We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ONE TO A CUSTOMER
Cigarettes are bad for you, whether you’re smoking them or stealing them. Dwayne Barrett found that out too late. But his campaign to stamp out smoking by robbing vendors of their tobacco products led to a Supreme Court decision yesterday on the reach of the federal criminal code’s harsh and unforgiving gun penalty statute.Dwayne and his gang – unimaginatively just called the “Crew” – committed a series of at least eight robberies in New York, New Jersey and Pennsylvania between August 2011 and January 2012. Their niche was knocking over convenience stores and illegal cigarette vendors, guys who sell untaxed cowboy killers smuggled from southern states at a discount because the merch is untaxed. Such people made good marks for Dwayne and his Crew because the victims can hardly file police reports.
But it’s hard to hide a heist from the authorities when someone gets killed. During one robbery, Dwayne and two other Crew members stuck up three guys selling untaxed cigarettes out of the back of a minivan. Brandishing guns, two of the Crew hijacked the minivan and drove off with one of the victims, Gamar Dafalla, still aboard. Mr. Dafalla surreptitiously threw $10,000 in sales proceeds out of the moving vehicle. Enraged by this, the Crew member shot Mr. Dafalla to death.
Dwayne was following the van in a car, so he wasn’t present when the killing occurred, but he was charged with the robbery, with tried to prevent his merchandise from being stolen.
Dwayne was convicted of Hobbs Act robbery and conspiracy, as well as several 18 USC § 924(c) counts for using guns to commit the robberies (crimes of violence under § 924(c)). In the case of the death of Mr. Dafalla, Dwayne was convicted of both a § 924(c) count – because his co-conspirator was using and carrying a gun during the robbery – and an 18 USC § 924(j) offense (because death resulted from the § 924(c) conduct). Thus, he was convicted under both statutes for the same act, essentially treating the gun use that caused Mr. Dafalla’s death as a basis for two separate convictions.
Dwayne was sentenced to 90 years in prison, later reduced to 50 years. Twenty of those years came from concurrent sentences on three Hobbs Act robbery counts. Twenty-five years came from a consecutive term on the § 924(j) conviction, into which the District Court – believing that § 924(c) and § 924(j) were not separate offenses that could be punished cumulatively – merged into the § 924(c) conviction.
The Second Circuit, however, rejected the District Court’s position that the Double Jeopardy Clause required it to treat § 924(c) and § 924(j) as the same offense. Although the Government regularly concedes that § 924(c) and § 924(j) overlap and may not be punished cumulatively and qualify as the same offense under the governing test laid out in Blockburger v. United States, it convinced the Circuit that the two provisions “are separate offenses for which Congress has clearly authorized cumulative punishments.”
The 5th Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” In the 1932 Blockburger decision, the Supreme Court directed reviewing courts to evaluate whether one criminal statute required proof of any element that another did not. If no different proof was needed, double jeopardy barred additional prosecution and punishment.
While Congress may pass two different statutes directed at prohibiting the same offense, the Blockburger presumption holds that Congress ordinarily does not intend to do so. This means that courts must find evidence of Congress’s intent before finding that different statutes punish the same crime, and thus that a defendant cannot be charged or punished for violating both under Blockburger.
Yesterday, the Supreme Court sided with Dwayne and the District Court, applying the Blockburger presumption that Congress did not clearly authorize convictions under both §§ 924(c) and (j) for a single act that violates both provisions. In other words, one conviction and one sentence for one violation. One to a customer.
Blockburger addresses whether multiple convictions, not just multiple sentences, are allowed by the 5th Amendment. The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes, where punishment means a criminal conviction and not simply the imposition of sentence.
When enacted, § 924(c) made it a discrete offense to use or carry a firearm in connection with a predicate federal crime of violence or drug trafficking crime. Congress later added § 924(j) to provide a different penalty scheme for § 924(c) violations that cause death. Section 924(j) has no mandatory minimums, the Supreme Court observed, but instead authorized significant maximum sentences – including the death penalty or life in prison – when the underlying violation is murder committed with a gun.
In a unanimous opinion (but for a partial concurrence by Justice Neil Gorsuch, Justice Ketanji Brown Jackson wrote that § 924’s text “suggests strongly, perhaps conclusively,” that Congress did not disavow Blockburger here. Congress included Blockburger-surmounting language twice within § 924(c) itself: It mandated that a § 924(c)(1) conviction must be “in addition to the punishment provided for” the underlying violent or drug crime and it also mandated that a conviction under § 924(c)(5)—for using or carrying armor piercing ammunition—must be “in addition to the punishment provided for” the conviction under” § 924(c)(1).
Such “in addition to” language has previously been found to be “crystal clear” evidence of a legislature’s intent to overcome Blockburger. But Congress used no similar language with respect to the interplay between subsection (c)(1) and subsection (j).
Dwayne’s case could have implications for future convictions across the country.
Gorsuch argued in his concurrence that the Court has been confusing about double jeopardy in the past. The Supreme Court has at times said the clause “protects against multiple punishments for the same offense,” he wrote, and has held that multiple convictions for the same offense constitute multiple punishments, even when secured in a single proceeding. “From this, it would seem to follow that Congress cannot authorize multiple convictions for the same offense in concurrent prosecutions. But this Court has also sometimes said that, in the concurrent-prosecution context, the Clause merely directs courts to ascertain statutory meaning accurately,” Gorsuch wrote.
He said the court will someday need to resolve that “tension.”
Barrett v. United States, Case No. 24-5774, 2026 U.S. LEXIS 433 (January 14, 2026)
Blockburger v. United States, 284 U.S. 299 (1932)
The National News Desk, Supreme Court limits dual charges in overlapping gun statutes (January 14, 2026)
~ Thomas L. Root
The Supreme Court last Wednesday prevented the Federal Bureau of Prisons from denying certain gender-transition medical treatments for transgender inmates at federal prisons while the lawsuit over the issue works its way through the courts.
The lawsuit disputes the government’s argument that the treatments are not supported by the most recent science. The plaintiffs also note that prison officials in past administrations had not raised safety concerns regarding inmates receiving the care.
