, with 20-year concurrent sentences on the Hobbs Act conspiracy and two Hobbs Act robberies, a consecutive five-year sentence for Salahi’s robbery and a consecutive 25-year sentence for Defalla’s murder.

Matthew Larsen, of Federal Defenders of New York and representing Barrett, argued that Congress did not provide an explicit authorization for a defendant to be sentenced to cumulative punishments for the same conduct, in this case the murder.

Under the statute, Congress wrote that any underlying convictions can only result in a cumulative punishment when matched with a conviction for a drug trafficking offense, Larsen said.

Specifically, the text says such punishments can be provided “in addition to” the drug trafficking sentences, then does not use such language later in the statute, Larsen said.

The Justice Department generally agreed with Larsen. Aimee Brown, assistant to the solicitor general, adding that if the justices were to rule against Barrett and uphold the cumulative punishments, prosecutors could simply dismiss one of the counts at sentencing to avoid any double jeopardy concerns.

Charles McCloud, of Williams Connolly, was appointed by the court to argue in support of the Second Circuit’s decision. McCloud urged the court to reject Larsen’s “magic words” argument and said that Congress, while not “crystal,” was still clear throughout the statute.

From Congress’ perspective, McCloud said, it should be obvious that any defendant with a Section 924(j) penalty is still subject to Section 924(c) penalties, and since the latter section requires a minimum between 5 and 10 years, a defendant can thus receive cumulative sentences.

Justice Ketanji Brown Jackson told McCloud that Congress seemed to add Section 924(j) to attach the death penalty as a potential sentence for fatal shooting related to Section 924(c).

The Joe Biden appointee noted that if a defendant were sentenced to death under Section 924(j), then the issue of further imposing 5 to 10 years on top made little difference, adding that it would make sense for the greater offense to control, rather than the lesser.

The high court’s ultimate decision will clear up a split among the appellate circuits. The First, Fourth, Sixth and Ninth have held that imposing sentences under both Section 924(c) and Section 924(j) for the same conduct violates the double jeopardy clause. Meanwhile the Second Circuit and the 11th Circuits have held that the clause does permit separate sentences.

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