Archive | Hobbs Act

Thursday, October 15th, 2020

Fourth Circuit: Attempted Hobbs Act Robbery Is Not A 924(c) Crime Of Violence

In United States v. Taylor, the Fourth Circuit became the first court of appeals to hold that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3)(A)’s elements clause.

Taylor granted a successive 28 U.S.C. § 2255 motion and vacated the movant’s § 924(c) conviction, which had been predicated on both conspiracy to commit Hobbs Act robbery (not a crime of violence under Fourth Circuit precedent, nor under the Second Circuit’s decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019)); and (attempted Hobbs Act robbery.

Taylor reasons that one may attempt Hobbs Act robbery by (i) intending to commit a robbery through a threat of force, and (ii) taking a nonviolent substantial step toward that objective, such as planning the robbery or reconnoitering the target. “Where a defendant takes a nonviolent substantial step toward threatening to use physical force—conduct that …

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Categories: 924(c), Hobbs Act, robbery

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Thursday, January 23rd, 2020

Another Court Rules Attempted Hobbs Act Robbery is NOT a “Crime of Violence”

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.  …


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Categories: 924(c), crime of violence, Hobbs Act, robbery

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Friday, January 10th, 2020

EDNY: Attempted Hobbs Act Robbery Is Not A § 924(c) Crime of Violence.

In United States v. Tucker, 2020 WL 93951 (E.D.N.Y. Jan. 8, 2020), the district court (Johnson, J.), held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c), and granted defendant’s pretrial motion to dismiss a § 924(c) count predicated on that offense.

Tucker reasons as follows: An attempt requires only a substantial step toward completing the object crime, and for Hobbs Act robbery, “the Second Circuit has found ‘reconnoitering the place contemplated for the commission of the crime’ or possession of ‘paraphernalia to be employed in the commission of the crime’ to be sufficient to constitute a ‘substantial step.’” Tucker, 2020 WL 93951, at *5 (quoting United States v. Jackson, 560 F.2d 112, 120 (2d Cir. 1977)). Such conduct is not necessarily forceful or violent:

“[A] person may engage in an overt act—in the case of robbery, for example, … …


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Categories: 924(c), crime of violence, Hobbs Act, robbery

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Friday, August 30th, 2019

FINAL DECISION by the Second Circuit in BARRETT

Because the residual clause of 18 U.S.C.§  924(c)(3)(B)  is unconstitutionally vague, “conspiracy” to commit Hobbs Act robbery isn’t a qualifying 924(c) predicate, since Hobbs Act conspiracy doesn’t meet the elements clause of § 924(c)(c)(3)(A). United States v. Barrett, No. 14-2641-cr, __F.3d__, 2019 WL 4121728  (Aug. 30, 2019). 

The Supreme Court vacated the Second Circuit’s original judgment that affirmed Barrett’s conviction (see 903 F.3d 166). And it remanded the case to the Circuit for further consideration in light of United States v. Davis, 139 S. Ct. 2319 (June 24, 2019). See  Barrett v. United States, 139 S.Ct. 2774 (June 28, 2019) (“petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of United States v. Davis[.]”).

In United States v. Davis, 139 S. Ct. 2319 (2019), the Supreme …


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Categories: 924(c), conspiracy, crime of violence, Davis, Hobbs Act, Johnson

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Wednesday, July 24th, 2019

Is attempted Hobbs Act robbery a “crime of violence” for purposes of § 924(c) after Davis?

In the Second Circuit, a substantive Hobbs Act robbery qualifies as a “crime of violence” for purposes of § 924(c) under its elements (or force) clause, § 924(c)(3)(A). See United States v. Hill, 890 F.3d 51 (2d Cir. 2018). But a conspiracy to commit Hobbs Act robbery does not qualify as a crime of violence for purposes of § 924(c), because United States v. Davis, 139 S. Ct. 2319 (June 24, 2019), invalidated the residual clause of § 924(c)(3)(B) as unconstitutionally vague (and a conspiracy does not qualify under the elements clause).

That leaves the question of whether attempted Hobbs Act robbery qualifies as a § 924(c) crime of violence after Davis. The Second Circuit has not answered this question — i.e., whether attempted Hobbs Act robbery “has as an element the use, attempted use, or threatened use of physical force against the person or property …


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Monday, July 8th, 2019

The Supreme Court Vacates Barrett

The Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 ( 2d Cir. 2018), was vacated by the Supreme Court in a GVR order on June 28, 2019, in light of United States v. Davis, 588 U.S. __, 2019 WL 2649797. Davis held, contrary to Barrett, that the residual clause of 924(c)(3)(B) is void for vagueness. See Blog Post dated June 26, 2019.

In light of the Supreme Court’s order in Barrett, the government has acknowledged that Hobbs Act conspiracy no longer qualifies as a crime of violence under §924(c) because it does not qualify under the “force” or “elements” clause. So §924(c) convictions based on a Hobbs Act conspiracy as the predicate “crime of violence” are invalid. Unfortunately, the Second Circuit held that substantive Hobbs Act robbery  qualifies under the force clause, in United States v. Hill, 890 F.3d 51(2018)


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Wednesday, June 26th, 2019

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines a “crime of violence” to mean “an offense that is a felony” and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

So what happens now? Here’s a quick overview:

  1. Davis means that the Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), which upheld the constitutionality of the residual clause, is no longer good law. And more specifically, the Supreme Court is likely to grant the pending petition for certiorari in Barrett, vacate that
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Friday, January 25th, 2019

The 924(c)(3)(B) Circuit Split Grows (in a Good Way)

This week, the Fourth Circuit held in United States v. Simms, No. 15-4640 (4th Cir. 2019) (en banc) that § 924(c)(3)’s residual clause is unconstitutionally vague and therefore that conspiracy to commit Hobbs Act robbery is not a crime of violence. The decision deepens the Circuit split on this issue, which the Supreme Court will soon address in Davis.

Notably, the en banc majority in Simms declined to apply the constitutional avoidance canon to adopt a conduct-specific reading of § 924(c)(3)(B). The avoidance canon has “no application,” the Court stated, where “there is an absence of more than one plausible construction” of the statute. Slip op. at 41 (quotation marks omitted). As the Court explained elsewhere, the government’s favored reading of § 924(c)(3)(B) is implausible because its text and structure “unambiguously require courts to analyze the attributes of an ‘offense that is a felony . . . by …


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Categories: 924(c), categorical approach, conspiracy, crime of violence, Hobbs Act, Johnson

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Friday, January 11th, 2019

Cert. Grant in Davis

The Supreme Court recently granted a certiorari petition in Davis v. United States that presents the following questions:

(1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague;

(2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and

(3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Practitioners should take care to preserve challenges to § 924(c)(3)’s residual clause notwithstanding the Second Circuit’s holding in Barrett, and to preserve arguments that offenses such as Hobbs Act robbery (and conspiracy to commit that offense) are not crimes of violence under  § 924(c)(3). (Note that, as of the date of this post, the mandate has not issued in Barrett.)…


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Categories: 924(c), ACCA, categorical approach, certiorari, conspiracy, crime of violence, Hobbs Act, Johnson

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Wednesday, May 9th, 2018

Second Circuit Issues Amended Ruling in Hill

Today the Second Circuit issued an amended opinion in United States v. Hill, holding that Hobbs Act Robbery is a crime of violence under 18 U.S.C. 924(c)(3)(A) (924(c)’s so-called “force clause”).

The good news about the decision is that it omits the portion of the earlier-issued opinion that upheld against a vagueness challenge 18 U.S.C. 924(c)(3)(B) (924(c)’s so-called “residual clause” or “risk of force clause”).  This was a hoped-for development in light of the Supreme Court’s decision last month in Sessions v. Dimaya.

This means there is no longer any holding from the Second Circuit that 924(c)’s residual clause survived Johnson. This should mean district courts will see a green light to find that 924(c)’s residual clause, and the identical clause in the Bail Reform Act, are void.

The bad news is the portion of the original holding that remains intact, that Hobbs Act robbery is a …


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Tuesday, September 26th, 2017

Second Circuit Reverses Skelos Convictions

In a relatively lengthy summary order, the Second Circuit reversed Dean and Adam Skelos’s convictions in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The order is available here.

Dean Skelos and his son were convicted under the Hobbs Act and the honest services and federal bribery statutes. Each of their charged offenses included the performance of an “official act” as an element. The district court’s jury instructions provided that an “official act” does “not need to be specifically described in any law, rule, or job description, but may also include acts customarily performed by a public official with a particular position.” Sum. Order at 3. Consistent with this definition, a government witness testified that the “official duties” of a state senator included “assist[ing] individuals or companies in getting meetings with state agencies.” Id. at 11. Subsequent to trial, the …


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