United States v. Barret ( 2022 )

21-1743
United States v. Barret
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 22nd day of December, two thousand twenty-two.
PRESENT: Susan L. Carney,
Steven J. Menashi,
Beth Robinson,
Circuit Judges.
____________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 21-1743-cr
CHRISTOPHER BARRET, DBA DERRICK BROWN,
AKA SEAN BROWN, AKA MOUTHY, AKA THE
GENERAL, AKA CHRIS, AKA SOLO,
Defendant-Appellant,
KAREEM FORREST, AKA DOOLEY, AKA
KAREEM FOREST, RYAN ANDERSON,
AKA DRE, JOSEPH DONALDSON, AKA
SCRATCHY, CHARLES JONES, AKA SPEEDY,
AKA SHAWN BROWN, AKA CHARLES JONES,
KEVIN LEE, AKA BALA BOY, LATOYA
MANNING, LEEMAX NEUNIE, AGENT OF
JUKES, VINCENT QUINONES, KUAME WILSON,
AKA KWAUME WILSON, KERRY GUNTER, AKA
GUNS, ANDRE WILSON, AKA MARIO, LEON
SCARLETT, AKA AGONY, AKA PIGGY, OMAR
MITCHELL, AKA SOX,
Defendants.
____________________________________________
For Defendant-Appellant: BRENDAN WHITE, White & White, New
York, NY.
For Appellee: GILLIAN KASSNER (Susan Corkery, on the
brief), Assistant United States Attorneys, for
Breon Peace, United States Attorney for the
Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Matsumoto, J.).
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Upon due consideration, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Christopher Barret appeals the judgment of the U.S.
District Court for the Eastern District of New York granting his 28 U.S.C. § 2255motion in part, vacating two of his convictions, and conducting a limited
resentencing as to a third conviction. We assume the parties’ familiarity with the
facts and procedural history of this case.
On appeal, Barret argues principally that the district court erred because it
did not conduct a de novo resentencing. He argues that United States v. Quintieri,
306 F.3d 1217 (2d Cir. 2002), and United States v. Rigas, 583 F.3d 108 (2d Cir. 2009),
require a district court to conduct a de novo resentencing whenever any single
conviction of two or more convictions is vacated, as is the case here. But our recent
decision in United States v. Peña forecloses that argument. See No. 20-4192, 2022 WL
17587854 (2d Cir. Dec. 13, 2022). In that case, we held that “Section 2255’s plain
text, which vests district courts with discretion to select the appropriate relief from
a menu of options, precludes us from applying the default rule in Rigas to all cases
that arise in the § 2255 context.” Id. at *3. Accordingly, Barret was not entitled to
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de novo resentencing on the ground that his § 2255 motion resulted in vacatur of at
least one conviction.
In Peña, we said that a district court may abuse its discretion in denying de
novo resentencing when “resentencing would not be strictly ministerial.” Id. at *7.
In this case, however, Barret has not advanced the alternative argument that the
district court abused its discretion under § 2255. He therefore abandoned that
argument. See United States v. Joyner, 313 F.3d 40, 44 (2d Cir. 2002) (“It is well
established that an argument not raised on appeal is deemed abandoned and
lost.”) (quoting United States v. Babwah, 972 F.2d 30, 34-35 (2d Cir. 1992)).
Separately, Barret argues on appeal that his § 924(c) conviction must be
vacated in light of United States v. Davis, 139 S. Ct. 2319 (2019). Section 924(c)
prohibits the use of a firearm in relation to any “crime of violence or drug
trafficking crime.” 18 U.S.C. § 924(c)(1)(A). Barret’s indictment based the § 924(c)
charge on “carry[ing] one or more firearms during and in relation to one or more
drug trafficking crimes.” App’x 63. Thus, his § 924(c) conviction was not based on
carrying a firearm in relation to a crime of violence. Davis invalidated a clause
defining a “crime of violence.” Davis, 139 S. Ct. at 2336. Because Barret’s § 924(c)
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conviction did not depend on the clause at issue in Davis, that case provides him
no basis for relief.
For the foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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