As blogged about here, Judge Johnson of the E.D.N.Y. has ruled that attempted Hobbs Act robbery is not a “crime of violence” under 18 U.S.C. § 924(c).
He’s just been joined by Judge Telesca of the W.D.N.Y. “[A]ttempted Hobbs Act robbery does not categorically entail the use, threatened use, or attempted use of force.” Lofton v. United States, 2020 WL 362348, at *9 (W.D.N.Y. Jan. 22, 2020). That is because the “requisite categorical approach,” by “which a court must examine ‘the minimum criminal conduct necessary for conviction,’” shows that the crime can be committed “‘without any use, attempted use, or threatened use of violence.’” Id. at *7 (citations omitted).
As briefed in a pending case, United States v. Pica, E.D.N.Y. 08-559, the minimum conduct for attempted Hobbs Act robbery is surveilling a target with the intent to rob him but not actually use force: in short, to bluff. That was the intent of the defendant in the pending case, who intended to commit robbery by making an empty threat of force. As the judge found, “it was not Mr. Pica’s intention that the gun be used.” Sent. Tr. 15. That is irrelevant to guilt, as attempted Hobbs Act robbery does not require intent to use force. All it requires is intent to rob. And that makes all the difference here. One can attempt Hobbs Act robbery by surveilling a target with the intent to rob him by bluffing. Such surveillance involves no actual or threatened use of force. And because an “attempt requires intent,” United States v. Chu, 714 F.3d 742, 747 (2d Cir. 2013), someone who intends to bluff and thus has no intent to actually use force lacks the intent required for an attempted use of force.
Attempted Hobbs Act robbery requires no actual, threatened or attempted use of force. As various judges are thus ruling, it is not a “crime of violence.”