Supreme Court Will Hear Double Jeopardy Appeal From New York Man Convicted in Robbery

A jury convicted Dwayne Barrett of multiple violations of federal law. He was sentenced to 90 years behind bars.

The U.S. Supreme Court in Washington on Feb. 10, 2025. Madalina Vasiliu/The Epoch Times

The U.S. Supreme Court on March 3 decided to consider if the Constitution’s double jeopardy ban allows a person to be sentenced for two separate crimes arising out of the same robbery.

Specifically, the petitioner, Dwayne Barrett, questions whether a person may be sentenced both for wielding a gun and using that gun to kill someone during the commission of a robbery.

The court’s decision in Barrett v. United States came in an unsigned order without comment. No justices dissented. At least four of the nine justices must approve a petition for it to move to the oral argument stage.

The double jeopardy clause in the Fifth Amendment to the Constitution states that no person shall “be twice put in jeopardy of life or limb” for the same offense.

The petition filed on Oct. 15, 2024, stated that Barrett was the driver for a group of robbers. One day in 2011, when he was not in attendance, one of his co-defendants shot and killed a man for tossing a bag of cash out of a moving vehicle.

A federal jury in the Southern District of New York convicted Barrett of multiple violations of the Hobbs Act and other federal legal provisions. He was sentenced to 90 years in prison.

The Hobbs Act is a federal statute that prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce as well as conspiracies to do so.

Barrett was found to have driven a co-defendant to the scene of the crime, which is a violation of Title 18 U.S. Code Section 1951, according to a brief filed on Jan. 17 by then-Solicitor General Elizabeth Prelogar.

For his role in the criminal enterprise, the jury convicted Barrett of one count of conspiracy to commit Hobbs Act robbery, as well as two counts of Hobbs Act robbery.

Barrett was convicted of one count of “murder using a firearm during a crime of violence,” which is a violation of Section 924(j) of Title 18. He was also convicted of three counts of the lesser included offense of “carrying and using a firearm during and in relation to a crime of violence,” which runs afoul of Section 924(c) of Title 18.

In criminal law, an included offense is a less severe offense that is committed in the act of perpetrating a more serious crime. For example, if a burglar breaks a window to gain access to premises from which he steals, the breaking of the window may be charged separately as the lesser offense of destruction of property or vandalism.

In his petition, Barrett urges the Supreme Court to confirm that a defendant may be held criminally liable under Section 924(j) or Section 924(c) but not both.

“The only meaningful difference is that section 924(j) requires proof of one additional fact: the death,” the petition said. “Accordingly, section 924(c) is a lesser included offense of section 924(j).”

“Congress could have authorized cumulative punishments for convictions under sections 924(c) and 924(j) had it chosen to do so. But the plain language of section 924(j) indicates no such desire,” the petition said.

The U.S. Courts of Appeal for the First, Fourth, Fifth, Sixth, and Ninth Circuits agree with this argument but the Second Circuit does not. When the Second Circuit heard Barrett’s appeal, it held that 924(c) and 924(j) are “separate offenses for which Congress has clearly authorized cumulative punishments,” the petition said.

Although “Barrett’s [Section] 924(c) crime is a lesser-included offense of his [Section] 924(j) crime,” the circuit court found in May 2024 that “Congress intended to authorize cumulative sentences for a defendant convicted on related [Section] 924(c) and [Section] 924(j) counts of conviction.”

The petition said the Supreme Court should “resolve the split over this oft-posed and important question, the answer to which can mean two prison terms—one of ‘15 years’ plus a consecutive one of ‘30 years’—rather than one sentence of ‘not more than 15 years.’”

Prelogar had asked the Supreme Court to reject the appeal, saying the double jeopardy concerns could be overcome in the lower courts.

“The district court could structure the sentence—or, consistent with its longstanding approach in cases like this one, the government would be able to seek dismissal of one of the relevant charges—to avoid any constitutional violation or render it harmless.”

Prelogar also acknowledged it has long been the federal government’s “position that cumulative punishment under Section 924(c) and (j) for the same use of a firearm is not permitted.”

The case is expected to be heard in the Supreme Court’s new term that begins in October.

The Epoch Times reached out for comment to Barrett’s attorney, Matthew Larsen of New York City, and to the U.S. Department of Justice. No replies were received by publication time.