Opinion
18-804-cr
05-20-2020
UNITED STATES OF AMERICA., Appellee, v. NEIL DUSSARD, Defendant-Appellant, LOUIS KNIGHT, DAVID PIERRE, RICARDY LOUISSANT, KAREEM ABDUL MATHIS, Defendants.
FOR APPELLEE: KIMBERLY J. RAVENER (Sagar Ravi, Karl Metzner, on the brief), Assistant United States Attorneys for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY. FOR DEFENDANT-APPELLANT: DEVIN MCLAUGHLIN, Langrock Sperry & Wool, LLP, Middlebury, VT.
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 20th day of May, two thousand twenty. PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, JOSÉ A. CABRANES, Circuit Judges.
FOR APPELLEE:
KIMBERLY J. RAVENER (Sagar Ravi, Karl Metzner, on the brief), Assistant United States Attorneys for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.
FOR DEFENDANT-APPELLANT:
DEVIN MCLAUGHLIN, Langrock Sperry & Wool, LLP, Middlebury, VT.
Appeal from a March 15, 2018 judgment of the United States District Court for the Southern District of New York (George B. Daniels, Judge).
Defendant-Appellant Neil Dussard ("Dussard") seeks to vacate his conviction for possessing a gun during a crime of violence under 18 U.S.C. § 924(c)(1)(A) in light of recent decisions concluding that conspiracy to commit Hobbs Act robbery—for which he also stands convicted—may not serve as a predicate crime of violence for § 924(c)(1)(A) purposes. See United States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019) (noting that recent Supreme Court precedent "precludes us from concluding . . . that [Defendant's] Hobbs Act robbery conspiracy crime qualifies as a § 924(c) crime of violence"). Dussard asks this Court to make a determination on the merits of the case and to determine whether he can be reindicted on charges dropped as part of his plea agreement—and then, if we determine he can be reindicted, to provide him an opportunity to withdraw his appeal so that he may avoid a potentially greater sentence.
Since we cannot issue such advisory opinions, we decline to rule on Dussard's appeal at this point. See United States Nat'l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 446 (1993) ("[A] federal court lacks the power to render advisory opinions." (internal alterations omitted)) Instead, we will provide Dussard three weeks—until June 10, 2020—to notify the Clerk of Court if he wishes to proceed with his appeal or if he wishes to withdraw it. If he chooses to proceed, then we will consider the case submitted for decision at that point.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk